In depth case notes and explanations in preparation for weekly colloquia on several aspects of international dispute settlement, including jurisdiction, admissibility, evidence, incidental proceedings and compliance.
IDS - Jurisdiction, Admissibility, Evidence and Facts, Incidental Procedures and Compliance
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International Dispute Settlement
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International Dispute Settlement
Week 2: Jurisdiction and Admissibility
Jurisdiction concerned the scope and power to adjudicate.
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (Marshall Islands v United Kingdom), Preliminary Objections, Judgment, 5 October
2016.
Facts : In the creation of the UN, and since then the issue of disarmament had been crucial, and call for
international disarmament efforts. The UN by a resolution 21 in 1947 placed Marshalls Islands under the
trusteeship system of the UN, making this island a location for repeated nuclear weapons testing. The UK
and the Marshalls islands are a party to the NPT (1968) which seek to limit the proliferation of nuclear
weapons and provide certain rights and obligations, need to “pursue negotiations in good faith on effective
measures”. This was also reaffirmed in the Advisory opinion, Legality of the Threat or Use of Nuclear
Weapons, 1996.
Procedure :
In 2014, the Marshall Islands filed an application alleging a failure to fulfil obligations concerning cessation
of nuclear arms race and nuclear disarmament against 8 states and the UK. Art 6 of the NPT: obligation to
pursue negotiate regarding the disarmament.
Marshall Islands was claiming that UK breached the treaty. UK was a NW state, and had not made any
moves towards negotiating towards disarmament.
The other 8 states did not accept the jurisdiction of the court. In April 2014, the Marshall filed application
against 9 states. This judgement is similar.
Marshall Islands were able to pursue case against UK because theses 3 countries had optional clause
jurisdiction. Marshall Islands was basing court’s jurisdiction on Art. 36(2).
These remaining 6 countries did not have optional clause and no jurisdiction under NPT. Forum
prorogatum would have been the last possibility. But not the case.
Preliminary Objection – procedural step at the beginning – challenging court’s jurisdiction or
admissibility, objecting to case going forward
UK- Respondent claim:
The UK raised 5 preliminary objections to the jurisdiction of the Court or the admissibility of the application.
1st : Para 23 - the Applicant has failed to show that they was, at the time of the filing, a justiciable dispute
btw the parties (FYI India and Pakistan argued this as well)
2nd and 3rd : Reservations to the article 23 paragraph 2 of the Statutes preclude the Courts jurisdiction.
4th : absence of the proceedings of third parties whose essential interests are engaged.
5th : a judgment on the merit would not have practical csq
First preliminary objection: absence of a dispute
UK claims that a principle of CIL require to give notice of the claim when a State intend to invoke another
states responsibility: art 43 of the ILC, and prior notification of the claim = precondition of the existence of a
dispute. => Not satisfied
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,The UK argued that the two statement 2013 and 2014 on which the Marshall Islands relies, do not provide
any evidence that a dispute existed btw the parties at the date that the application was filed. First
statement : 26 sept 2013, High level Meeting of the General Assembly on Nuclear Disarmament minister of
Marshall Islands said “intensify efforts towards disarmament” = did not specifically mention the United
Kingdom.
The second statement was made at a large Conference on Humanitarian Impact of Nuclear Weapons in
Nayarit - “states possessing nuclear weapons are failing to fulfil their legal obligations according”. = UK was
not present, and MI did not bring this statement to its attention.
Dispute as condition of jurisdiction – para 36 of Judgement – references requirements in Art. 38 of Statute
and Art. 36(2). Then elaborates. ‘Dispute’ requires:
- Awareness
- Opposite views
- Disagreement on point of law or fact
Marshall Islands applicant claim:
MI claim that there is no general principle imposing on a State to notify the other state of its intention to
seize a court, and argued that Art 43 of the ILC is irrelevant.
MI rely on ruling from the Court (Belgium v Senegal) to show that the court has consistently denied the
existence of a general requirement of prior notice (PH 32). For the applicant, the evidence of a dispute is
illustrated by the opposing view of the parties w/ respect to UK compliance w/ NPT.
(Court agreed that Art. 43 is irrelevant, don’t need prior notice unless explicitly required)
The applicant said that it gives notice of its claims by means of the application.
Issue: The issue for the Court in this case was to determine whether or not a legal dispute existed between
UK and the Marshall Islands, thus giving jurisdiction to the Court.
Ruling:
The Court begins by reminding that its function is to judge in accordance with IL (article 38 of the Statute).
Then the Court reminds the definition of a dispute according to its case law. (PH37): “ a disagreement on a
point of law or fact, a conflict of legal views or of interests”. For the Court, the existence of a dispute is a
matter of substance and notice of intention to file a case is not a required condition.
The Court referred to article 36 and article 36(2) of the ICJ statute. Interesting.
No need to have prior negotiations to determine the dispute.
In order to decide whether a dispute exists, the Court proceeds to an examination of the facts, and any
particular statements or documents exchanged btw the parties and in multilateral settings. The Courts also
looks at the conduct of the parties.
All these evidences must illustrate that the parties “hold clearly opposite views”. The Court reminds that
the Court statute in Article 38 ph 1, referred to the disputes existing at the time of their submission.
The court also emphasize that there is a timing issue, the date is the date when the case was filed. The
rationale allows the would-be respondent to answer. Respondent must have opportunity to react before
proceedings begin.
The applicant needs to demonstrate the facts underlying its case that a dispute exists.
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,Ph 46: The Marshall Islands demonstrate that there is a dispute with 4 points, and the Court rejects these 4
points one by one.
1. It refers to its own statement as formulated in multilateral for a.
The Court answers that the Statement made at High Level Meeting in 2013 cannot be understood as an
allegation that the UK was in breach of any of its legal obligations because it does not mention the
obligation to negotiate nor that the states are failing but only suggest that they makes “efforts”. The 2013
Statement does not meet the requirement of the referring to the subject matter of a claim.
The Statement made by the Marshall Islands at Nayarit Conference in 2014 is insufficient to bring into
existence a dispute between UK and the MI because UK was not present at the Conference, and the
statement does not specify the conduct of UK nor did it call for a specific reaction.
“It cannot be said that the UK was aware or could not have been unaware that the MI was making
an allegation that the UK was in breach of its obligation”.
2. MI argues that the very filing of the application as well as the positions expressed by the parties
show the existence of a dispute.
The Court use its case load to show that this view is not supported. The filing of the application cannot
create a disputes de novo one that does not already exist.
3. MI relies on UK voting records on nuclear disarmament in multilateral fora.
Theses resolutions contain a large number of different propositions, state’s vote cannot be taken as
indicative of the position of that states
The MI invokes the UK conduct in declining to co-operate with certain diplomatic initiatives, in failing to
disarmament : Court said this was insufficient to show awareness. UK could not have been aware.
Held :
The Court concludes that the preliminary must be upheld. The Court does not have jurisdiction under
article 36 ph 2 of the Statute based on the absence of dispute between the parties
The court states that it is a jurisdiction issue. Issue of the existence.
The president had to cast the deciding vote. Both cases concerned public interests.
The Court is taking a particularly formal approach because it is a very highly political issue to deal with,
nuclear weapons.
After this case UK, February 2017 made two addition to the reservations:
Requirement of notification
Exclude nuclear dispute and nuclear disarmament
In addition, before the UK excluded that a claim was filed again on the same topic.
Actually the requirement of the dispute, goes to the jurisdiction functions because the Court is supposed to
exercise its jurisdiction only if there is a dispute, and not to allow the respondent to respond.
This is a jurisdictional issue – Art. 45
Because they could adjudicate (existence of adjudicatory power is there) but the scope of the adjudicatory
power is limited. They cannot adjudicate at all, they didn’t choose not to because it wasn’t appropriate.
Arguments can be made that it is admissibility issue, but on balance, it appears to be stronger for
jurisdiction.
Could, in theory, now that this process has occurred and the disagreements on the NPT have been fully
aired, could the Marshall Islands bring another case against the UK? Would the court have jurisdiction? In
theory, yes. However, lol the UK pretty much covered all of its basis.
Judicial economy principle – if a case can be settled on the basis of 1 prelim. Object, don’t waste time and
efforts on other ones. Should they have? On the other hand, if they had filed it again and the UK hadn’t
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, made these reservations to their optional clause declarations, then they still would have had to consider
jurisdiction of the court under the remaining 4 preliminary objections.
Formalistic approach – avoid undesirable position of having to rule on legality of NWs – 8 judges that voted
in favour of UK came from NWS or states that benefited from NW. Becker article, however, explains why
they voted the way they did, not the way it looks! READ
Public interest litigation – Marshall Islands pursues this because although it is specifically affected and
injured by NW testing, it wanted to bring a claim against the UK based on erga omnes rights for the good of
all other states. Court has shown its unease with dealing with cases like this.
World Duty Free Company v Republic of Kenya, ICSID Case No. ARB/00/7, 4 October 2006, paras
1-11, 105-192.
Well-known case in arbitration circles
Unusual because the allegation of corruption was proven which is rare. Proven in a strikingly clear manner.
Outline:
The Tribunal ruled that the 1989 Agreement was procured by a bribe, without which no contract would
have been concluded between the parties. WDF retained the free choice whether or not to invest in Kenya
and whether or not to conclude the Agreement, but WDF chose, freely, to pay the bribe. The bribe is
contrary to international public policy of most, if not all, States and also to public policy under English and
Kenyan law.
Thus, the Tribunal dismissed the claims on the ground that contracts obtained by corruption cannot be
upheld
Facts:
The 27 April 1989, the Government of Kenya, concluded an argument with WDF for the construction,
maintenance and operation of duty free complexes at Nairobi and Mombassa Airports. Then, a lease was
concluded in 1995 between the Kenyan Airports authority on behalf of the gvt of Kenya, and WDF.
The 1989 agreement was concluded after WDF paid $2millions to the President of Kenya.
Mr Ali met with Saijad and said that they needed a suitcase of $2 millions. Saijad arranged a meeting. The
briefcase was left in the house. The money was replace with corn. Saijad is the middle man or the
intermediary.
WDF wants restitution or compensation.
Procedure:
In 2000, WDF (Mr Ali, from Dubai) request an arbitration against the Republic of Kenya, alleging that Kenya
breached their 1989 agreement in several respects, illegally expropriated its properties and destroyed its
rights under the agreement.
The parties agreed to the jurisdiction of the tribunal and the composition. = Arbitration clause in the
agreement, concession contract signed by WDF and the gvt of Kenya.
Three method of consent:
Domestic legislation
Contract – Art. 9 of agreement is basis of ICSID’s jurisdiction
BIT
The Republic of Kenya – Respondent claim:
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