Updated: Nov 3, 2022
This article is co-authored by Sameep Khanal.
International Court of Justice has adjudicated the cases of immense magnitude by using its expansive interpretation and not restricting itself strictly to the bilateral dynamics, in turn encouraging litigation in the so-called “big cases”. But the judgement of the Marshall Islands case has flooded the courts with sceptical scrutiny on whether the ICJ is always open to litigation. The decision adjudicated in the Marshall Islands(2016)case has certainly raised questions on whether world court is sceptical on making judicial pronouncement in case of nuclear disbarment. In the further section, the authors would explain the nature of the case and its analysis primarily laying its emphasis on the notion of dispute in international law.
Marshall Islands Case: An Overview
The Republic of Marshall Island (hereinafter referred as Applicant) filed its application in the ICJ against nine states namely China, Democratic People’s Republic of Korea, France, India, Israel, Pakistan, Russian Federation, United Kingdom of Great Britain, Northern Ireland andUnited States of America accusing these states of not fulfilling their obligation with respect to the cessation of the nuclear arms race and nuclear disarmament. Applicants in the same matter differentiated between those three states (India, Pakistan and the United States) which had recognised the compulsory jurisdiction of the ICJ in accordance with Article 36 paragraph 2of the statue of the court and application against the other six states were transmitted to them and no action was taken against them in pursuant to Article 38 paragraph 5 of the rules of the court.
The applicants specifically claimed that the United Kingdoms were in violation of Article VI of the Treaty on Non-Proliferation of Nuclear Weapon (NPT), to which they both were party to. Since, both the Applicant and the United Kingdom were a part of this treaty they had an obligation to negotiate in good faith “on effective measures” for the “cessation of the nuclear arms race at an early date (Decision of the International Court of Justice in the Nuclear Arms Race Case,)”. The applicants also claimed that though India and Pakistan were not parties to NPT but are bound by this treaty as a matter of customary law. India and Pakistan argued before the ICJ that it lacked jurisdiction to entertain the matter and even at the later stage the United Kingdom raised preliminary objections, thus, in pursuant to Article 79 paragraph 5, of the Rules of the Court, the proceedings on merit were suspended and the public hearings took place on these three cases. The main preliminary objections raised by all the three parties were that there was an absence of dispute between the parties.
The Applicants argued that there is the existence of a legal dispute on the very fact that there were statements made by the applicant’s representatives on two instances. These instances were pointed out by the applicant which were, one statement made by their representative in the General Assembly of nuclear disbarment stating that “all nuclear states to intensify efforts to address their responsibilities in moving towards an effective and secure disbarment. (High-level meeting of General Assembly on Nuclear Disarmament, October 10, 2013). The second instance was when the representative of the Applicant during the second conference on the Humanitarian Impact of Nuclear Weapons at Nayarit stated “every state possessing nuclear arsenal are failing to fulfil their legal obligation under Article VI of the Non-Proliferation Treaty and customary International Law, and therefore are required to commence and conclude negotiations on nuclear disarmament, so as to comply with the customary international law (Ray Acheson, February 2014 ). Thus, claimants claimed there is a legal dispute and that the statement that the respondents (India, Pakistan and even the United Kingdom) should act in accordance with the law and should meet their obligation. But the respondents opposed applicants views. This is applicant’s submission raised a conflict between the parties thus giving rise to “legal dispute”.
In the preliminary objections, the respondents argued that on the date of filing of the Marshall Islands’ application there was no “justifiable dispute” between Marshall Island and the United Kingdom. The respondents contended that according to the principle of customary international law any state intending to invoke the responsibility of another state must give notice to its claim to that state, and such notice is a pre-condition for a dispute. The respondents also cited the cases of Georgia v. Russian Federation[i]and Belgium v. Senegal[ii]. The respondents asserted that since these requirements have not been satisfied there is no dispute. In regard to the two statements made on behalf of the applicants; the respondents were of the view that neither the content of these statements nor the circumstances in which they were made produce any evidence that a dispute existed between the parties. Respondent thus submitted that there was no conflict of legal positions between the parties and subsequently there is no “justifiable dispute”.
ICJ has defined dispute and laid down certain parameters for a matter to be considered as the dispute in its earlier judgments. The dispute has been defined as “a disagreement on a point of law or fact, a conflict of legal views or of interests” between the parties (1924). The parameters laid down by the ICJ are (a) the claim of the party must be opposed by the other party ( December 1962) (b) the matter should be one of objective determination by the courts which must turn on examination of facts (1950)”.
Taking further step ICJ in Marshall Islands introduced the criteria of “objective awareness”, which states that a dispute exists when it is demonstrated, on the basis of evidence that was aware and could not have been unaware that its views were “positively opposed” by the applicants[iii].
ICJ while dealing with the preliminary question in the Marshall Islands laid its emphasis on these points to arrive at a conclusion. Though court accepted the fact that the views of the parties are in disagreement, the requirement of “objective awareness” was not fulfilled as none of the statements were made in multilateral context by the Marshall Islands and claims made by marshall Islands were general in nature and not specific towards the respondents[iv]. The fact that the respondents were unaware about the alleged accusations that the applicants were claiming about the potential breach of the treaty was taken into special consideration by the court. Court held that the applicants were not able to produce evidence which pointed out towards any bilateral diplomatic exchanges between the applicants and respondents notifying that they were in breach of their obligation. Thus, the court concluded that the first preliminary objection made by the United Kingdom is to be upheld and thus as per its statue the court has no jurisdiction over this matter.
The dissenting opinions in the cases pointed out to the fact that the application of the principle of “objective awareness” overlooks the pragmatic and flexible jurisprudence of the ICJ. Generally, the approach adopted by the ICJ is a flexible one and which clearly acknowledges that though all the requirement of a ‘legal dispute’ at the time of initiating the proceedings is not fulfilled the court will acknowledge the presence of a dispute[v]. The court even grants time to the applicant in order to fulfil all the legal requirements for a legal dispute after the initial proceedings. Judge Crawford while giving his dissenting opinion stated that “Objective awareness” is not a necessary ground for determining a legal dispute[vi].
Implications: Formalism or Deterring Frivolous Claims?
Marshall Islands case has given novel clarifications in relation to the notion of dispute in international law. It is quite understandable that the courts must maintain a delicate balance between the international community’s interest in providing access to justice and peaceful settlement of the dispute, in order to avoid frivolous litigations. But, the ICJ in its previous judgement has been flexible and has adopted the “flexible approach” when there is a question over its jurisdiction.
In the Marshall Islands, Court deviated from its judicial orders, such as the one’s given in Croatia v. Serbia and Western Sahara Case wherein a flexible approach was adopted by stating that though all the requirements of the legal dispute are not fulfilled the Court will consider the matter as a dispute in order to maintain international community’s interest in providing access to justice. But this case has the Court leaning heavily towards judicial formalism belying its earlier flexibility. While the judgment of court doesn’t have precedential value, but the consistent view of the court would give its verdict on dispute the form of Jurisprudence constante, a reliable and consistent direction in which court’s view is leaning in certain issues.
The decision also came into scrutiny for the composition of judges which were formed mostly from the nuclear developing nations. The analysis of the voting trend suggests that the voters deciding against the dispute were either former legal advisers to government or law agencies or were diplomats of various countries. This has also led to critique that ICJ judges were trying to limit the adjudication in the field of nuclear disbarment and trying to restrict it to the political arena itself. While the judges of ICJ are highly impartial and independent and there are no established challenges overturning their judgment, the case still comes under scrutiny inviting more rigorous discussion on the geopolitical philosophy affecting the judgement of the justices of the world court. The judgment also continues inertia of the world court to dwell on the issue of nuclear weapons following its indecisive advisory opinion in Legality of the Threat or the Use of Nuclear Weapons.
This case has brought certain new dimensions to the field of litigation and the notion of dispute in international law, such as necessary conditions to test a “legal dispute” and even the test of “objective awareness” was introduced by the court for the very first time to decline its jurisdiction over a particular matter and the “objective awareness” tests may add another obstacle to accessing international adjudication. Even the Court held that, in principle, the existence of a dispute is to be determined as the date the application is submitted to the court[vii]. Taking a note of these points, Judge Crawford in his dissenting opinion clearly stated that the court has shifted from a “tradition of flexibility” to a “formalistic approach”[viii].
The formalistic approach adopted by the court may act as another barrier for the developing and weaker nations who may bring a suit against nuclear nations or/and stronger nations. Marshall Islands’formalistic approach will likely filter out significant cases at the preliminary stages and it is likely the nuclear weapon and its legality will not be tested in the world court any sooner.
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A high-level meeting of General Assembly on Nuclear Disarmament. October 10, 2013. October 10, 2013. G.A/Res/68/62.
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2016.Obligation Concerning Negotiation Relating to Cessation of Nuclear Arms and Nuclear Disarmament (Marshall Island v. India), (Marshall Island v. Pakistan), (Marshall Island v. the United Kingdom), Jurisdiction and Admissibility ICJ Reports. 2016.
Ray Acheson, Beatrice Fihn and Katherine Harrison. February 2014.Report from Nayarit Conference. February 2014.
December 1962.South-West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa). s.l. : International Court of Justice (ICJ), December 1962.
1924.The Mavrommatis Palestine Concessions (Greece v. Britain). P.C.I.J (ser.A.) No.2, 1924 P.C.I.J (ser.A.) No.2 at 11. s.l. : Permanent Court of International Justice, 1924.
[i] Application of the International Convention on the elimination of all forms of Racial Discrimination (Georgia v. Russian Federation). [ii] Questions relating to the obligation to prosecute and extradite (Belgium v. Senegal). [iii] Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Columbia), Preliminary Objections 2016 ICJ Para 16. [iv]Obligation Concerning Negotiation Relating to Cessation of Nuclear Arms and Nuclear Disarmament, (Marshall Island v. the United Kingdom), Jurisdiction and Admissibility,2016 Para 57. [v] Application on the Convention of Prevention and Punishments of the Crime of Genocide (Crotia v. Serbia), Preliminary Objections, 2015 I.C.J. Para 81. [vi] Obligations Concerning Negotiation Relating to Cessation of Nuclear Arms and Nuclear Disarmament (Marshall Island v. India), Jurisdiction and Admissibility, 2016 I.C.J Para 56 (Marshall Island Case) [vii] Obligation Concerning Negotiation Relating to Cessation of Nuclear Arms and Nuclear Disarmament (Marshall Island v. India), Jurisdiction and Admissibility,2016. [viii] Obligation Concerning Negotiation Relating to Cessation of Nuclear Arms and Nuclear Disarmament (Marshall Island v. India), (Marshall Island v. Pakistan), (Marshall Island v. the United Kingdom), Jurisdiction and Admissibility,2016.