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The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?

  • Vincent-Joël Proulx (a1)

Extract

The International Court of Justice (ICJ) has mostly emphasized substance over form and developed a pragmatic, flexible, objective, and fact-based analytical approach to jurisdiction. That is until a recent series of judgments veering towards jurisdictional formalism. However, to truly reflect its designation as the “World” Court, the UN's principal judicial organ must surely adjudicate some of the “big cases” with global security implications and involving important obligations erga omnes beyond strictly bilateral dynamics: the Marshall Islands cases were as good contenders as any for the Court to enhance its legitimacy capital. 1 As a corollary, accepting this role might entail that the Court interpret its jurisdiction in a flexible and progressive manner, which had always been its mantra up until recently, so that the “big cases” have a chance of getting their foot in the door and being litigated.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 Before the judgments were delivered, commentators opined that these cases would undermine the Court's legitimacy. See Katherine Davis, Hurting More than Helping: How the Marshall Islands’ Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court, 25 Minn. J. Int'l L. 79 (2016).

2 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996(I) ICJ Rep. 226, 264 (July 8) (also cited in Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. India), Preliminary Objections para. 19 (Oct. 5, 2016) [hereinafter RMI v. India]; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. Pak.), Preliminary Objections para. 19 (Oct. 5, 2016) [hereinafter RMI v. Pakistan]; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. UK), Preliminary Objections para. 20 (Oct. 5, 2016) [hereinafter RMI v. UK].

3 By analogy, see Armed Activities on the Territory of the Congo (New Application: 2002) (Dem. Rep. Congo v. Rwanda), Jurisdiction and Admissibility, 2006 ICJ Rep. 6, 31–32 para. 64, 52 para. 125 (“the erga omnes character of a norm and the rule of consent to jurisdiction are two different things” and the “mere fact” that a dispute involves such obligations “would not give the Court jurisdiction”).

4 See also, Christian Tams, No Dispute About Nuclear Weapons?, EJIL: Talk! (Oct. 6, 2016) (“the ‘PCIJ's and ICJ's jurisprudence offers various ‘definitions’ of the notion [of dispute]—from ‘disagreements on points of law or fact’ à la Mavrommatis to ‘positively opposed claims’ (South West Africa)”).

5 RMI v. India, supra note 2, at paras. 34, 36; RMI v. Pakistan, supra note 2, at paras. 34, 36; RMI v. UK, supra note 2, at paras. 37, 39.

6 RMI v. India, supra note 2, at para. 35; RMI v. Pakistan, supra note 2, at para. 35; RMI v. UK, supra note 2, at para. 38.

7 RMI v. India, supra note 2, at paras. 37–40; RMI v. Pakistan, supra note 2, at paras. 37–40; RMI v. UK, supra note 2, at paras. 40–43.

8 RMI v. India, supra note 2, at para. 38; RMI v. Pakistan, supra note 2, at para. 38; RMI v. UK, supra note 2, at para. 41.

9 RMI v. India, supra note 2, at paras. 41–53; RMI v. Pakistan, supra note 2, at paras. 41–53; RMI v. UK, supra note 2, at paras. 44–57.

10 See RMI v. India, Dissenting Opinion of Judge Crawford paras. 24–28.

11 Id. at paras. 7–9. See also, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croat. v. Serb.), Preliminary Objections, 2008 ICJ Rep. 412, 438, 441 (Nov. 18); Robert Kolb, The International Court of Justice 315 (2013).

12 See RMI v. India, Separate Opinion of Judge Tomka paras. 14–16; RMI v. Pakistan, Dissenting Opinion of Judge Robinson paras. 41 ff.

13 Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicar. v. Colom.), Preliminary Objections para. 73 (Mar. 17, 2016).

14 See RMI v. India, Declaration of Vice-President Yusuf paras. 7–8; Separate Opinion of Judge Sebutinde paras. 30–32; Dissenting Opinion of Judge Bennouna 5; Dissenting Opinion of Judge Robinson paras. 26–27; Dissenting Opinion of Judge Crawford paras. 3–6 (this approach “effectively transforms a non-formalistic requirement into a formalistic one through the use of the term ‘awareness' ”).

15 RMI v. India, Dissenting Opinion of Judge Robinson para. 38.

16 Id.

17 See RMI v. India, RMI v. Pakistan, RMI v. UK, Declaration of Judge Gaja; RMI v. India, Separate Opinion of Judge Bhandari paras. 51ff.; RMI v. Pakistan, Separate Opinion of Judge Bhandari paras. 16 ff.; RMI v. UK, Separate Opinion of Judge Bhandari paras. 16 ff.

18 On SR and communitarian norms, see James Crawford, Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on Responsibility of States for Internationally Wrongful Acts, in From Bilateralism to Community Interest: Essays in Honour of Judge Bruno Simma 224 (Ulrich Fastenrath et al eds., 2011).

19 On invocation of SR involving multiple parties, see James Crawford, State Responsibility: The General Part 644–674 (2013).

20 RMI v. India, RMI v. Pakistan, RMI v. UK, Declaration of Judge Xue para. 8.

21 See also, RMI v. India, Dissenting Opinion of Judge Crawford para 21. For the applicant's arguments, see RMI v. Pakistan, Memorial of Marsh. Is. paras. 31–39 (Jan. 12 2015) (invoking these provisions); RMI v. Pakistan, Application Instituting Proceedings para. 35 (Apr. 24, 2014) (ascribing an erga omnes character to the relevant obligations).

22 The Court concluded that the Convention against Torture enshrines obligations erga omnes inter partes: Questions relating to the Obligation to Prosecute or Extradite (Belg. v Sen.), 2012 ICJ Rep. 422 paras. 67–68.

23 See Judge Tomka's persuasive discussion of admissibility in RMI v. India, RMI v. Pakistan, RMI v. UK, Separate Opinion of Judge Tomka Part II.

24 See RMI v. India, RMI v. Pakistan, RMI v. UK, Declaration of Judge Gaja; RMI v. India, Separate Opinion of Judge Bhandari paras. 51ff.; RMI v. Pakistan, Separate Opinion of Judge Bhandari paras. 16 ff.; RMI v. UK, Separate Opinion of Judge Bhandari paras. 16 ff.

25 RMI v. Pakistan, Memorial of Marsh. Is. para. 35.

26 South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, 1962 ICJ Rep. 319, 346 (Dec. 21). In fairness, the Court acknowledged that a dispute can be identified through multilateral exchanges, but insisted on the positive opposition of claims. See RMI v. India, supra note 2, and RMI v. Pakistan, supra note 2, at paras. 36, 45; RMI v. UK, supra note 2, at paras. 39, 48; RMI v. India, RMI v. Pakistan, Dissenting Opinion of Judge Crawford paras. 20–21 (stressing that “[t]his does not require the Court to treat the underlying relations as bilateral ab initio”). Interestingly, in 1987 Damrosch suggested that “the two-party, zero-sum dispute may well already be the exception rather than the rule.” See Lori Damrosch, Multilateral Disputes, in The International Court of Justice at a Crossroads 376, 376 (Lori F. Damrosch ed., 1987).

27 RMI v. India, RMI v. Pakistan, Dissenting Opinion of Judge Crawford para. 21.

28 See RMI v. India, RMI v. Pakistan, Declaration of Vice-President Yusuf para. 12, Separate Opinion of Judge Tomka paras. 20, 26, Dissenting Opinion of Judge Bennouna 1–4, Dissenting Opinion of Judge Cançado Trindade paras. 11–13, 21–22, 30–32, 318, Separate Opinion of Judge Sebutinde paras. 1, 10, 13, 16, 26, 31–32, Dissenting Opinion of Judge Robinson paras. 27, 39, 53 (implicitly), Dissenting Opinion of Judge Crawford paras. 5, 18, Dissenting Opinion of Judge ad hoc Bedjaoui paras. 9, 11, 24, 48, 51, 77. But see RMI v. India, RMI v. Pakistan, Separate Opinion of Judge Tomka para. 17 (rejecting the idea that Georgia v. Russia marked the “beginning of a more formalist approach”).

29 RMI v. India, Separate Opinion of Judge Tomka paras. 39–41.

30 RMI v. India, RMI v. Pakistan, RMI v. UK, Separate Opinion of Judge Tomka para. 35.

31 RMI v. India, Separate Opinion of Judge Tomka paras. 35, 38.

32 RMI v. UK, Separate Opinion of Judge Tomka paras. 38–39.

33 RMI v. UK, Declaration of Judge Xue paras. 9–11.

34 RMI v. UK, Dissenting Opinion of Judge Crawford paras. 33–34. For a critical take on Monetary Gold and the “strict inter-State outlook,” see RMI v. UK, Dissenting Opinion of Judge Cançado Trindade paras. 128–131.

36 But see RMI v. India, RMI v. Pakistan, RMI v. UK, Declaration of Judge Xue paras. 12–13 (citing the preamble via the Nuclear Weapons Advisory Opinion).

37 SC Res. 984 para. 6 (11 April 1995) (emphasis added).

I thank Tony Anghie for illuminating discussions about the cases. All views and errors are mine alone.

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