Forget About Mavrommatis and Judicial Economy: The Alleged Absence of a Dispute in the Cases Concerning the Obligations to Negotiate the Cessation of the Nuclear Arms Race and Nuclear Disarmament

Abstract

In its October 2016 Judgments, the Court found that there was no dispute between the Marshall Islands and, respectively, the UK, India and Pakistan concerning their obligation to negotiate nuclear disarmament. While the Court acknowledged that no ‘formal protest’ was required from the applicant, it significantly heightened the threshold for establishing the existence of a dispute when assessing whether the respondents were ‘aware’ of its allegations. As put by Judge Robinson, the addition of ‘awareness’ into the dispute requirements, coupled with the stringent examination of the evidence, was an attempt to ‘debunk Mavrommatis’. Moreover, the Court omitted to mention that the alleged controversies crystallized during the pleadings and that, consequently, the applicant could bring fresh proceedings in which this condition would be fulfilled. Having confined its analysis to the date of seisin, the Court undermined judicial economy by inviting the needless proliferation of applications, again in disregard of Mavrommatis.