IDS Workgroup 1 - Jurisdiction and Admissibility

Question 1

What are conditions for existence of a dispute according to the ICJ ? (3)

See “Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament” (Marshall Islands v United Kingdom), 2016

Answer 1

1/ disagreement/conflict between parties

2/ timing : dispute must exist the day upon which application is filed

3/ awareness : respondent must have had an opportunity to respond before initiation of proceedings

Question 2

Holding of ICJ in Preliminary Objections Judgment opposing Marshall Islands vs UK (2016) ?

Answer 2

1/ first preliminary objection UK is upheld, i.e. no legal dispute existed at the time the Marshall Islands filed application

=> ICJ does not have jurisdiction

=> ICJ cannot proceed to the merits of the case

Question 3

How did the ICJ categorise the issue related to the absence of existing legal dispute at the time of filing of an application in Marshall Islands vs UK (2016) ?

Answer 3

An issue of jurisdiction

Question 4

Views in favor/against argument that ICJ took an overly formalistic approach to requirement of existence of a legal dispute at time of filing application in Marshall Islands vs UK (2016) ? (2)

Answer 4

1/ focus on timing + awareness does not allow for consideration a dispute actually came into existence btwn 2 disputing parties after the application was filed

2/ maybe taking into account objective criteria, such as the evidence presented before the ICJ, would be a better option

Question 5

Why does the ICJ sometimes rule on one preliminary objection/argument only ?

Answer 5

Judicial economy

Question 6

Final finding of ITLOS Annex VII arbitral tribunal in “Chagos Marine Protected Area Arbitration” (2015) ?

Answer 6

Establishment of MPA by UK disregards MAU rights, which renders the MPA unlawful

Question 7

What does the jurisdictional part of the “Chagos Marine Protected Area Arbitration” (2015) focus on ?

Answer 7

Whether the 4 submissions of MAU concern the “interpretation or application” of UNCLOS under Article 288

=> thus, question on whether the dispute falls within the subject matter jurisdiction of the arbitral tribunal

Question 8

Considerations of Annex VII arbitral tribunal on MAU 1st submission in “Chagos Marine Protected Area Arbitration” (2015) ?

Answer 8

1/ to determine whether the dispute falls within the subject matter jurisdiction of the tribunal, necessary to look at the core of the dispute

=> tribunal found the dispute should be viewed as an issue of sovereignty rather than over “coastal State” status

2/ could the tribunal however rule over sovereignty issues that are ancillary/secondary to a dispute that falls within its subject-matter jurisdiction ?

=> tribunal does not exclude such a possibility, but dispute over sovereignty would have to be minor

HELD : it has no jurisdiction to address MAU 1st submission

Question 9

Considerations of Annex VII arbitral tribunal on MAU 4th submission in “Chagos Marine Protected Area Arbitration” (2015), according to which the MPA is incompatible with UK’s obligations under UNCLOS & 1995 Fish Stocks Agreement?

Answer 9

1/ legal characterisation of the MPA is required to determine whether it falls within the subject matter jurisdiction of the tribunal

2/ the scope of the MPA does not only apply to fishing rights in the EEZ (for which a limitation on jurisdiction exists) but extends to the protection and preservation of the marine environment

3/ thus, the issue falls within the subject-matter jurisdiction of the tribunal

HELD : tribunal has jurisdiction with regards to 4th submission of MAU

Question 10

What is interesting about “Chagos Marine Protected Area Arbitration” (2015) ?

Answer 10

Creative way of ruling : Tribunal searches for MAU rights beyond UNCLOS, but only to make legal findings based on UNCLOS provisions.