scholarly journals On Form, Substance, and Equality Between States

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 75-80 ◽  
Author(s):  
George R. B. Galindo
Keyword(s):  
Case Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
Nuclear Arms Race

The International Court of Justice (ICJ)’s 2016 judgments on the three cases Obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament show the omnipresence of the dichotomy between form and substance in the Court's case-law. Commentators and several dissenting judges have stressed that the judgments represent a landmark in the sense that the Court has radically departed from the consideration of flexible standards in applying procedural rules to the determination of the issue of identification of a legal dispute. In other words, it made form prevail over substance.

MULTILATERAL DISPUTES IN BILATERAL SETTINGS: INTERNATIONAL PRACTICE LAGS BEHIND THEORY

2017 ◽  
Vol 76 (01) ◽  
pp. 1-4
Author(s):  
Federica I. Paddeu
Keyword(s):  
Arms Race ◽  
Marshall Islands ◽  
Customary Law ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race ◽  
The Uk ◽  
Nuclear Arms

ON 5 October 2016, the International Court of Justice handed down its decision in the three parallel proceedings involving the Marshall Islands (as applicant) and India, Pakistan and the UK (as respondents): Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India). The Marshall Islands claimed that the respondent states had failed to meet their obligation to negotiate the cessation of the nuclear arms race and nuclear disarmament in good faith, either under Article VI of the Non-Proliferation Treaty (claim against the UK) and/or customary law (against all three respondents). All three respondents formulated objections to jurisdiction and admissibility. In all three cases, they objected that a “dispute” did not exist between them and the applicant. The Court, by a narrow majority (extremely narrow in the case against the UK: by the casting vote of the President), declined to exercise jurisdiction on the basis that no dispute existed between the parties.

scholarly journals Nuclear Weapons Before the International Court of Justice: A Critique of the Marshall Islands v United Kingdom Decision

2018 ◽  
Vol 49 (1) ◽  
pp. 53
Author(s):  
Devesh Awmee
Keyword(s):  
United Kingdom ◽  
Nuclear Weapons ◽  
Arms Race ◽  
Marshall Islands ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race

The International Court of Justice recently gave judgment in Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. The case concerned three parallel claims brought by the Marshall Islands against India, Pakistan and the United Kingdom for their alleged failure to fulfil obligations concerning negotiations relating to the cessation of the nuclear arms race and nuclear disarmament under art VI of the Non-Proliferation Treaty and customary international law. The Court in all three proceedings dismissed the claims at the preliminary objections phase on the sole ground that a legal dispute did not exist between the parties. In determining whether a legal dispute existed, the Court appears to have deviated from the objective determination taken in its previous jurisprudence by introducing, for the first time, a new requirement of "awareness". The Court also failed to address the other preliminary objections brought by the United Kingdom such as the Monetary Gold principle, which appears to have been a more credible avenue for the Court to dismiss the case. The case illustrates the failure by the Court to yet again confront the issue of nuclear weapons.

Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance?

2019 ◽  
Vol 10 (4) ◽  
pp. 599-621
Author(s):  
Manuel Casas
Keyword(s):  
National Security ◽  
International Law ◽  
Arms Race ◽  
Nuclear Disarmament ◽  
Private International Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race ◽  
International Adjudication

Abstract In the recent Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament string of cases the International Court of Justice declined jurisdiction by holding that there was no dispute between the parties. This Article examines the Court’s treatment of the existence of a dispute (‘EoD’) jurisdictional objection; it does not purport to analyze the Court’s broader reliance on jurisdictional doctrines as a general means of avoiding cases. From a doctrinal perspective, this Article argues that the Court's interpretation of the EoD objection in those cases is unpersuasive. Instead, the Article contends that the Court has relied on the existence of a dispute objection as a covert or functional justiciability doctrine. That is, as a ground for discretionarily declining jurisdiction or, to borrow a term from private international law, as an escape device. The Article considers that such jurisdictional avoidance may be normatively justified as a form of principled avoidance. Normatively, the decision to rely on a procedural technicality to avoid going into the merits of a potentially explosive case may be seen as a valid exercise of judicial self-restraint—something that can aid the Court navigate the tensions created by increased skepticism of international adjudication. And policy-wise, avoiding a case on a sensible subject-matter, that touches on core aspects of defense and national security, could be accepted as a way of side-stepping potential backlash.

International Obligations Concerning Disarmament and the Cessation of the Nuclear Arms Race: Justiciability over Justice in the Marshall Islands Cases at the International Court of Justice

2019 ◽  
Vol 24 (3) ◽  
pp. 449-472
Author(s):  
Jonathan Black-Branch
Keyword(s):  
International Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Sufficient Evidence ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Nuclear Arms Race ◽  
The Uk

Abstract The International Court of Justice rulings in cases from the Marshall Islands against India, Pakistan and the UK not only failed to answer important questions regarding obligations to negotiate a nuclear cessation treaty and to disarm, but also raise new questions relating to the existence of a dispute under general international law. The Respondents objected to the Court’s jurisdiction to hear the case on the grounds that there was no justiciable dispute between them and the Marshall Islands, arguing that the issues should not be adjudicated within this forum. The Court agreed, finding there was not sufficient evidence of a dispute, per se, and consequently did not have jurisdiction to hear these cases on their merits as the Respondents were not aware of contentious issues. In the case of the UK, in particular, it was decided by a narrow majority, raising important questions about the Court’s strictly formalistic, and more importantly, unprecedented, approach regarding the existence of a dispute under international law. More significantly, the ruling avoided answering important questions relating to long-standing international obligations regarding disarmament and negotiations toward a treaty to cease the arms race pursuant to Article VI of the Nuclear Non-Proliferation Treaty, 1968. This article provides an overview and analysis of the Marshall Islands cases, examining the main legal issues and arguments, focusing on the Court’s reasoning and highlighting the division within the Court on substantive matters pertaining to obligations of nuclear-armed states.

The LOSC as a Package Deal and Its Implications for Determination of Customary International Law

2020 ◽  
Vol 35 (4) ◽  
pp. 704-739
Author(s):  
Xuexia Liao
Keyword(s):  
International Law ◽  
Case Law ◽  
Law Of The Sea ◽  
Not Given ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
United Nations Convention

Abstract This article revisits the package deal nature of the United Nations Convention on the Law of the Sea (LOSC) and its implications for determining customary international law. A survey of the case law illustrates that the International Court of Justice (ICJ) has not given particular weight to the fact that the LOSC was negotiated and accepted as a package deal. Nevertheless, the ICJ’s declaration that Article 121, paragraph 3 of the LOSC is a customary rule tends to be based on a ‘package deal approach’, which focuses on the textual and logical links between the paragraphs that manifest an ‘indivisible régime’. By exploring the difficulties of determining the customary status of Article 76(2)–(7) concerning the continental shelf beyond 200 nautical miles, which may arise in the pending Nicaragua v. Colombia II case, this article calls for a cautious attitude towards determination of customary rules from the LOSC.

The authority of inter-state arbitral awards in the case law of the International Court of Justice

2019 ◽  
Vol 32 (3) ◽  
pp. 561-584
Author(s):  
Vladyslav Lanovoy
Keyword(s):  
Rule Of Law ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Authority ◽  
International Court Of Justice ◽  
Arbitral Award ◽  
Court Of Justice ◽  
International Court ◽  
Inter State

AbstractArticle 38(1)(d) of the Statute of the International Court of Justice attributes limited legal authority to judicial and arbitral decisions. They are not formal sources of law and are described as only subsidiary means for the determination of rules of law. However, the continuing validity of this characterization is challenged not only by the Court’s practice of referring to its own jurisprudence, a phenomenon that has been empirically and theoretically analysed elsewhere, but also its relatively new practice of relying on external case law. This article seeks to draw attention to one aspect of this new practice, namely the marked increase in the Court’s citation of inter-state arbitral awards since the 1990s. It is argued that the Court refers to inter-state arbitral awards in its decisions for three principal reasons – (i) to determine the existence of a given rule, (ii) to supplement its legal reasoning or its own case law on a particular issue, and (iii) to distinguish an arbitral award from the case before it. More ambitiously, the article argues that the way the Court relies on inter-state arbitral awards shows that the Court attributes legal authority to these awards that goes beyond that of a subsidiary means for determining a given rule of law, bringing it closer to what might be qualified as persuasive but non-binding precedent.

scholarly journals Investigating the Petition of Marshall Islands against Britain in the International Court of Justice

2017 ◽  
Vol 10 (4) ◽  
pp. 15
Author(s):  
Sahar Asadi Moghadam ◽  
Abu Mohammad Asgar Khani
Keyword(s):  
Nuclear Weapons ◽  
The United States ◽  
Marshall Islands ◽  
International Court Of Justice ◽  
Federal Judiciary ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
Nuclear Tests ◽  
First Time

The international court of justice was established by Charter of the United Nations and is considered as one of its integral parts in which only experienced and knowledgeable judges and lawyers can be employed. In fact, it consists of several independent judicial institutions. Marshall Islands, a country which was cruelly imposed to nuclear tests, was brave enough to sue powerful countries with nuclear weapons. In 1996, nuclear weapons case was considered by the international court of justice for the first time. All the court’s members came to this conclusion that these countries should stop their nuclear activities and they are not permitted to use any nuclear weapon. As a result they ratified a bill. Then, Marshall Islands’ petition was considered by the international court of justice in The Hague. This country also took legal action against U.S.A. and the federal judiciary of the United States accepted to take it into consideration. This paper aims at analyzing the petition of Marshall Islands against Britain in the international court of justice. According to the content of this petition, countries can’t develop their nuclear weapons which threat men and the world. As a result, the destruction of present nuclear weapons is the only effective way to achieve this goal.

scholarly journals INTERPRETASI INTERNATIONAL COURT of JUSTICE (ICJ) PADA PASAL VI PERJANJIAN NON-PROLIFERATION TREATY 1968 (NPT)

Arena Hukum ◽  
2021 ◽  
Vol 14 (2) ◽  
pp. 349-367
Author(s):  
Taufik Nugraha
Keyword(s):  
Soviet Union ◽  
Nuclear Weapon ◽  
Arms Race ◽  
International Court Of Justice ◽  
Early Date ◽  
Court Of Justice ◽  
Nuclear Weapon State ◽  
The Soviet Union ◽  
International Court ◽  
Nuclear Arms Race

It has been 50 years since the Non-Proliferation Treaty was made by America, England, and the Soviet Union to prevent the nuclear arms race in the future. However, Article VI of NPT consisted of ambiguity and has sparked long-lasting debate questioning NPT electiveness. Article VI at least has been examining twice by the International Court of Justice (ICJ) in 1996 and 2014. Unfortunately, those examinations were unsatisfied regarding when Nuclear Weapon State (NWS) should cease and disarmament their nuclear weapon? If referring to “an early date,” it should be done years long ago and not taking more than 50 years with pathetic achievement. Finally, this article will examine the current development of NWS using a normative juridical method according to existing nuclear regulation, ICJ Commentary, which resulting in a suggestion when NPT 1968 parties should fulfil their obligation under Art VI NPT 1968.

The British title to sovereignty in the Falkland Islands Dependencies

Polar Record ◽  
1956 ◽  
Vol 8 (53) ◽  
pp. 125-151 ◽  
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Falkland Islands ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
United Kingdom Government

In an attempt to settle the dispute between the United Kingdom, Argentina and Chile over sovereignty in the Falkland Islands Dependencies, the United Kingdom made unilateral Applications to the International Court of Justice at The Hague on 4 May 1955. The Applications set out the British title, and asked the Court to declare that the Argentine and Chilean encroachments in British Antarctic territory were illegal and invalid under international law.Both the Argentine and Chilean Governments refused to accept the jurisdiction of the Court.* The United Kingdom Government subsequently expressed its regret at these refusals, and placed on record the fact that it had now taken every step open to it to bring about a peaceful and amicable determination of this question of sovereignty in accordance with the letter and spirit of the Charter of the United Nations. On 18 March 1956 the International Court announced that since neither Argentina nor Chile was prepared to accept the Court's jurisdiction, both cases had been removed from its list.

Legal Maxims: Summaries and Extracts from Selected Case Law

2018 ◽  
Author(s):  
Giuliana Ziccardi Capaldo
Keyword(s):  
Case Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Equatorial Guinea ◽  
Nuclear Disarmament ◽  
Criminal Proceedings ◽  
Nuclear Arms Race ◽  
Nuclear Arms

Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament(Marshall Islands v. India) Jurisdiction of the Court and Admissibility of the Application, Judgment, 5 October 2016Immunities and Criminal Proceedings (Equatorial Guinea v. France), Request for the Indication of Provisional Measures, Order, 7 December 2016...

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