Professor Alexander Orakhelashvili
[For an earlier post regarding the Monetary Gold aspect of this case, see here.]
Germany argues before the International Court that “No dispute had or could have crystallised between Nicaragua and Germany at the date of Nicaragua’s Application. Germany had not yet responded to Nicaragua’s claims, and it had not been allowed reasonable time to do so” (Written preliminary objections, para. 25).
As the International Court has confirmed across its jurisprudence, the existence of an international dispute is a matter not of form or procedure, but one of substance (Georgia v Russia, para. 30; Ukraine v Russia, para. 45; Gambia v Myanmar, para. 64). If we focus on substance rather than on form or procedure, a dispute between two States exists when, on the facts involved in the relevant case, one party’s legal claim or view is positively opposed to that of another party; and that not discretely depend on what method of communication was used, or how long the communication lasted, or how the claims were detailed, in the relevant situation.
The only case in which the International Court held that a dispute did not exist, Marshall Islands, turned on the respondent State’s lack of awareness of the applicant State’s legal claim (Mauritius v UK, paras 49-50), not on the form or process through which the relevant claim was articulated or how detailed it was. The key factor was that Marshall Islands had not addressed anything specifically to the UK, nor otherwise specified anything specifically related to the UK’s conduct. It was owing to this factor that the Court concluded that “it cannot be said that the United Kingdom was aware, or could not have been unaware, that the Marshall Islands was making an allegation that the United Kingdom was in breach of its obligations” (para. 52).
However, in the present case Germany alludes to some further indicators or requirements relating to both the applicant State’s and the respondent State’s conduct and position, as though those indicators or requirements formed an inherent part of the core concept of dispute.
Means and nature of Nicaragua’s communication
To begin with, Germany alludes to the Nicaraguan diplomats’ use of electronic communication tools, namely Yahoo email accounts (CR 2026/30, para. 27). However, that method is not inherently unsuitable for transmitting information from a State to a State, nor does it contravene any international legal requirements. In Norstar, Panama’s agent was someone who was not even part of the Government of Panama, and moreover a person who Italy argued “was not vested with powers to negotiate with Italy over the facts of the present case”, and that was not a problem.
In addition, Germany draws the Court’s attention to the fact that Nicaragua sent its Note Verbale to “the generic public information email address of the Permanent Mission of Germany to the United Nations – not an address usually employed for official communications. As a result, the note verbale was not picked up until 13 February 2024” (Written preliminary objections, para. 23, my emphasis). To begin with, it is unclear what the relevance of the “picking up” element is here. Germany in essence admits that either the relevant email address was not monitored for good 12 days and that hence no one saw Nicaragua’s Note, or that it was possibly monitored but the relevant person did not pay attention to the communication or did not find it to be important; and tertium non datur. Therefore, regardless of what exactly happened on the ground, the fact that nobody would check that email account, or act upon the available information, for about a fortnight should not operate to Nicaragua’s disadvantage. Nicaragua was not supposed to independently figure out how Germany’s electronic communication addresses work or are attended or monitored. Still, Nicaragua went out of its way and “resent the email with the Note Verbale on 13 February 2024” (CR 2026/32, para. 6). While the first email was not discovered for about a fortnight, the second one was discovered within a day which would, from the sender’s point of view, be odd to say the least. There is no reason why Nicaragua should be penalised for any of this.
Moreover, the attention of Germany to the underlying dispute and its submission to the International Court was drawn in public through Nicaragua’s Press Release of 1 February 2024. As of that moment or very soon afterwards, Germany was effectively put on notice as to what was happening and what was to be expected. Thereupon, Germany was to exercise a greater vigilance and either instantly and proactively begin verifying all its incoming information channels (postal or electronic, including clutter folders) and/or state in public as soon as possible that Nicaragua’s communication was not received. As far as facts known in the public go, Germany did neither.
As to how Germany proceeded in the period between 2 and 13 February, a narrative is presented by the respondent in a style reminiscent of a crime or espionage novel, to the effect that the Note was “as yet undiscovered. Nicaragua is fully aware that this is the case, as the cover email conveying the Note Verbale in an attachment includes a request for confirmation of receipt of both the email and its attachments” and that as a consequence, States named in the press release “are operating in the dark, as they do not have the Notes Verbales” (CR 2026/32, paras 3-4). That is both factually inaccurate and confusing. The four States named in the press release, including Germany, did receive the Note Verbale given that it was in their inboxes, even if their relevant officials had not seen that Note yet. No conclusive inference as to Nicaragua’s awareness could be drawn from the fact that the acknowledgment was requested and not sent, because all that fact did was to increase uncertainty from the sender’s point of view; and that is why the reminder was sent. Germany still insists that, after 14 February, Nicaragua still had to additionally reach out to the Germany to pursue points mentioned in the Note Verbale or the Press Release (Preliminary Objections, para. 46). This only shows how far imagination could go to the effect that the applicant has to keep chasing the respondent and the respondent could still complain that they did not have enough time to respond.
In short, the fact of Nicaragua’s publicising the whole matter through the Press Release has two consequences: it removes any doubt about the authorship of legal claims against Germany; and it also removes doubts as to Germany’s awareness of what Nicaragua was doing or intending. And moreover, as we also shall see below, at no point between 1 February and 1 March 2024 did Germany deny the fact that they had received the Note Verbale.
Germany contends that only on 13 February was it “in a position to compare the contents of the Press Release and the Note Verbale” (CR 2026/32, para. 6, my emphasis). Germany’s spokesperson has clearly acknowledged, during the press conference episode that was substantially longer and more confrontational than it appears to be from how it is described in Germany’s pleadings (the press conference record available here in the original language), that Nicaragua in its Press Release of 1 February 2024 did refer to Germany’s role in specific violations of international law. For, the Press Release that Germany was aware of is clear in its references to genocide, humanitarian law, occupation, collective punishment of civilians, self-determination and to the legal framework – conventional or customary law – that regulates all that. Germany still, and counterfactually, claims that “at no point prior to its Application did Nicaragua claim that Germany was violating the right to self-determination” and that “the press release made barely any mention of Nicaragua’s international humanitarian law claims (Preliminary Objections, paras 53, 64). However, one only needs to check the text of the press release to see that it refers to Germany’s conduct with regard to both those areas of law.
Germany is emphatic that at the government press conference on 7 February 2024 it “Germany reserved its position as to the note verbale, which it had yet to receive” (Written preliminary objections, para. 24). As explained above, and to all intents and purposes, Germany had received the Note Verbale on the day it was sent and, owing to the nature of electronic communication, it could not be otherwise. Moreover, between 2 and 8 February Germany’s awareness of Nicaragua’s intentions and reasons for bringing the case to the International Court was made public through German, English-speaking and Spanish-speaking press (see for the list Nicaragua’s written observations, p.44, footnote 229).
Germany disputes the nature and relevance of Nicaragua’s communication and suggests that “there were no material exchanges between Nicaragua and Germany at all in this case” and that “the two documents [i.e., Note Verbale and Press Release] are the only allegations that Nicaragua can refer to ⎯ and they are both far removed from constituting “exchanges”” (CR 2026/30, para. 10). Germany also says that “the length of exchanges between the parties” should be relevant (CR 2026/32, paras 9-10). Germany suggests that in other cases such as Ukraine v Russia or Gambia v Myanmar exchanges between the applicant and respondent covered a longer period and involved a greater detail; and that in Georgia v Russia eight years of exchanges were covered (id., para. 10) though, as we also shall see below, those eight years did not lead to the crystallisation of the dispute, and instead a much shorter period had that effect.
Overall, while the duration factor could be an empirical illustration that a dispute exists, it is not a normative or categorical precondition for that. Also, there is no requirement that the applicant State should necessarily rely on some reports or pre-existing finding or determinations within international organisations (like those involved in Gambia v Myanmar) because, otherwise, no dispute would crystallise without the underlying matters being first discussed, or findings and determinations about them produced, within the fora such as the UN. Quite simply, the situation that existed in one case cannot be a template to be used in other cases. Instead, facts of every case must be assessed on their own to show whether a contradiction of legal views and opinions has materialised in that relevant case. There is no reason why awareness of the respondent State could not materialise without the use of specific fora of discussion or without some additional detail, repetition or intensity of communication; provided that the nature and content of underlying claims is made clear.
Germany claims that “statements made at a press conference cannot be regarded as “statements or documents exchanged between the parties” or “exchanges made in multilateral settings”” (CR 2026/30, para. 33). Here not only Germany tries to prioritise form and procedure over the substance, but it also overlooks the fact that in some cases, such as Georgia v Russia (discussed in more detail below), statements to press and media were relied upon by the Court to confirm that the dispute between the applicant and the respondent State had crystallised. And what the Court has always done across its jurisprudence on this matter is to evaluate every communication and its factual context on its own and for the purposes of the case in question. In that spirit, the Court does not usually draw any general inference or generalised presumption to the effect that while X could amount to an “exchange”, Y or Z would be inherently unsuitable for that purpose. And this is precisely what Germany invites the Court to do, which is at odds with the Court’s past practice. Other cases relied in Germany’s pleadings are merely empirical illustration of how the dispute had crystallised in those other cases; they do not allow for any inference to be drawn that the same time length or detailed or intricate material content is required for the existence of a dispute across all or even across most cases.
In Georgia v Russia, the exchanges between the two States that the Court held led to the emergence or crystallisation of a dispute between them were not even direct State-to-State exchanges. According to paragraphs 111-112 of the Judgment, the Court relied on press statements or interviews that did not include the detail of legal aspects or framework of the contentions voiced or, in most cases, did not even amount to a direct State-to-State communication or confrontation. The relevant statements were made over two or three days, from 9 to 11 August 2008, practically no direct exchange between the parties was involved, and Georgia’s application was submitted to the Court on 12 August. And yet the Court held that this was enough to generate a dispute. In this present case, Nicaragua has been far more patient with Germany. Georgia submitted its application one day after Russia’s latest rejoinder that the Judgment refers to, and Germany still says it ought to have had more time to consider its response to Nicaragua’s claims. Overall, it is an implausible suggestion that the existence of a dispute should turn on the length of time because that would make the Court operate on the false premise that a particular time or duration requirement is prescribed under international law or otherwise has some inherent value.
Germany also insists on the specificity requirement and suggests that “the more unspecified or unclear the allegations are, the longer the State to which these are addressed may need to consider them, in order to try and understand what they may be about” (CR 2026/30, para. 21). However, Court’s jurisprudence confirms that the detail is not a key consideration. In Georgia v Russia the Court has said, following its past jurisprudence, that “it is not necessary that a State must expressly refer to a specific treaty in its exchanges with the other State to enable it later to invoke that instrument before the Court”. Instead, “the exchanges must refer to the subject-matter of the treaty with sufficient clarity to enable the State against which a claim is made to identify that there is, or may be, a dispute with regard to that subject-matter” (para. 30, my emphasis). And then in Marshall Islands the Court has added that “the same reasoning applies to a dispute over any obligation regardless of the underlying jurisdictional basis alleged, since the Court made clear that it was dealing with the requirements of a dispute in general” (para. 29, and more of that below). Georgia’s points regarding ethnic cleansing were not expressly linked to any provision of CERD and that was not a problem (and to the same effect with regard to genocide allegations see Gambia v Myanmar, para. 72), yet here Germany asks the Court to hold that Nicaragua ought to have detailed everything about international humanitarian law treaties and other treaties or rules of customary law.
Press Conference of 7 February and Germany’s response
As we saw earlier, Germany is emphatic that at the government press conference on 7 February 2024 it “Germany reserved its position as to the note verbale, which it had yet to receive” (Written preliminary objections, para. 24). But what consequences does a State’s reserving its position produce and when can we say that the relevant reaction or situation is about reserving and not rejecting?
To begin with, none of the statements of the Georgia v Russia Judgment, which the Court choses to rely on across its paragraphs 109 to 112 with regard to the 2008 episode from which it inferred the existence of a dispute between the two parties, include any express rejection by Russia of Georgia’s claims; instead, those statements involve the parties’ mutual accusation of ethnic cleansing, Russia’s acknowledgment of Georgia’s accusations (Lavrov statement at para. 112 of the Judgment), Russia’s statement of its alternative intentions in the conflict (here, at p.17), and each party spoke of different set of facts and events and accused the other party of ethnic cleansing directed against two separate ethnic groups. There is no single instance alluded to in the material parts of the Judgment that shows that Russia has expressly opposed or rejected Georgia’s claim about Russia’s involvement in ethnic cleansing. That did not happen even in the relevant Security Council meeting where both parties’ representatives were present. Again, throughout the process of those exchanges, each party referred to a specific event and accused the other party of ethnic cleansing. Hence, the Court’s observation in Georgia v Russia that Georgia’s claims “were rejected by the Russian Federation” (para. 113) refers not to the actual, express or empirical rejection but to the fact that it was obvious in that process that Russia either has rejected or would reject Georgia’s claims and that nothing else could have been expected from Russia at that stage. The Judgment does not cite anything else to strengthen the opposite impression.
Let us focus now on what happened in the present case. Germany contends that Nicaragua “is asking [the Court] to find the needed positive opposition to a claim in a few words to a journalist” (CR 2026/32, para. 16). The expression “few words” significantly downplays what happened at the press conference as between a journalist and a public official speaking in the name of the German government. As a matter of law, “the conclusion that the parties hold clearly opposite views concerning the performance or non-performance of legal obligations does not require that the respondent must expressly oppose the claims of the applicant” Gambia v Myanmar, para. 71). So even if, for the sake of argument, it was correct that the repeated use of “reject” is not a positive opposition to another State’s claim, that per se would not be enough to lead to the conclusion that a dispute has not crystallised. But in the present case, the above “few words” included rejection twice and did not include reserving.
The spokesperson was clear that “We reject the contents of the press release” (Nicaragua’s written observations, para. 99). Germany however suggests that this was “a clear reservation of Germany’s position with respect to the Note Verbale and the reaction to the steps taken by Nicaragua” (CR 2026/30, para. 31). But this is simply not borne out by facts, and rejection and reserving the position could never be the same thing. Rejection was reiterated repeatedly during that press conference (the first expression used was “weisen wir natürlich entsprechende Inhalte der Pressemitteilung zurück” and related to the “relevant contents” and then it was reiterated that “Wir weisen die Inhalte der Pressemitteilung zurück”, focusing on “the contents”, in both cases in plural). It is not clear at all how in the world a statement that general and repetitive amounts to reserving Germany’s position.
Contradicting all the relevant substance of the spokesperson’s statements, Germany suggests that “While the spokesperson did also note that “we naturally reject the relevant content of the press release”, this referred to the receipt of the Note Verbale, which was suggested in the Press Release and with respect to which the journalist had enquired” (CR 2026/30, para. 31, emphasis original). That is incomplete if not inherently inaccurate. To begin with, the spokesperson addressed “contents” in plural and that cannot relate to one single issue such as the receipt of the note. Secondly, at the outset the journalist did expressly ask both about specific violations of international law (using words such as “potenzielle Verstöße gegen die Völkermordkonvention” or “Erleichterung oder Begehung von Verstößen gegen die Völkermordkonvention”, which is not reflected in how Germany has put it at CR 2026/30, points (a) and (b) at para. 31), about Germany’s reaction to Nicaragua’s claims, and about the receipt of the Note, and the spokesperson said that Germany rejects the contents of the press release. Thirdly, the spokesperson has not expressly or specifically said yes or no to answer the question whether the Note Verbale was received, even though the journalist has three times over expressly and in various forms pressed with this question and did not receive a clear answer (querying first “Können Sie, erstens, den Eingang dieser Verbalnote bestätigen?”, then following up with “Habe ich Sie richtig verstanden, dass es diese Verbalnote nicht bis ins Auswärtige Amt geschafft hat?”, and then again pressed about it at the end of the discussion (querying “Die Verbalnote ist noch nicht angekommen?”). If the spokesperson had said expressly that Nicaragua’s Note Verbale was not in fact received, that would be to accuse Nicaragua of lying in public, and in any event, the respondent has acknowledged that the Note Verbale was sent at 7.18pm on 1 February 2024 (CR 2026/30, para. 6), but she did not make it clear enough to remove the journalist’s confusion and, instead, led the journalist to press with the question further.
Also, Germany tries to accord to words “relevant contents” an excessively narrow meaning. If the spokesperson disagreed with Nicaragua stating that the Note Verbale had been sent electronically (and hence received instantly), that would, again, be to accuse Nicaragua of lying in public and probably prompt Nicaragua to publicise the fact and manner of sending the Note Verbale. And this is probably why the spokesperson, when pressed repeatedly about whether the Note Verbale had been received, did not say a plain yes or no.
Given all what was expressly uttered at the press conference (addressed above), it is highly implausible that the spokesperson’s words that nothing else was known (“Alles Weitere ist nicht bekannt”) referred to, as Germany puts it, ““nothing else” (other than the Press Release)” (CR 2026/30, para. 31). This is so for at least two reasons: the spokesperson repeatedly disagreed with the Press Release’s contents on general terms; and she refused, three times over, to say yes or no about whether the Note Verbale was received. So, it would be to put words in her mouth to imply or suggest that she implied into the above general phrase something which she refused to confirm or deny three times over. Also, what matters is not what is known to the press official specifically (and that cannot be verifiably established or accorded conclusive weight in any case), or whether she was entitled to give a more substantial reply than was given on 7 February; what matters, instead, is what she said (as described above). And in any event, that uncertainty (if or as it is alleged it existed), would be definitely removed on 13 and 14 February 2024, when the reminder was sent by Nicaragua and acknowledged by Germany.
Germany states that “To seek to portray this [“this” being Germany’s own account of events that does not impeccably reflect the actual record of the press conference] as an “unequivocal rejection” of the Nicaraguan claims stretches credulity” (CR 2026/30, para. 32). But even if the detail of the actual press conference, not entirely or even sufficiently reflected in the clumsy and abridged account in Germany’s pleadings, were to be disregarded for a second, a further question would not go away: namely how does the same statement which allegedly does not unequivocally reject Nicaragua’s legal claims and thereby lead to the crystallisation of the dispute amount to the unequivocal denial of the fact that the Note Verbale had been received by Germany a good five or six days after it was sent and the fact of it being sent was publicised through the Press Release? How come that the latter is inherently included in the “relevant content” (or “contents”) and the former is not?
Now it is also of essence what happened or could have been expected to happen after the 7 February press conference at which Germany claims that their position was reserved. It is plain clear that the most convenient option for Germany’s case out of the three available options – rejection, acceptance and reserving the position – is the last one. But it is only relatively convenient in the sense that it would not lead to the crystallisation of a dispute (or a concession, as might be the case) as promptly as the other two options would, and the insistence on that somewhat beneficial uncertainty could prolong the state of semi-beneficial ambivalence somewhat further. How much further, though, is the key question.
Generally, reserving the position does not resolve the problem but only postpones it. The “reserving” respondent State has to act at some point, and time works against the respondent State. A long delay would be a procrastination, in essence indistinguishable from how Italy proceeded in Norstar or how Myanmar proceeded in the face of Gambia’s claims, with the outcome of a dispute crystallising in both cases. In addition, there are no prescribed specific time requirements, and length of time is not as important as the real options available to States in the relevant concrete situation.
Reserving the position inherently and invariably includes the possibility, however unlikely in fact, that the incoming allegations could be accepted and thus the case could be conceded. However unlikely that might be, that is exactly and solely what distinguishes reserving the position from either a rejection or acceptance of the other party’s claims. Therefore, reserving the position would not give Germany any significant or durable advantage because, to use Germany’s own words, what “lacks credulity” is precisely the expectation that Germany would go back and genuinely reflect, either alone or with its partner States (Canada, the Netherlands and the UK), whether it should accept or reject Nicaragua’s claims, i.e., whether it should concede the case or not. Such concession of the case would probably have been first of that kind in the history and Nicaragua could not have reasonably expect that to happen. To clarify this further, the option of conceding to Nicaragua’s claims is inherent part of the reserving the position, but not something that could be realistically expected in practice, and both Nicaragua and Germany knew it. That is why reserving the position has very little practical meaning in situations like this.
Therefore, it is not a sound thesis that Nicaragua ought to have waited till Germany would formulate a somewhat more detailed or express positive opposition to their claims (and that requirement does not follow from any case decided before by the Court). There is no requirement that the applicant State ought to wait for a certain specified period or until a certain even occurs, and no relevant case has stated that requirement or was dismissed because that requirement was not fulfilled. An express statement of positive opposition has not been an indispensable requirement in any case decided by the Court or any other tribunal on the subject-matter of the existence of a dispute. Instead, courts and tribunals have stated that express rejection or opposition is not required at all (Cameron v Nigeria, Norstar, Gambia v Myanmar; and the same was demonstrated by underlying facts in Georgia v Russia (all cited above). And the Court also rejected Myanmar’s thesis of ““mutual awareness” based on two explicitly opposed positions” (Gambia v Myanmar, para. 71), which was not mutual awareness but a contradiction in terms, because no valid meaning of awareness could possibly include a further requirement of reaction or assessment. Awareness is a state of mind while express opposition is a course of action. The latter could empirically evidence awareness but that does not mean that the respondent State’s awareness could not materialise without it. In view of all this, it should not be difficult to figure out that Germany’s own above statements have clarified the position about the dispute and amounted to “positive opposition” at least as much as if not more than the conduct of respondent States in the above other cases.
Now, we could wonder what would have happened if, instead of rejecting the “relevant contents” of the Press Release, the spokesperson had used milder or more neutral expressions such as “we naturally reserve our position” or “no comments at this stage”. Even in that case, it would be difficult to strictly expect Nicaragua to wait for any further communication. If Germany had merely said that they were aware of the Press Release and left it at that, the requirement of the existence of a dispute would have been satisfied, prima facie at least, for it would again be difficult to require from Nicaragua to expect that Germany would come back with anything but rejection of Nicaragua’s claims. Germany would either reject those claims, or delay and procrastinate (which latter option would only help the dispute to crystallise, given that silence of a State does not prevent a dispute from materialising, as in Norstar, Cameron v Nigeria or Gambia v Myanmar).
In view of all this, what could the German government have said after, or over and above, what was said at the press conference? It is not rational for Nicaragua to expect that Germany’s position would be reversed and that Germany would concede the case. Instead, Nicaragua would have to wait for rejection of its claims as an obvious and most likely or even inevitable option and acceptance of its claims was an entirely unrealistic option. Germany could have formulated a more detailed rejection, perhaps one that on Gambia v Myanmar is not a required element of a dispute and of “positive opposition”. The only open question that remains is how long would Nicaragua have to wait in the situation when they practically already knew what Germany’s answer was or was going to be? Even if Germany had asked Nicaragua “give us few weeks please”, that would not have altered the essence of the situation, because it was not possible to doubt that Germany would come back afterwards with anything but a clear rejection of Nicaragua’s claims. Even if another method of amicable settlement of disputes had been offered to Nicaragua, that would have been the acknowledgment of the existence of the dispute; in any event, Nicaragua would not have been bound to accept that offer because States are free to choose dispute settlement means (see Manila Declaration) and would have been able to proceed with submitting the case to the International Court.
Therefore, the position was clear as of 7 February 2024. Nicaragua is entirely correct that, on 7 February, Germany had rejected Nicaragua’s claims and a dispute thus existed (and Nicaragua expressly points that out, written observations, pp.45-46, para. 97). Nicaragua did not have to wait for anything else, such as the outcome of consultations with Germany’s partner States. Going forward, Germany was not going to say anything different from what Nicaragua had already heard. As of 7 February, therefore, Nicaragua knew that Germany disagreed with its claims as they had heard or otherwise Germany was bound to disagree with Nicaragua’s claims in a more detailed manner. Nicaragua has even sent a reminder and received acknowledgement on 14 February that Germany was aware of all its claims and hence Nicaragua had all it needed to proceed with instituting proceedings before the International Court.
The “twice removed” argument
To show that Nicaragua’s application is something out of the ordinary, Germany suggests that its subject-matter is “twice removed” from ordinary bilateral relations between Nicaragua and Germany, and hence the Court should apply requirements as to the existence of a dispute rather strictly. It looks as though Germany was proposing a new original concept to be established in international law or the existing ones to be substantially altered and reappraised. And owing to what was stated in Marshall Islands (para. 29, cited above), the concept of dispute is the same across various jurisdictional contexts.
Germany could hardly claim now that Nicaragua’s application was, in any way, unexpected. The specific fact of lodging the application might not have been anticipated long before; but the fact that such applications are always possible as between parties to multilateral treaties embodying erga omnes or erga omnes partes obligations, or as between ones bound by similar customary rules, has nothing extraordinary to it. A dispute between the two States may be bilateral but the legal obligations involved in the case are multilateral, and Germany was always aware (and after Gambia v Myanmar in 2022 officially aware) that any State in Nicaragua’s position would have the standing to bring a case like this. Treaty relations between any two treaty parties could vary empirically but across all treaties it is still the case that one party could raise the issue of another party’s compliance with its treaty obligations, and that includes claims presented by States other than directly injured States. Nor does the concept of dispute acquire any different meaning. It is in reality all about whether one State disputes something regarding another State’s position or conduct and makes that another State aware of that.
Hence, the “twice removed” thesis is a poorly designed common-sense notion – here used with the aim to penalise Nicaragua for bringing a lawsuit in the public interest to enforce erga omnes obligations. While not challenging Nicaragua’s standing expressly, Germany nevertheless tries to undermine it by what it considers to be a more subtle argument, and thus to make erga omnes obligations effectively non-justiciable. Germany’s carefully worded submissions only strengthen that impression: it is suggested that a “special thing about [Nicaragua’s case] is not that it has been brought by a State “other than the injured State” on the basis of erga omnes or erga omnes partes obligations. Such cases are usually only “once removed” from the usual bilateral setting of dispute settlement between an allegedly injured and an allegedly responsible State” (CR 2026/30, para. 39). Germany presents it as an allegedly separate factor that “an application may be lodged by any State against virtually any other State” which now makes it “twice removed” (CR 2026/30, para. 40, emphasis original). That phenomenon is, however, is the very essence of situations involving erga omnes or erga omnes partes obligations. In such situations, every State bound by relevant customary or treaty rules is aware that any other State-party could raise the issue of the former State’s compliance with its relevant obligations. That is part of the legal framework and it is difficult to see how or for what reason such applications would be “unheralded” as Germany suggests they would be. And it also makes sense that Germany did not repeat these arguments in their final round argument of oral pleadings (CR 2026/32).
It also remains to be speculated what would happen had Myanmar tried to import the above thesis into the definition of dispute. Germany invites the Court to adopt a generalised preconception as to “the usual bilateral setting of dispute settlement” which would mean in practice that judicial enforcement of erga omnes obligations would become incredibly more difficult while the general entitlement to bring cases in the public interest would allegedly remain unaffected. The Court is, in essence, invited to import the standing issue into the dispute issue and thus effectively re-validate the 1966 South-West Africa judgment that was done away with in Gambia v Myanmar. Germany is adamant that it wants the Court to apply “usual requirements” of the dispute (para.40), but in effect Germany invites the Court to superimpose a generalised presumption that would amount to a practical hurdle for enforcement of all erga omnes obligations.
Conclusion
It is plainly clear that, in the present case, a legal dispute has arisen and materialised between Nicaragua and Germany well before Nicaragua’s application was submitted to the Court. Marshall Islands is the only case where the dispute was not found to exist, and if the criteria endorsed in that Judgment were to apply to the present case, Germany does not demonstrate that Nicaragua’s application is in any way problematic. But Germany also inaccurately relies on other cases that deal with the concept of a dispute.
Overall, Germany tries to import into the definition of dispute specific indicators or hallmarks as to the type, detail or duration of the relevant exchange or correspondence and tries to thus fortify the pretence that the narrative or episode encountered in other cases has some generalised normative meaning and is thus readily transposable into the context of the present case. The basic criterion remains, however, that a dispute arises wherever the disagreement between the applicant and the respondent States is obvious on the facts of the specific case, no matter what differentials or detail were involved in other cases.