Updated: a day ago
Amit Sikhwal (Junior Associate Editor, Legit)
In April 2014, the Republic of the Marshall Islands instituted proceedings against nine states for their alleged breach of obligations regarding the cessation of the nuclear arms race and nuclear disarmament. Of these nine states, three (India, Pakistan, and the United Kingdom) had recognized the compulsory jurisdiction of the ICJ.
The Marshall Islands claimed that the United Kingdom was in breach of Art. VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which states that Parties should negotiate in good faith “on effective measures” for the “cessation of the nuclear arms race at an early date” and nuclear disarmament. It added that India and Pakistan, though not a party to the NPT, were bound by similar obligations as a matter of customary international law. The NPT is not new for the ICJ. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the Court recognized the importance of Art VI and interpreted it as containing an “obligation to achieve a precise result – nuclear disarmament in all its aspects.” In the Marshall Islands cases, the ICJ had an opportunity to effectuate its prior dictum and revisit its position on nuclear weapons in light of developments in international law.
FACTS OF THE CASE
On 5 October 2016, the World Court declined its jurisdiction, by a vote of nine to seven, to entertain the case brought by the Marshall Islands on 24 April 2014 invoking the provisions of Article 36, paragraph 2 of the ICJ Statute. The Court held that it would not proceed to give a decision on the merits of the case. The Marshall Islands charged India and other States with violations of obligations concerning negotiations regarding cessation of the nuclear arms race and nuclear disarmament. The Court invokes the authority to adjudicate upon any ‘legal dispute’ which arises between two or more States. Thus, the presence of a ‘legal dispute’ at the time of institution of the suit under Article 36, paragraph 2, before the ICJ is a condition for jurisdictional determination.
The Marshall Islands (“the Applicant”) substantiated the existence of the dispute between the two States by referring to the statements made by the Applicant and its representatives at two instances. The first was at the High-level Meeting of the General Assembly on Nuclear Disarmament held on 26 September 2013 when the Foreign Minister of the Applicant urged all nuclear weapons states to intensify efforts to address their responsibilities in moving towards effective and secure disarmament. And the second statement was made by the representative of the Applicant at the second conference on the Humanitarian Impact of the Nuclear Weapons at Nayarit in February 2014 which reads that “every State possessing nuclear arsenals are failing to fulfil their legal obligations under Article VI of the Non-Proliferation Treaty and Customary International Law, and therefore are required to commence and conclude negotiations on nuclear disarmament, immediately to comply with the requirements of Customary International Law.” Thus, the Applicant contends that the statement is a piece of clear evidence that India (“the Respondent”) held ‘positively opposed’ views on this claim by the former by its conduct, giving rise to the “dispute/ disagreement on a point of law or fact, a conflict of legal views or interests” between parties.
Notwithstanding the arguments made by the Applicant, the Court held by a majority vote, that the Applicant could not prove the existence of any ‘legal dispute’ between both the parties at the time of institution of the suit which negates the jurisdiction of the ICJ on this matter. Hence, the ICJ upheld the objection raised by the Respondent on the ground of absence of a ‘legal dispute’ and did not consider other objections raised by the Respondent in its counter-memorial. The paper attempts to identify and collate the stronger arguments which ought to have justified the rejection of jurisdiction of the Court, thus, should have been taken into consideration before passing the judgment on the other above-mentioned ground.
ISSUE OF THE CASE
The Marshall Islands charged India and other States with violations of obligations concerning negotiations regarding cessation of the nuclear arms race and nuclear disarmament.
The first was at the High-level Meeting of the General Assembly on Nuclear Disarmament held on 26 September 2013 when the Foreign Minister of the Applicant urged all nuclear weapons states to intensify efforts to address their responsibilities in moving towards effective and secure disarmament.
The second statement was made by the representative of the Applicant at the second conference on the Humanitarian Impact of the Nuclear Weapons at Nayarit in February 2014 which reads that “every State possessing nuclear arsenals are failing to fulfil their legal obligations under Article VI of the Non-Proliferation Treaty and Customary International Law, and therefore are required to commence and conclude negotiations on nuclear disarmament, immediately to comply with the requirements of Customary International Law.
JUDGEMENT OF THE COURT
After outlining the Parties’ arguments, the Court recalls the applicable law on this question. It explains that the existence of a dispute between the Parties is a condition of its jurisdiction. For a dispute to exist, it must be shown that the claim of one party is positively opposed by the other; the two sides must hold opposite views concerning the question of the performance or non-performance of certain international obligations. The Court’s determination of the existence of a dispute is a matter of substance, and not a question of form or procedure. Prior negotiations are not required where the Court has been seized based on declarations made under Article 36, paragraph 2, of its Statute unless one of the relevant declarations so provides. Moreover, although a formal diplomatic protest may be an important step to bring a claim of one party to the attention of the other, such a formal protest is not a necessary condition for the existence of a dispute. Similarly, a notice of an intention to file a case is not required as a condition for the seisin of the Court. The Court continues by underlining that whether a dispute exists is a matter for objective determination by the Court which must turn on an examination of the facts. For that purpose, the Court takes into account, in particular, any statements or documents exchanged between the parties, as well as any exchanges made in multilateral settings. In so doing, it pays special attention to the author of the statement or document, their intended or actual addressee, and their content. The conduct of the parties may also be relevant, especially when there have been no diplomatic exchanges. In particular, the Court has previously held that the existence of a dispute may be inferred from the failure of a State to respond to a claim in circumstances where a response is called for. The evidence must show that the parties “hold opposite views” concerning the issue brought before the Court. As reflected in previous decisions of the Court in which the existence of a dispute was under consideration, a dispute exists when it is demonstrated, based on the evidence, that the respondent was aware, or could not have been unaware, that its views were “positively opposed” by the applicant. The Court further explains that, in principle, the date for determining the existence of a dispute is the date on which the application is submitted to the Court. Conduct after the application (or the application itself) may be relevant for various purposes, in particular, to confirm the existence of a dispute, to clarify its subject-matter, or to determine whether the dispute has disappeared as of the time when the Court makes its decision. However, neither the application nor the parties’ subsequent conduct and statements made during the judicial proceedings can enable the Court to find that the condition of the existence of a dispute has been fulfilled in the same proceedings. If the Court had jurisdiction concerning disputes resulting from exchanges in the proceedings before it, a respondent would be deprived of the opportunity to react before the institution of proceedings to the claim made against its conduct. Furthermore, the rule that the dispute must in principle exist before the filing of the application would be subverted.
The Court then turns to the case at hand, noting at the outset that the Marshall Islands, under the suffering which its people endured as a result of it being used as a site for extensive nuclear testing programs, has special reasons for concern about nuclear disarmament. But that fact does not remove the need to establish that the conditions for the Court’s jurisdiction are met.
While it is a legal matter for the Court to determine whether it has jurisdiction, it remains for the Applicant to demonstrate the facts underlying its case that a dispute exists.
The Court observes that India relies on the fact that the Marshall Islands did not commence negotiations or give notice to it of the claim that is the subject of the Application to support its contention that there is no dispute between the Parties. India refers to Article 43 of the International Law Commission’s (“ILC”) Articles on State Responsibility, which requires an injured State to “give notice of its claim” to the allegedly responsible State. Article 48, paragraph 3, applies that requirement mutatis mutandis to a State other than an injured State which invokes responsibility. However, the Court notes that the ILC’s commentary specifies that the Articles “are not concerned with questions of the jurisdiction of international courts and tribunals, or in general with the conditions for the admissibility of cases brought before such courts or tribunals”. Moreover, the Court has rejected the view that notice or prior negotiations are required where it has been seized based on declarations made according to Article 36, paragraph 2, of the Statute unless one of those declarations so provides. The Court’s jurisprudence treats the question of the existence of a dispute as a jurisdictional one that turns on whether there is, in substance, a dispute, not on what form that dispute takes or whether the respondent has been notified. The Court next examines the Marshall Islands’ arguments in support of its contention that it had a dispute with India. First, the Court notes that the Marshall Islands refer to two statements made in multilateral fora before the date of the filing of its Application which, in its view, suffice to establish the existence of a dispute. The Marshall Islands relies on the statement made at the High-level Meeting of the General Assembly on Nuclear Disarmament, on 26 September 2013 by its Minister for Foreign Affairs, “urging all nuclear weapons states to intensify efforts to address their responsibilities in moving towards effective and secure disarmament”. However, the Court considers that this statement is formulated in hortatory terms and cannot be understood as an allegation that India (or any other nuclear power) was in breach of any of its legal obligations. It does not mention the obligation to negotiate, nor does it say that the nuclear-weapon States are failing to meet their obligations in this regard. It suggests that they are making “efforts” to address their responsibilities, and calls for an intensification of those efforts, rather than deploring a failure to act. The Court adds that a statement can give rise to a dispute only if it refers to the subject-matter of a claim with sufficient clarity to enable the State against which that claim is made to identify that there is, or maybe, a dispute concerning that subject matter. The 2013 statement relied upon by the Marshall Islands does not meet these requirements. The Court observes that the statement made by the Marshall Islands at the Nayarit conference on 13 February 2014 goes further than the 2013 statement, in that it contains a sentence asserting that “States possessing nuclear arsenals are failing to fulfil their legal obligations” under Article VI of the NPT and Customary International Law. India was present at the Nayarit conference. However, the subject of the conference was not specifically the question of negotiations with a view to nuclear disarmament, but the broader question of the humanitarian impact of nuclear weapons, and while this statement contains a general criticism of the conduct of all nuclear-weapon States, it does not specify the conduct of India that gave rise to the alleged breach. For the Court, such a specification would have been particularly necessary if, as the Marshall Islands contends, the Nayarit statement was aimed at invoking the international responsibility of the Respondent on the grounds of a course of conduct which had remained unchanged for many years. Given its very general content and the context in which it was made, that statement did not call for a specific reaction by India. Accordingly, no opposition to views can be inferred from the absence of any such reaction. The Nayarit statement is insufficient to bring into existence, between the Marshall Islands and India, a specific dispute as to the existence or scope of the asserted customary international law obligations to pursue in good faith, and to bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control, as well as to cease the nuclear arms race at an early date, or as to India’s compliance with any such obligations. The Court concludes that, in all the circumstances, based on those statements ¾ whether taken individually or together ¾ it cannot be said that India was aware, or could not have been unaware, that the Marshall Islands was making an allegation that India was in breach of its obligations. Secondly, the Court considers the Marshall Islands’ argument that the very filing of the Application and statements made in the course of the proceedings by both Parties suffice to establish the existence of a dispute. The Court deems that the case law invoked by the Marshall Islands does not support this contention. In the case concerning Certain Property, the existence of a dispute was referenced by bilateral exchanges between the parties before the date of the application (Certain Property (Liechtenstein v. Germany), Preliminary Objections, Judgment, I.C.J. Reports 2005, p. 19, para.25). The reference to subsequent materials in the Cameroon v. Nigeria case related to the scope of the dispute, not to its existence (Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 317, para.93). Moreover, while it is true that the Court did not explicitly refer any evidence before the filing of the application demonstrating the existence of a dispute in its Judgment in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), in the particular context of that case, which involved an ongoing armed conflict, the prior conduct of the parties was sufficient to establish the existence of a dispute (Preliminary Objections, Judgment, I.C.J. Reports 1996 (II), p. 614, paras.27-29). Instead, the issues the Court focused on, in that case, were not the date when the dispute arose but the proper subject-matter of that dispute, whether it fell within the scope of the relevant compromissory clause, and whether it “persisted” at the date of the Court’s decision. The Court reiterates that, although statements made or claims advanced in or even subsequently to the Application may be relevant for various purposes ¾ notably in clarifying the scope of the dispute submitted ¾ they cannot create a dispute de novo, one that does not already exist. Thirdly, the Court assesses the Marshall Islands' argument that the conduct of India in maintaining and upgrading its nuclear arsenal, and in failing to co-operate with certain diplomatic initiatives, shows the existence of a dispute between the Parties. The Court recalls that the question of whether there is a dispute in a particularly contentious case turns on the evidence of opposition of views. In this regard, the conduct of a respondent can contribute to a finding by the Court that the views of the parties are in opposition. However, as the Court has previously concluded, in the present case neither of the statements that were made in a multilateral context by the Marshall Islands offered any particulars regarding India’s conduct. Based on such statements, it cannot be said that India was aware, or could not have been unaware, that the Marshall Islands was making an allegation that India was in breach of its obligations. In this context, the conduct of India does not provide a basis for finding a dispute between the two States before the Court.
The Court, therefore, concludes that the first objection made by India must be upheld. It follows that the Court does not have jurisdiction under Article 36, paragraph 2, of its Statute. Consequently, the Court doesn't need to deal with the other objections raised by India. The questions of the existence of and extent of customary international law obligations in the field of nuclear disarmament, and India’s compliance with such obligations, pertain to the merits. But the Court has found that no dispute existed between the Parties before the filing of the Application, and consequently, it lacks jurisdiction to consider these questions.
REMEDIES SOUGHT BY PLAINTIFF
The concern of the Republic of the Marshall Islands towards relentless nuclear activities in the world comes in the wake of the horrifying first-hand experience the country has had in the middle of the twentieth century. The country that currently holds a tiny population of 70,000 people had been occupied by the United States during the Second World War, following which the US had conducted a series of nuclear tests on its site. Inbetween 1946-1958, 67 nuclear tests had been carried out in the islands causing large scale destruction. The most destructive of these testing was the hydrogen atomic bomb tested at Bikini Atoll on March 1, 1954, which was reported to be equal in its capacity to 1000 Hiroshima sized bombs. The testing which went by the code name Castle Bravo led to the complete vaporisation of two small islands.
In the 1980s, the Marshall Islands signed an agreement with the United States that made it a self-governing country. Since 1986, the US has been paying compensation to the island country for the destruction caused.
The Non-Proliferation Treaty (NPT) came into effect from 1970 and was aimed at preventing the spread of nuclear activities around the globe through a gradual process of disarmament. As of 2016, 191 nation-states became a signatory to the treaty. India along with Israel, Pakistan, South Sudan and North Korea refused to sign.
Even though India is not a party to the disarmament treaty, the country is bound to keep checks on nuclear activities under customary international law. The Republic of Marshall islands accused India on the grounds that it carries nuclear arms which they believe is a "flagrant denial of human justice." Based on India's refusal to disarm, the island nation decided to take up the matter to the International Court of Justice (ICJ) in Hague, Netherlands. India countered that the claim is beyond the jurisdiction of the court.
(1) By nine votes to seven, upholds the objection to jurisdiction raised by India, based on the absence of a dispute between the Parties;
IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;
AGAINST: Judges Tomka, Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui;
(2) By ten votes to six, Finds that it cannot proceed to the merits of the case.
IN FAVOUR: President Abraham; Vice-President Yusuf; Judges Owada, Tomka, Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;
AGAINST: Judges Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui.
The ICJ was established for settling tensions prevailing among the States. It is one of the few international adjudicatory bodies which have the authority by the consent of the States to adjudicate over the disputes and give binding decisions. It is thus pertinent to note that any kind of unjustified decision by the Court may have serious repercussions, as it may increase the tension between the parties and culminate into the warlike situation. Such an approach of the Hon’ble Court may defeat the purpose for which it was established. However, the Court has been successful in settling disputes among the States by taking a flexible approach and overturning the hardcore procedure hurdles for the greater good of the States. It is thus legitimately expected from the Court to maintain its stature and continue accomplishing its duty in the future.
This case has added another necessary condition to the test of ‘legal dispute’ which increases the threshold of acknowledging the presence of dispute between two States. Also, the ground of ‘objective awareness’ which has been used for the first time by the Court to decline jurisdiction can be abused by other States, using this case as a precedent. In my opinion, it should be reconsidered by the Court and jurists, which would otherwise lead us into a greyer future.
 Obligations Concerning Negotiations Relating To Cessation Of The Nuclear Arms Race And To Nuclear Disarmament (the Marshall Islands v. India), Jurisdiction and Admissibility, 2016 I.C.J. ¶ 56 (‘Marshall Islands Case’).
 Marshall Islands Case, supra note 1, Application ¶ 13.
 Statute of International Court of Justice, 1945, Art. 36(2).
 Follow-up to the 2013 High-level Meeting of the General Assembly on Nuclear Disarmament, G.A. Res 68/32, U.N. Doc. A/RES/68/32 (October 10, 2013).
 Ray Acheson, Beatrice Fihn, Katherine Harrison, Report from Nayarit Conference, February 2014, available at http://www.reachingcriticalwill.org/disarmament-fora/hinw/nayarit-2014/report http://www.mea.gov.in/Speeches-Statements.htm?dtl/27130/Statement_by_External_Affairs_Minister_july_23_2016
 South West Africa Cases (Ethiopia v. South Africa, Liberia v. South Africa), Preliminary Objections, 1962 I.C.J. 319, 328 (‘South Africa Cases’).
 The Mavrommatis Palestine Concessions (Greece v. Britain), Judgment, 1924 P.C.I.J. (ser. A) No. 2, at 11 (‘Mavrommatis Case’).
 Marshall Islands Case, supra note 1, ¶ 54, 55.