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276
DISSENTING OPINION OF JUDGE AD HOC BEDJAOUI
[Translation]
Traditionally less formalistic jurisprudence — Reversal of jurisprudence —
Excessive formalism — Lack of flexibility — Loss of clarity —
Notification/“awareness” — Date of the existence of a dispute — Procedural
defects — Silence of the Respondent — Exchanges before the Court — Sui generis
nature of nuclear disputes — Obligation to negotiate and to achieve nuclear
disarmament — Objection not of an exclusively preliminary character —

D ISSENTING OPINION OF JUDGE C RAWFORD

Jurisdiction of the Court under Article 36 (2) of Statute  Existence of a dispute 
Awareness or objective awareness not a legal requirement  No prior negotiations or notice
necessary before seising the Court  Dispute in principle to exist at the time of Application 

Flexible approach  Finding of dispute may be based on post-Application conduct or evidence 
Mavrommatis principle  Existence of multilateral dispute  Existence of dispute between
Marshall Islands and India.

D ISSENTING OPINION OF JUDGE R OBINSON

I disagree with the Majority’s conclusion that there is no dispute in this case  Role of the
Court as envisaged by the United Nations Charter  Linear development of the Court’s case law

S EPARATE OPINION OF JUDGE B HANDARI

Concur with the conclusions of the majority  Existence of a dispute is central to the
exercise of the Court’s jurisdiction  On the basis of documents and pleadings of the Parties, no
dispute existed  ICJ lacks jurisdiction  Greater emphasis ought to have been given that no

S EPARATE OPINION OF J UDGE SEBUTINDE

Object and purpose of the United Nations Charter  Maintenance of international peace

and security  Role of the Court in the peaceful settlement of disputes  The Court’s compulsory
jurisdiction derives from the optional clause declarations pursuant to Article 36, paragraph 2, of
the Court’s Statute and not from the existence of a dispute  The existence of a dispute is merely
the precondition for the exercise of that jurisdiction  Article 38 of the Statute of the Court  The

D ECLARATION OF JUDGE G AJA

In the three Judgments concerning the cases filed by the Republic of the Marshall Islands the
Court finds for the first time that it cannot entertain a case because there was no dispute between
the Parties on the date when the Application was filed. Having reached this conclusion, the Court
decides that it does not need to examine the other objections raised by the respondent States. This

DECLARATION OF J UDGE DONOGHUE

1. In contentious cases, the Court settles disputes between States (Article 36, paragraph 2,
and Article 38, paragraph 1, of the Statute of the Court). When the Court finds the absence of a
dispute in respect of a claim contained in an application, the consequence is dismissal of the claim.
However, the Statute of the Court does not define the term “dispute”. Instead, the meaning of that

D ECLARATION OF JUDGE X UE

1. I have voted in favour of the Judgment because I agree with the decision of the Court to
dismiss the case for lack of jurisdiction. Notwithstanding my vote, I wish to make two points on
the Judgment.

2. My first point relates to the approach taken by the Court. In the Judgment, the Court finds

D ISSENTING OPINION OF JUDGE C ANÇADO T RINDADE

Table of Contents

Paragraphs

I. Prolegomena................................................................................................................................1-4

II. The Existence of a Dispute before the Hague Court ..................................................................... 5

D ISSENTING OPINION OF JUDGE B ENNOUNA

Exercise in pure formalism  Introduction of a subjective criterion in determining the
existence of the dispute  Sound administration of justice  Realism and flexibility of the case
law of the Court  The existence of the dispute, a question to be objectively decided.