The Jurisdictional Requirement of the Existence of a Legal Dispute

Extract

[...] Indeed, if the defender (in this specific case, the UK) adopted a behavior where it shall not take into account the diplomatic initiatives launched by the applicant, the ICJ would not satisfy the applicant's claim at the expense of the latter. Although this interpretation of the procedural dimension of the new criteria of the existence of the legal dispute, it is not a stable and viable criterium, as a 2016 case did not establish a clear provision in that sense. [...]

[...] These objective grounds are to be found in the "minimum level of communication between the parties" and "must relate to issues arising out of the relationship [of the parties], and not academic or hypothetical in nature". This interpretation of the legal dispute was later on confirmed by the International Centre for Settlement of Investment Disputes in 2004. The reformulation of the legal dispute by the ICJ In 2014, the International Court of Justice formulated a new approach to the existence of a legal dispute. [...]

[...] The Jurisdictional Requirement of the Existence of a Legal Dispute "The Court, as a court of law, is called upon to resolve existing disputes between states. Thus, the existence of the dispute is the primary condition for the Court to exercise its judicial function". In its 1974 judgment, the International Court of Justice (ICJ) resolved solely to admit a case before its framework on the very basis of the genuine existence of a dispute. This provision is not unique to the ICJ: the article 25(1) of the International Centre for Settlement of Investment Disputes Convention states that "the jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment". [...]

[...] The first criteria appears to be purely rational, but in the context where there is no diplomatic or bilateral relationship between the two countries that are engaged in a legal dispute, it is deeply problematic. It was the case in this specific judgment, as the Marshall Islands did not have a specific bilateral relationship with the UK, and although "the applicant made a number of public statements . it did not invoke the specific, individual responsibility of each nuclear state under international law". [...]

[...] However, this new interpretation of the ICJ of the existence of a legal dispute is problematic on several levels. The limits of the international courts of justice in the interpretation of the existence of a legal dispute The limits of the ICJ's interpretation of the existence of a legal dispute as understood by its 2014 judgment Marshall Islands v. United Kingdom are certainly highlighted in the two criteria proposed by the Court. At first, the fact that the respondent must be aware of the existence of the dispute and, secondly, the criteria that the dispute must exist at the time of the submission of the application The criteria of the respondent aware of the existence of the legal dispute "When applied to future cases, the criteria developed in these decisions render the proof of the existence of a dispute unnecessary difficult and uncertain when there were no prior diplomatic exchanges between the parties", according to B. [...]