I. Introduction: The move from flexibility to formalism
The jurisdiction of international courts is a perennial issue in international law. To the uninitiated and perhaps to some domestic lawyers as well, the ways in which the international legal system operates might appear counterintuitive. In many ways, the peculiarities of that system remain intertwined with the fundamental principle of state consent, expressed critically by some as the ‘voluntarist’ conception of international law.Footnote 1 Therefore, it may seem odd to those approaching this system through a different lens that international courts must always (and sometimes painstakingly) ensure that they have jurisdiction before proceeding to the merits of a case.Footnote 2
Whilst some scholars have demonstrated the complicated relationship between formalism and international law sources,Footnote 3 other aspects of the international legal system have been characterized by flexibility and pragmatism. For instance, when compared to many domestic legal orders, international law's treatment of evidentiary matters falls into that category. For example, the evidentiary practice of the ICJ, also known as the World Court, can only be described as flexible and pragmatic.Footnote 4
Traditionally, the Court has also approached jurisdictional issues from a similar standpoint. Even a cursory review of its jurisprudence, including that of its predecessor the Permanent Court of International Justice (PCIJ), reveals that it has long favoured a factually objective, context-sensitive, flexible and pragmatic jurisdictional attitude. This approach was particularly apt in addressing procedural defects and other shortcomings arising anytime between the first prospect of a dispute between parties, to the date of the institution of proceedings, to the date of the judgment on jurisdictional objections. Historically, when addressing those types of defects and ascertaining whether a legal dispute had crystalized, the Court brandied a recurrent mantra: substance over form.Footnote 5
In recent years, however, the Court has handled several cases in which parties hold conflicting views over the existence of their would-be legal disputes, thereby inducing it (unnecessarily) to revisit its jurisprudence on the existence of a dispute. Whilst the accumulated wisdom of nearly a century of institutionalized state-to-state dispute settlement clearly suggests substance over form, a shift occurred in the Court's recent jurisprudence on contentious jurisdictional issues, arguably dating back to 2011.Footnote 6 In April 2011, the Court handed down its decision in Georgia v. Russia which, although ultimately held that a dispute had arisen prior to the institution of proceedings,Footnote 7 signalled a departure from the considerable flexibility that had animated its reasoning in previous instances.
Its voluminous treatment of the first preliminary objection – raised in relation to the would-be absence of a dispute – suggested a court moving away from the idea of flexibility, and into the business of formalistically scrutinizing jurisdictional matters.Footnote 8 Subsequently, the Court further pursued this path of jurisdictional formalism by partially upholding objections based on the premise that a dispute had failed to crystallize between the parties. In Belgium v. Senegal, it declined to accept that a dispute existed over alleged breaches under customary international law at the time the proceedings were instituted, exemplified by Senegal's alleged failure to prosecute Mr Hissène Habré pursuant to customary crimes.Footnote 9 The Court stressed that ‘[i]n terms of the Court's jurisdiction, what matters is whether, on the date when the Application was filed, a dispute existed between the parties’ on this matter.Footnote 10 More recently, the Court similarly upheld Colombia's preliminary objection in the Alleged Violations case, ‘in so far as it concern[ed] the existence of a dispute regarding alleged violations by Colombia of its obligation not to use force or threaten to use force’.Footnote 11 In both cases, however, the Court adjudicated other aspects of the disputes over which it did take jurisdiction.
In October 2016, it delivered its judgments in the Marshall Islands cases (RMI Cases), thereby further buttressing its formalistic jurisdictional shift. In 2014, the applicant initiated proceedings against the world's nine nuclear states (and would-be nuclear powers), alleging their non-conformity with their obligations to conduct negotiations on nuclear disarmament and the cessation of the nuclear arms race.Footnote 12 These allegations were levelled both under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and customary international law. Given that a potential jurisdictional basis – three distinct ‘optional clause’ declarations under the Court's Statute – existed only in three of the nine disputes, the Court added the cases involving India, Pakistan, and the United Kingdom (UK) on its docket. Whilst the applicant hoped to entice the other six states to join the proceedings through the forum prorogatum doctrine,Footnote 13 their participation did not materialize.
The Court held that it had no jurisdiction to hear the merits in all three cases, given that no legal disputes existed between the parties.Footnote 14 Some judges underscored these precedents as marking a first in the course of nearly a century of state-to-state dispute settlement, namely: the unprecedented holding by the Court, or by the PCIJ for that matter, that it did not have jurisdiction because the applicant had failed to establish the existence of a dispute at the time the proceedings were instituted.Footnote 15
This contribution critically situates these judgments within the context of the law of state responsibility (SR) and global security, with emphasis on the broader implications going forward. Part II explores the principal features of the Court's formalistic shift on jurisdictional matters in the RMI Cases. In Part III, the article turns to the decisions’ broader implications for SR, underscoring that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, SR law, and broader questions of access to justice in multilateral disputes. In conclusion, Part IV highlights the importance of identifying creative solutions in this context, suggesting the United Nations (UN) General Assembly (UNGA) as a law-making facilitator and the UN Security Council (UNSC) as an alternate dispute settlement forum to tackle multilateral disputes with global security implications.
II. The Court's consecration of jurisdictional formalism
It is unnecessary to review all the intricacies of the RMI Cases. The rich separate and dissenting opinions provide both an accurate snapshot of the legal controversies that divided the Court, and of the perceived misapplication of relevant principles by the majority. Rather, this section highlights some of these decisions’ more problematic features. The first such aspect is that the Court has produced a wealth of jurisprudence exhibiting flexibility and pragmatism on jurisdictional matters. Yet, the RMI Cases, whilst they cite some of this jurisprudence, stray considerably from its essence.Footnote 16 Indeed, the Court referred to the well-known Mavrommatis decision in reiterating the classical definition of ‘dispute’, observing that it manifests in ‘a disagreement on a point of law or fact, a conflict of legal views or of interests’ between parties.Footnote 17
A pre-April 2011 review of ICJ jurisprudence confirms that the ‘Mavrommatis formulation has been repeated in a remarkably consistent and continuous way’, although it ‘has now and then been subjected to subtle minor variations, and also to some rather questionable additions’.Footnote 18 Consequently, the ‘PCIJ's and ICJ's jurisprudence offers various “definitions” of the notion [of legal dispute] – from “disagreements on points of law or fact” à la Mavrommatis to “positively opposed claims” (South West Africa)’.Footnote 19 The Court appeared to heed these jurisprudential nuances, adding that a legal dispute implies that ‘[i]t must be shown that the claim of one party is positively opposed by the other’, a ‘matter for objective determination by the Court which must turn on an examination of the facts’.Footnote 20
In its analysis, the Court signalled that it would favour ‘substance over form’ and that ‘optional clause’ declarations do not impose a requirement of negotiations between parties (unless expressly required), or that a formal diplomatic protest be voiced by either party, to evidence the existence of a dispute prior to the Court's seisin.Footnote 21 It added that the conduct exhibited by parties, both before and after the application's filing, could become relevant to demonstrate the absence or crystallization of a dispute, or assist in better defining the substance and subject-matter of the disagreement.Footnote 22 This view aligns with recent scholarly understandings of ICJ jurisdiction, expressed prior to the delivery of these judgments, with commentators noting that ‘[t]he existence of “opposing views” is sufficient to constitute a dispute, provided that the opposing views are somehow reflected in the attitude of the parties’.Footnote 23
However, in the RMI Cases the Court applied that jurisprudence in a way that can be construed as incongruent with the flexible and pragmatic driving force that animated its classical approach, thereby adding ‘more than subtle variations and questionable additions’, to rephrase the earlier scholarly view.Footnote 24 Therefore, the Court's posture in these cases which, in many ways, consecrates a shift towards jurisdictional formalism, carries with it profound implications on both the substance and timing of the notion of the ‘existence of a dispute’.
In terms of substance, the Court has tacked on a new dimension to the applicable jurisdictional standard when investigating whether a genuine legal dispute exists. The irony in the Court's reasoning is that, although its pre-April 2011 jurisprudence consistently promoted substance over form, the RMI Cases not only seemingly prioritize form over substance, but also presumably formalize the very substance of the Court's jurisdiction by considerably raising the bar to meet in establishing the existence of a dispute. Perhaps the most troubling aspect of the decisions – from a legal standpoint – resides in the juxtaposition of the criterion of ‘objective awareness’ with the usual considerations pertaining to the existence of a dispute.Footnote 25 In summary, this signifies that ‘a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were “positively opposed” by the applicant’.Footnote 26
The applicant sought to justify that a dispute had manifested through statements it made in multilateral conferences, accusing the respondents of not complying with their obligations to negotiate nuclear disarmament and cease their participation in the nuclear arms race. The first such statement was made in 2013 by the applicant's Foreign Minister at the UN High Level Meeting on Nuclear Disarmament, which the Court ultimately equated with ‘hortatory’ rhetoric, as opposed to an ‘allegation’ that the nuclear powers were ‘in breach of any of [their] legal obligations’.Footnote 27 In the second instance, the applicant's representative delivered a more substantial statement at the 2014 Second Conference on the Humanitarian Impact of Nuclear Weapons, held at Nayarit, Mexico.Footnote 28
Undoubtedly, this Second Conference was very much in line with the spirit of nuclear disarmament, including attendant obligations to negotiate towards that end, although the Court concluded that ‘the subject of the conference was not specifically the question of negotiations with a view to nuclear disarmament, but the broader question of the humanitarian impact of nuclear weapons’.Footnote 29 To some, this conclusion might appear somewhat artificial and, in any event, it might be difficult (perhaps disingenuous) to maintain that the UK was ‘unaware’ of the applicant's allegations against it concerning its nuclear disarmament obligations.Footnote 30 Indeed, the PCIJ declared that ‘[a] difference of opinion does exist as soon as one of the Governments concerned points out that the attitude adopted by the other conflicts with its own views’.Footnote 31 Surely, a meticulous reading of the applicant's statements, along with their whole contexts, strongly suggests the existence of a dispute. After all, the leading commentator on the ICJ once observed that ‘[t]he diplomatic underpinnings showing the existence of the dispute are sometimes very brief – perhaps a meeting or two of the Security Council leading to a vote which the applicant finds unsatisfactory or unacceptable’.Footnote 32
Turning to the new ‘objective awareness’ criterion, the Court held that the applicant had not met this threshold, particularly since it failed to expressly (or, at least, more clearly) formulate its allegations against the respondent states before instituting proceedings.Footnote 33 Whilst it might have been clear from the evidence that the applicant had called out the respondents – rather forcefully – for failing to comply with their obligations in the abovementioned multilateral fora,Footnote 34 one logical extension of the majority's reasoning is that the claimant failed to sufficiently ‘bilateralize’ or individualize the relevant disputes against the specific respondents.Footnote 35 Unsurprisingly, the respondents stressed that the applicant had not identified them specifically by name when voicing its opposition to their nuclear policies, which they could not have construed as an invocation of their responsibility for international law violations.Footnote 36
When assessing the evidentiary weight of exchanges made in multilateral fora, the Court specified that it ‘must give particular attention, inter alia, to the content of a party's statement and to the identity of the intended addressees’, stopping short of requiring that such addressees be identified by name.Footnote 37 As some judges highlighted, it might be disingenuous to contend that the respondents had been unaware of the allegations levelled against them, as the identity of nuclear powers and the applicant's grievances regarding nuclear disarmament were matters of considerable notoriety.Footnote 38 The majority's approach might be a disservice to the prospect of multilateral diplomacy, which can create an informal space in which both legal claims can be expressed and friendly dispute settlement promoted. After all, the Manila Declaration stresses that the submission of a dispute to the ICJ should not be construed as an ‘unfriendly’ act by the respondent.Footnote 39 Nevertheless, a careful review of the case-file, including the conduct exhibited by the parties after the institution of proceedings – e.g., views expressed before the Court in written pleadings and orally – suggests that a dispute had arisen by the date of the judgments at the latest, but likely earlier. Ultimately, the clearly opposed views expressed by the parties after the date of filing were insufficient to crystalize the dispute. For the Court, a contrary conclusion would have ‘deprived [the respondents] of the opportunity to react before the institution of proceedings to the claim[s] made against [their] own conduct’ and would have ‘subverted’ ‘the rule that the dispute must in principle exist prior to the filing of the application’.Footnote 40
This is where timing becomes key and remains inextricably intertwined with the above jurisdictional issues. The Court rightly indicated that the mere filing of an application instituting proceedings cannot, by itself, generate the existence of a dispute: more is needed, a proposition with which many judges agreed.Footnote 41 Hence, the essential question is ‘whether enough of the dispute was in existence prior to the Application here and whether the Court has enough flexibility to recognize it as a dispute’.Footnote 42 Whether this question can be answered affirmatively depends on factual appreciation (particularly of the applicant's statements at multilateral conferences), although there is strong indication that a dispute had likely crystalized by the Nayarit conference.Footnote 43 Leaving aside the heightened burden of proving the existence of a dispute through ‘objective awareness’, the principal query regarding timing is as follows: should the Court have confined its examination of the existence of a dispute to the situation prevalent at the time of filing (April 2014), or, rather, at the time of the judgments’ delivery in October 2016? This question, coupled with the problematic introduction of the ‘objective awareness’ requirement, appears to have been the most divisive, driving the very narrow majorities in all three cases.Footnote 44
The Court sided with the former view, equating the wording in Article 38(1) of its Statute with the idea that cases brought to it require ‘disputes existing at the time of their submission’.Footnote 45 Undoubtedly, this approach conflicts rather strikingly with what Judge Crawford termed the ‘Mavrommatis principle’ and seminal ICJ case law promoting pragmatism and flexibility on jurisdictional matters, ‘which allows it to overlook defects in the Application when to insist on them would lead to a circularity of procedure’ or to a scenario ‘not in the interests of the sound administration of justice’.Footnote 46 This also appears to clash with the Court's flexible and realistic position in Croatia v. Serbia,Footnote 47 to invoke one example, although in the RMI Cases the Court avoided untangling apparent jurisdictional inconsistencies on timing issues in its jurisprudence.Footnote 48
What makes this line of argument particularly compelling is that the applicant was not barred from re-introducing fresh applications immediately after the judgments were delivered. In such eventuality, the conditions surrounding the ‘existence of a dispute’ would likely have been fulfilled based on the parties’ conduct subsequent to the initial applications, given that, inter alia, the respondents would undeniably have been aware of the allegations levelled against them (i.e., the claimant would have cured whatever procedural defect or ‘unmet condition’ at issue).Footnote 49 What is ironic is the Court's departure from a well-established line of cases (or, more broadly, a flexible judicial attitude), which was amplified by its own language in extrapolating the relevant rule: ‘[i]n principle , the date for determining the existence of a dispute is the date on which the application is submitted to the Court’ (emphasis added).Footnote 50
The determination of the ‘critical’ date to ascertain whether a dispute exists is not one of academic interest, but one of considerable practical relevance. Interestingly, President Abraham (then Judge) had relied on the above jurisprudence in his Separate Opinion in Belgium v. Senegal to insist that the Court should have noted the existence of a dispute over the alleged customary law breaches at the time of its judgment, citing formalism and lack of jurisprudential consistency as key concerns.Footnote 51 Similarly, in Georgia v. Russia he had lauded the Court's earlier pronouncements on the existence of a dispute, a jurisprudential line he perceived as ‘strictly realistic and practical . . . free of all hints of formalism’; he added that ‘in determining whether a dispute exists, the Court does so as of the date on which it decides (i.e., generally, the date of its judgment on the preliminary objections)’.Footnote 52 Conversely, in the RMI Cases, President Abraham effectively reversed himself for reasons expressed in his Declarations, now apparently defending the view that a dispute must have crystallized at the time of filing, rather than at the time of the judgments’ delivery, for the Court to take jurisdiction.Footnote 53 Unsurprisingly, scholars exhibited perplexity regarding President Abraham's and Judge Owada's support for the majority's approach, given that they had previously been ‘highly critical of earlier extensions of the concept [of a legal dispute]’,Footnote 54 particularly in Belgium v. Senegal.Footnote 55 However, prior to these cases other publicists had already firmly concluded that ‘[t]he moment at which a dispute must have existed is the date of the institution of proceedings’.Footnote 56
More importantly, at least four judges who voted against the Court's jurisdiction acknowledged that a dispute had arisen between the parties after the institution of proceedings.Footnote 57 Vice-President Yusuf espoused a compatible view but only in RMI v. UK, siding with the majority in the other two cases. In RMI v. UK, he declared that ‘[t]he institution of proceedings before the Court may . . . result in the subsequent crystallization of a nascent dispute’, concluding that:
[i]f a subjective element of a formalistic requirement such as “awareness” is to be demanded as a condition for the existence of a dispute, the applicant state may be able to fulfil such a condition at any time by instituting fresh proceedings.Footnote 58
Ultimately, he concluded that an ‘incipient dispute’ had arisen between the applicant and the UK prior to the date of filing, underscoring that this ‘nascent dispute ha[d] fully crystallized during the proceedings before the Court’, unlike what transpired in the two companion cases.Footnote 59
Therefore, timing becomes pivotal as the Court's rigid commitment to the date of filing as the ‘critical’ date undoubtedly dictated the cases’ outcomes. The jurisdictional straightjacket promoted by the Court dissuaded several judges from aligning their analysis with classical ICJ pronouncements stressing realism and flexibility, even though their appreciation of the facts was presumably more congruent with the spirit of that jurisprudence. This reality is particularly significant given that the operative clauses in RMI v. India and RMI v. Pakistan were adopted on a very narrow majority, whilst RMI v. UK was decided on the narrowest majority possible because of Vice-President Yusuf's conclusions. Indeed, the key dispositif clause was decided by the President's casting vote, an exceptional exercise of powers invoked for only the fourth time in ICJ history (and the second time during the current presidency).Footnote 60
III. Looking beyond the cases: Potential consequences for state responsibility and multilateral disputes
Beyond any strictly technical or legalistic reading, the RMI Cases have potentially more broad-reaching implications. For instance, they not only mark a considerable departure from the notion of jurisprudential consistency, at least in pre-Georgia v. Russia terms, but appear equally problematic from a methodological standpoint. A particularly intractable feature of the majority's reasoning was its heavy reliance on the Alleged Violations decision to bolster its imposition of the ‘objective awareness’ requirement.Footnote 61 It is striking that this judgment had not been delivered when the oral hearings were held in the RMI Cases, confirming that the parties could not have sought inspiration from this jurisprudential development in their arguments, let alone have anticipated the Court's admittedly unpredictable construction of that precedent. Indeed, when read in its context, the Alleged Violations judgment does not support the introduction of ‘objective awareness’ as a formal legal requirement.Footnote 62
Similarly, the Court's selective reliance on Georgia v. Russia to bolster its analysis on the ‘existence of a dispute’ appears questionable. Surely, the fact that that litigation was triggered by the application of a compromissory clause, as opposed to Article 36(2) declarations like in the RMI Cases, constitutes an immediate distinguishing factor. As suggested above,Footnote 63 the portion of Belgium v. Senegal over which the Court declined to take jurisdiction presents more analogous content to the RMI Cases. Furthermore, the specific compromissory clause in Georgia v. Russia featured inherent preconditions for seizing the Court (in particular, a precondition that attempts be made to settle the dispute by negotiation), thereby being ‘of limited value as a precedent given the peculiarities’ of that provision.Footnote 64 Surely, the nature of the jurisdictional basis alone affects the dynamic of the argument, considerably weakening the analytical relevance of Georgia v. Russia for present purposes.
Four decades prior to Georgia v. Russia, eminent publicists already acknowledged that a prior negotiation requirement built into a compromissory clause was ‘intimement liée à celle de l'existence d'un différend’.Footnote 65 Hence, the Court's reliance on these two precedents, dating back to 2011 and 2016 respectively, to consecrate the newly introduced ‘objective awareness’ criterion suggests that ‘the jurisprudence prior to April 2011 does not support the Majority's position’, and this impression is reinforced by the reality that ‘the passages cited by the Majority do not contain references to prior jurisprudence because they are, themselves, no more than factual statements’.Footnote 66
More importantly, the subject-matter of the obligations at play must be appreciated in their broader context. Some judges underscored that nuclear non-proliferation/disarmament constitutes a fundamental global security imperative, prompting them to envisage a role for the ICJ in vindicating the UN Charter's ideals.Footnote 67 The Court itself has reiterated more than once that it can play a role in the maintenance and restoration of international peace and security, within the confines of its jurisdiction, as the UNSC's primary responsibility in this field does not connote exclusivity. Furthermore, this role remains complementary – not competitive – with the UNSC's function, and the RMI Cases might be a good illustration of a situation that might benefit from both organs’ involvement (although the first attempt to seize the Court failed).Footnote 68 Contrary to the limitations imposed on the UNGA by Article 12(1) of the UN Charter,Footnote 69 nothing in that instrument suggests any kind of hierarchy between the UNSC and ICJ, or that they operate on some strict division of powers.Footnote 70
Whilst the Court's jurisprudence in certain areas such as maritime delimitation has arguably produced clarity, stability, and predictability in the law,Footnote 71 and it is increasingly entrusted with highly technical, scientific, and factually-dense disputes,Footnote 72 its potential role in the field of global security is also important as its docket has shown sometimes. Most recently, Ukraine submitted the third case under a sectoral anti-terrorism convention, alleging various violations of the International Convention for the Suppression of the Financing of Terrorism (Terrorist Financing Convention) by Russia.Footnote 73 There is perhaps something attractive in analyzing critically the RMI Cases through a global security lens. As observed by Judge Bennouna:
International judges had a duty to be even more vigilant in the present case, which concerns a question of crucial importance for security in the world. That is another reason for the principal judicial organ of the United Nations to undertake its role fully. Indeed, how can it shelter behind purely formalistic considerations which both legal professionals and ordinary citizens would find difficult to understand, rather than contributing, as it should do, to peace through international law, which is the raison d’être of the Court.Footnote 74
To accurately justify its title of ‘World’ Court, the argument presumably goes, the ICJ must not avoid tackling politically-charged disputes, which may have unpleasant political and global security implications, and multilateral dimensions (e.g., obligations erga omnes). Consequently, this requires adopting a flexible and pragmatic jurisdictional outlook, a rule of thumb in the Court's classical jurisprudence, which now stands in sharp contrast to the RMI Cases. In short, it could be argued that those majorities missed an opportunity to enhance the Court's legitimacy by declining jurisdiction and motivating that decision in an overly formalistic and rigid fashion. Thus, these decisions might adversely affect the perception of the Court in some quarters although, prior to the judgments, some commentators had already predicted that the mere submission of these cases would be detrimental to its legitimacy.Footnote 75 After the judgments’ delivery, other publicists underscored the consequences of the Court's choices both in terms of formalism and declining jurisdiction, suggesting that ‘[t]he increasing disconnect between the ICJ and the outside world may lead to the progressive disempowerment of international law as an emancipatory tool to bring about more justice and fairness in international affairs’.Footnote 76
It might be tempting to highlight the apparent contradiction between the majority's reasoning and jurisdictional outcome, on one hand, and the seriousness of the nuclear disarmament duties central to the cases, on the other. The Court's Nuclear Weapons Advisory Opinion might exacerbate this temptation: indeed, the ICJ emphasized the seriousness of those duties and declared that the obligation captured by Article VI of the NPT goes ‘beyond . . . a mere obligation of conduct’, equating it with an ‘obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith’.Footnote 77
However, emphasizing a perceived disconnect between the relevant substantive law – even if the alleged violations fall within the ambit of obligations erga omnes Footnote 78 – and an unfavourable jurisdictional decision might be difficult to countenance in legal terms. After all, Congo v. Rwanda confirmed that ‘the erga omnes character of a norm and the rule of consent to jurisdiction are two different things’ and that the ‘mere fact’ that a dispute involves such rights and obligations ‘would not give the Court jurisdiction’.Footnote 79
Undoubtedly, the RMI Cases had relevance for SR and stemmed from multilateral disputes over alleged violations of multilateral obligations. The Court revealed itself reluctant to take jurisdiction over these politically-loaded cases, doing so at the first available opportunity, by determining that no legal disputes existed, without addressing the respondents’ other preliminary objections.Footnote 80 The immediate casualty of these judgments is the Court's jurisprudence, given the now confirmed shift to jurisdictional formalism. More broadly, these judgments may engender important consequences for access to justice by dissuading future claimants from pursuing litigation at the ICJ (if not flat-out depriving them of that avenue, absent clear ‘awareness’ on part of the respondent(s)) for the purposes of enforcing communitarian obligations.Footnote 81 Let us recall that the International Law Commission's (ILC's) Articles on State Responsibility elect unilateral SR invocation and implementation as the default rule, a process typically occurring in the context of asymmetric and disparate diplomatic relations. This structure stems from the largely anarchical nature of the international society and essentially leaves injured states to their own devices, subject to the Articles on State Responsibility's parameters, when invoking and implementing the responsibility of wrongdoing states; consequently, auto-qualification and self-judging remain central features in that process.Footnote 82 Therefore, the invocation of SR for violations of communitarian obligations before the ICJ is extremely rare, not to mention that it must accord with the principle of consensual jurisdiction.Footnote 83
The RMI Cases may make the prospect of submitting ‘disputes’ – and that term is used loosely given those decisions – to the Court even less attractive to potential litigants, especially when their grievances relate to a network of interdependent and interrelated multilateral obligations under the global security umbrella. As noted by Judge Tomka, duties of this kind, especially those in ‘disarmament treaties or treaties prohibiting the use of particular weapons’, require, for their underlying objectives to be fulfilled, ‘interdependent performance of obligations by all parties’.Footnote 84 Such interdependent obligations, like the relevant nuclear disarmament duties in the instant cases, ‘can certainly not be brought under a bundle of bilateral relations’ but ‘are nonetheless dominated by a sort of global reciprocity in the sense that each state disarms because the others do likewise’.Footnote 85 As one jurist emphasized, ‘[t]he collective action problem in international law is not solved by prematurely turning collective obligations into bundles of bilateral obligations, in the manner of early modern attempts at multilateral treaty-making’.Footnote 86
From the standpoint of SR, there is an apparent contradiction between the Court's rhetoric and its application of law to the facts. Whilst it rightly observed that ‘notice of an intention to file a case is not required as a condition for the seisin of the Court’, and that ILC Articles 43 and 48(3) only require a ‘notice of claim’ of SR without addressing the jurisdiction of courts or admissibility of disputes,Footnote 87 the ‘objective awareness’ criterion arguably introduces a ‘pre-notification requirement’.Footnote 88 Interestingly, some ICJ judges and scholars trace back the ‘prior notice of claim’ requirement for the Court's seisin to Georgia v. Russia, casting that development in a critical light.Footnote 89
Whilst some might sympathize with Judge Xue's view that ‘surprise litigation’ should not be encouraged,Footnote 90 the applicant fulfilled the only relevant notification requirement by launching the proceedings, namely the obligation to give notice of a SR claim. But assuming that a ‘pre-notification requirement’ applied here, surely the very existence of the parties’ Article 36(2) declarations would satisfy it.Footnote 91 Indeed, the very purpose of such declarations is to signal to the international community the signatory states’ willingness to submit to the Court for the adjudication of their legal disputes, subject to any limiting statements in their declarations. Since standing and the existence of a dispute are distinct features, absent any limitation in an ‘optional clause’ declaration, a claim for erga omnes breaches would undoubtedly fit within the scope of such declaration and be justiciable before the Court.Footnote 92
Granted, the law governing interdependent nuclear disarmament duties, which might qualify as obligations erga omnes, is not completely settled since ‘the question of standing, locus standi, [is] an issue that is yet to be developed in international law’,Footnote 93 although commentators have long accepted the invocation of responsibility concerning communitarian obligations and that the Court can adjudicate claims involving their violation.Footnote 94 Given its experience with, and proximity to, nuclear testing, the applicant would presumably have attracted the designation of ‘injured State’ or ‘specially affected’ state under ILC Article 42,Footnote 95 or that of non-directly injured state under Article 48, calling out the respondents’ violations on behalf of the international community as a whole.Footnote 96
Indeed, obligations erga omnes empower all states to invoke responsibility stemming from their breach since they are owed to all, given that all players in the system have an interest in imposing timely compliance with those undertakings.Footnote 97 Whilst couched at the level of erga omnes inter partes because of the specific conventional framework at play, this type of rationale drove the reasoning regarding the obligation to extradite or prosecute under the UN Convention against Torture in Belgium v. Senegal.Footnote 98 Presumably, this thinking might have seeped into the RMI Cases, had they crossed the admissibility threshold. In this spirit, the applicant emphatically recalled that it ‘is a small island State whose only power is the power of the law’.Footnote 99 In this light, the Court's judgments might have missed the mark in advancing more robust dispute settlement avenues to enforce communitarian obligations, or in creating a more hospitable jurisdictional culture for multilateral disputes with global security implications.
However, some degree of candour is needed, despite the persuasive reasoning advanced in the dissenting opinions. The above arguments do not necessarily imply that the RMI Cases would have made it to the merits phase, had the Court found that genuine legal disputes existed. For instance, the applicant's cases might have faced obstacles on the admissibility front given the interdependent nature of the obligations at issue, as argued convincingly by Judge Tomka.Footnote 100 For him, ‘it is unrealistic to expect that a State will disarm unilaterally’, which means that:
[i]t is only with an understanding of the positions taken by other States that the Court can stand on safe ground in considering the conduct of any one State alone, which necessarily is influenced by the positions of those other States, and whether that State alone is open to achieving . . . nuclear disarmament through bona fide negotiations.Footnote 101
Since the Court would not be pronouncing on the responsibility of third states as a basis for adjudicating the respondents’ alleged wrongdoing, Judge Tomka excluded the application of the Monetary Gold principle in this context. His position was rather that the Court would not be able to rule on a single respondent's behaviour without an understanding of the views of other nations with which that respondent was obligated to negotiate in seeking nuclear disarmament.Footnote 102 Along compatible lines, Judge Xue expressed regret that the Court did not address the respondents’ other preliminary objections to the Marshall Islands’ applications, which she saw as ‘not merely defective in one procedural form’.Footnote 103 Conversely, Judge Crawford concluded that the Court could take jurisdiction, construing the Monetary Gold principle as potentially limitative of the ‘consequences that can be drawn’ from the respondent states’ conduct; however, he later emphasized that the Court might ascertain that ‘a third State could breach an obligation to negotiate by its own conduct’ on the merits.Footnote 104
Similarly, there is no guarantee that the applicant would have succeeded on its substantive claims, had it cleared the admissibility hurdle, not to mention possible jurisdictional limitations enshrined in the parties’ ‘optional clause’ declarations. Interestingly, the UK revised its Article 36(2) declaration in 2014 in anticipation of the Court's judgment, excluding from its purview future disputes which are ‘substantially the same as a dispute previously submitted to the Court by the same or another Party’.Footnote 105 In February 2017, the UK amended its declaration again, building into it two principal features of the arguments it advanced in RMI v. UK: 1. imposing a minimum 6-month prior notification of claim requirement for disputes or claims submitted against it before the Court; and 2. excluding from its acceptance of the Court's jurisdiction:
any claim or dispute that arises from or is connected with or related to nuclear disarmament and/or nuclear weapons, unless all of the other nuclear-weapon States Party to the [NPT] have also consented to the jurisdiction of the Court and are party to the proceedings in question.Footnote 106
The Court could have assessed the applicant's statements delivered at multilateral conferences whilst keeping the South West Africa case firmly in mind, which acknowledged that multilateral disputes can arise and crystallize in such settings (although they would then have to be ‘bilateralized’ to accord with ICJ jurisdictional requirements).Footnote 107 Whilst the Court recognized that multilateral exchanges can serve as evidence of a dispute, it centred its analysis on ‘whether the statements invoked by the Marshall Islands [were] sufficient to demonstrate the existence’ of ‘clearly opposite views’ between the parties.Footnote 108 It ruled in the negative. Therefore, for the applicant's claim that its ‘disputes’ be entertained by the Court under ILC's Article 48 to succeed, a more forward-looking and flexible jurisdictional approach would have been necessary. According to Judge Crawford, ‘[t]he importance of the South West Africa cases lies in the recognition that a multilateral disagreement can crystallize for adjacent purposes as a series of individual disputes coming within the Statute’.Footnote 109
IV. Conclusion: Alternate avenues to uphold interrelated obligations
These judgments have generated considerable criticism. Some might say that they constitute a sequel to South West Africa.Footnote 110 A cynical observer might also ponder whether the applicant was ill-advised by its legal team which could not make ‘the required legal arguments at the level of quality that was necessary’, with ‘a small group of NGO-based lawyers who are passionate about nuclear disarmament law [that] convinced a small, developing country to leverage its tragic history with nuclear weapons testing’ to no avail.Footnote 111 For one thing, the six cases that were not included on the Court's docket would have indubitably been ‘dead on arrival’.Footnote 112
Surely, the applicant could have engaged in ‘strategic’ bilateral exchanges to hedge its bets and particularize each individual dispute prior to its filing. Perhaps it would have been wiser to lobby an international organization to bring an advisory opinion request on the issue of nuclear disarmament.Footnote 113 But that is missing the point. What is clear from the judgments and separate opinions is that the Court further exacerbated its recent turn to jurisdictional formalism, which can be traced back to Georgia v. Russia, perhaps sending a bad message about the Court's legitimacy and unwillingness to tackle politically-charged multilateral disputes.Footnote 114 Consequently, publicists have recently chronicled the Court's reluctance and disappointing history in dealing with nuclear weapons from a legal perspective.Footnote 115 Obviously, this is not an isolated case or phenomenon: the ICJ has previously avoided dealing with certain sensitive matters through its characterization of the underlying disputes.Footnote 116 In this particular context, it was not my ambition to argue that multilateral disputes involving interrelated obligations should necessarily lead to a more flexible interpretation of jurisdictional requirements. Rather, the point is that the Court's reasoning on jurisdiction was misguided for reasons explored above but, at any rate, these cases also involved complicated questions pertaining to third parties, which were left unexplored.
As discussed in Part III, they illustrated that the Court's jurisdictional framework is ill-equipped to accommodate multilateral disputes involving interrelated obligations.Footnote 117 Nevertheless, the Court's decisions not to proceed to the merits might have been more persuasively defended on admissibility grounds. Consequently, the international community must devise creative, ‘outside-the-box’ solutions to handle these types of disputes, suggesting that the ICJ might in fact miss out on adjudicating genuine legal disputes because of its recent formalistic leanings. For its part, the UNGA might be helpful if we imagine it ‘enlisting the rhetoric of law, engaging the legal process’: indeed, as noted in the wake of the Nuclear Weapons Advisory Opinion, ‘in realpolitical terms a legal decision [by the ICJ] prohibiting the use of nuclear weapons seems, if anything, less likely to achieve their elimination than a General Assembly resolution’.Footnote 118 Surely, the resulting resolution would be of limited import given its non-binding character: it ‘will never be law in any strong sense, but might shame or mobilise or deter’.Footnote 119 Nevertheless, the UNGA has been active on nuclear disarmament and recently adopted a resolution in which it decided to ‘convene in 2017 a UN conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination’, encouraging all member states to participate in that conference.Footnote 120 And there likely stops the UNGA's potential role in nuclear disarmament: at best, it is confined to the function of law-making facilitator. But that can lead to ‘hard law’ down the line.
Whilst not ideal, one avenue to enforce relevant obligations might be through the UNSC's dispute settlement function, pursuant to Chapter VI of the UN Charter. Indeed, the UNSC has drawn from SR rationale and implemented responsibility in various situations involving global security issues.Footnote 121 Consequently, the UNSC can play a role in inducing compliance with international legal obligations in apposite circumstances. Detractors of this proposal might invoke the unavoidable ‘veto challenge’, but is should be stressed that Article 27(3) of the Charter provides that ‘in decisions under Chapter VI . . . a party to a dispute shall abstain from voting’. Granted, this would not preclude Permanent Members (or other ‘targeted’ countries) from erecting obstacles through strategic alliances, nor would it palliate the systemic shortcomings of the UNSC's structure and process. More importantly, this solution would certainly not serve as an effective or comprehensive vehicle for nuclear disarmament, but could offer a forum in which international law violations can be condemned and, in some cases, consequences imposed. On the plus side, this option obviates the need to confront the ICJ's jurisdictional limitations and brings more states – both nuclear powers and non-nuclear nations – into the fold than what is permitted by the ICJ framework.
This might be one potential solution in appropriate cases. UNSC Resolution 984, which is nowhere referenced in the judgments,Footnote 122 confirmed that organ's intention to apply SR remedial norms if confronted with an NPT party's violation of nuclear duties related to aggression. Granted, it addressed a different topic than the obligation to negotiate nuclear disarmament, but it nonetheless demonstrated the UNSC's engagement with nuclear issues whilst contemplating legal remedies. Indeed, the UNSC ‘[e]xpressed its intention to recommend appropriate procedures, in response to any request from a non-nuclear-weapon State party’ to the NPT ‘that is the victim of such an act of aggression, regarding compensation under international law from the aggressor for loss, damage or injury sustained as a result of the aggression’ (emphasis added).Footnote 123
Whilst the eventuality of a threat, or act, of nuclear aggression is an unlikely possibility, one hopes, the underlying principle still holds: there is no a priori rationale to exclude the UNSC's ‘quasi-judicial’ role in handling disputes characterized by a mix of legal, political, and global security dimensions, against a multilateral backdrop. The RMI Cases are as good as any: the UNSC's role could encompass disputes over alleged violations of the duty to negotiate towards nuclear disarmament. Undoubtedly, this option might only lead to partial remedies, such as declarations of wrongdoing without much follow-through, and turn out to be a less-than-comprehensive compliance monitoring mechanism. However, it is nonetheless one available option, to be used in conjunction with other means of diplomatic, political and legal pressure in pursuing global nuclear disarmament. Moreover, it can become a powerful platform to issue messages of deterrence, shame wrongdoing states, and use international law's evocative language to induce behavioural change in those states. Ultimately, this alternate forum – albeit imperfect – might be an attractive avenue to compensate for the ICJ's formalistic inclinations, move the nuclear disarmament agenda forward, and hold wrongdoing states to account even if only by way of declaratory relief.
