From Mavromatis in Palestine to Marshall Islands: A Brief Study on the Evolution of the Concept of Dispute in the Jurisprudence of the ICJ

in the three judgments rendered by the ICJ on 5 October 2016 in cases between the Marshall Islands and the nine States possessing nuclear weapons, the ICJ arguing that " a dispute exists when it is demonstrated, on the basis of the evidence, that the respondent was aware, or could not have been unaware, that its views were “positively opposed” by the applicant", concluded that it cannot be said, based on the evidences presented to him, that the United Kingdom was aware, or could not have been unaware, that the Marshall Islands was making an allegation that the it was in breach of its obligations. Therefore the Court concluded that the first preliminary objection made by the United Kingdom must be upheld and, consequently, the Court does not have jurisdiction under Article 36, paragraph 2, of its Statute. This is the first time that the Court has expressly mentioned the "criterion of awareness" and examines in its light the defendant's objection. The question is whether this approach in line with the case-law of the Court? The judges of Minority respond negatively, and consider it a dangerous innovation. We cannot share this point of view since a similar approach has been adopted by the Court in these recent decisions. However, it is not sure that this approach would be consistent with the principal of the sound administration of Justice.