The World Court's Jurisdictional Formalism and Its Lost Market Share: The Marshall Islands Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

Abstract

On 5 October 2016, the International Court of Justice rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that State alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the NPT Treaty and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v Russia and confirmed in both Belgium v Senegal and its Alleged Violations judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court’s judgments within the context of the law of State responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court’s formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The paper then turns to the broader implications of these decisions for State responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, State responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the paper highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

Keywords: International Court of Justice, jurisdiction, existence of a dispute, State responsibility, obligations erga omnes, Security Council