Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance?
25 Pages Posted: 10 Sep 2018
Date Written: September 8, 2018
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 justified, doctrinally and normatively, 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 – and one 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.
Keywords: International Court of Justice, Justiciability, Jurisdiction, Preliminary Objections, Nuclear Weapons, Existence of a Dispute, Marshall Islands, Backlash, Enforcement
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