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Nuclear Weapons and the Court

  • Surabhi Ranganathan (a1)

Extract

Although caution must be exercised in attributing a policy to the International Court of Justice, it is difficult not to see the Marshall Islands judgments as part of a longer trend of the Court using formalistic reasoning to decline cases concerning nuclear weapons.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

References

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1 Nuclear Tests (N.Z. v. Fr.), 1974 ICJ Rep. 457 para. 65 (Dec. 20) [hereinafter Nuclear Tests-NZ]; Nuclear Tests (Austl. v. Fr.), 1974 ICJ Rep. 253 para. 62 (Dec. 20).

2 Nuclear Tests-NZ, Application Instituting Proceedings 9 (May 9, 1973).

3 Nuclear Tests-NZ, supra note 1, para. 63.

5 Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, Application Instituting Proceedings paras. 19–20 (Aug. 21, 1995).

6 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 1996 ICJ Rep. 66 (July 8) [hereinafter WHO-Nuclear Weapons].

7 WHO-Nuclear Weapons, Request for an Advisory Opinion 6 (Sep. 3, 1993).

8 WHO-Nuclear Weapons, supra note 6, at paras. 22, 31.

9 See, e.g., Obligations concerning Negotiations relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. UK), Preliminary Objections paras. 50, 52 (Oct. 5, 2016) [hereinafter Marshall Islands-UK].

10 Marshall Islands-UK, Dissenting Opinion of Judge Crawford para. 1.

11 See id. at paras. 3–19. See also, Marshall Islands-UK, Dissenting Opinion of Judge Robinson paras. 23–39; Declaration of Judge Tomka paras. 19–28.

12 Marshall Islands-UK, Declaration of President Abraham para. 10.

14 Marshall Islands-UK, Dissenting Opinion of Judge Robinson para. 52–55; Dissenting Opinion of Judge Bennouna 4; Declaration of Judge Tomka paras. 26–28; Separate Opinion of Vice-President Yusuf paras. 24–26. Even judges joining the majority agreed: Marshall Islands-UK, Declaration of Judge Gaja; Separate Opinion of Judge Bhandari para. 13.

15 Marshall Islands-UK, Dissenting Opinion of Judge Crawford para. 20.

16 Id. at paras. 21, 31. See also, Marshall Islands-UK, Dissenting Opinion of Judge Cançado Trinidade para. 19; Dissenting Opinion of Judge Robinson para. 67.

17 Obligations concerning Negotiations relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. India), Preliminary Objections, Declaration of Vice-President Yusuf paras. 25, 32 (Oct. 5, 2016) [hereinafter Marshall Islands-India]; Obligations concerning Negotiations relating to the Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. Pak.), Preliminary Objections, Declaration of Vice-President Yusuf paras. 23, 30 (Oct. 5, 2016) [hereinafter Marshall Islands-Pakistan].

18 See Marshall Islands-India, Separate Opinion of Judge Bhandari para. 41.

19 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion 1996 ICJ Rep 226 (July 8) [hereinafter UNGA-Nuclear Weapons].

20 Id. at para. 105(2)(E).

21 Martti Koskenniemi, The Silence of Law/The Voice of Justice, in International Law, the International Court of Justice and Nuclear Weapons 488, 496–497 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999).

22 Id. at 497–498.

23 UNGA-Nuclear Weapons, supra note 19, at paras. 99–103, 105(2)(F).

24 UNGA-Nuclear Weapons, Declaration of President Bedjaoui para. 23.

25 Id. at para. 6.

26 UNGA-Nuclear Weapons, Dissenting Opinion of Judge Oda paras. 8, 25.

27 See UNGA-Nuclear Weapons, Request for Advisory Opinion paras. 21 ff. (Jan. 6, 1995); World Health Assembly, 46th Meeting, Verbatim Records of Plenary Meetings, WHA46/1993/REC2 (May 3–14, 1993) [hereinafter WHA records].

28 WHA records, id. at 275.

29 UNGA-Nuclear Weapons, Dissenting Opinion of Judge Oda paras. 15 ff.

30 WHA records, supra note 27, at 275.

31 UNGA-Nuclear Weapons, supra note 19, para. 13.

32 Id. at para. 17.

34 In this context, see also UNGA-Nuclear Weapons, Declaration of Judge Vereshchetin 281.

35 See, e.g., Daniel H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty 35–108 (2011). Joyner notes efforts by the Obama administration to restore balance to the bargain; but its record is mixed, including a recent vote against a UNGA resolution convening multilateral disarmament negotiations: GA Res. 71/258 (Jan. 11, 2016).

36 See, e.g., Condoleeza Rice, Opening Remarks to the US Senate Committee on Foreign Relations (Apr. 5 2006): “It is simply not credible to compare India to North Korea or to Iran. While Iran and North Korea are violating their IAEA obligations, India is making new obligations by bringing the IAEA into the Indian program and seeking peaceful international cooperation. Iran and especially North Korea are, of course, closed non-democratic societies. India is a democracy. In fact, India is increasingly doing its part to support the international community's efforts to curb the dangerous nuclear ambitions of Iran.” In the 2000s, the United States made a major effort to play down India's proliferation record, on the basis that India was a responsible ally rather than a “rogue” state.

37 On these implications of India's nuclear treatment, see Surabhi Ranganathan, Strategically Created Treaty Conflicts and the Politics of International Law 306 ff. (2014).

38 See Marshall Islands-UK, Declaration of Judge Tomka para. 39; Separate Opinion of Judge Bhandari para. 18 ff.

39 Marshall Islands-UK, Preliminary Objections of the United Kingdom para. 83 ff. (June 15, 2015). The case referred to is Monetary Gold Removed from Rome in 1943 (It. v. Fr., UK, and US), 1954 ICJ Rep. 19 (June 15).

40 Marshall Islands-UK, Preliminary Objections of the United Kingdom para. 104 ff.

41 Id. at para. 106. The United Kingdom here relies on Northern Cameroons (Cameroon v. UK), 1963 ICJ Rep. 15 (Dec. 2).

42 Marshall Islands-UK, Preliminary Objections of the United Kingdom para. 106.

43 Marshall Islands-Pakistan, Counter-memorial of Pakistan para. 1.12 (Dec. 1, 2015).

44 See Marshall Islands-UK, Dissenting Opinion of Judge Crawford paras. 32–33. On Crawford's previous arguments, see Certain Phosphate Lands (Nauru v. Austl.), Verbatim Record, ICJ Doc. CR 91/20, at 49–79 (Nov. 19, 1991), and East Timor (Port. v Austl.), Verbatim Record, ICJ Doc. CR 95/7, at 51–60 (Feb. 6, 1995).

45 Though it has a long pedigree: see Martti Koskenniemi, The Function of Law in the International Community: 75 Years After, 79 Bri. Y.B. Int'l L. 353 (2008).

46 E.g., Obligation to Negotiate Access to the Pacific Ocean (Bol. v. Chile), currently on the Court's docket.

47 See Juliette McIntyre, Declaratory Judgments of the International Court of Justice, 25 Hague Y.B. Int'l L. 107, 119, 127 ff. (2012).

48 GA Res. 71/258 (Jan. 11, 2016).

49 Int'l Law Comm'n, Articles on Responsibility of States for Internationally Wrongful Acts arts. 42, 48, UN Doc. A/56/10 (2001).

50 Marshall Islands-UK, Dissenting Opinion of Judge Robinson para. 70.

51 E.g., Case Concerning the Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 ICJ Rep. 3, paras. 33–34 (Feb. 5); Military and Paramilitary Activities in and against Nicaragua (Nicar. v. US), 1984 ICJ Rep. 392 (Nov. 26).

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