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
In 1974, it decided not to exercise jurisdiction in the Nuclear Tests
cases brought against France by Australia and New Zealand on the ground that,
following France's unilateral declaration to cease atmospheric nuclear tests in
the South Pacific, their claims “no longer ha[d] any object.”
The judgments denied the applicants the
declarations they had sought as to the violation of their rights,
but permitted them to request a re-examination of the
situation “if the basis of this Judgment were to be affected.”
However, in 1995, the Court dismissed
New Zealand's request for such an
examination in connection with France's proposed underground nuclear
tests in the same region, on the basis that its previous judgment had concerned only
Here, it ignored
that New Zealand's previous application had been
founded on the harm caused to the South Pacific environment by nuclear testing and, at
the time, atmospheric testing was the form known to be harmful and used by France in
Science had since revealed
the dangers of underground testing, but this knowledge failed to move the Court from its
reading of its previous judgment. A similar failure to focus on material factors
underpinned its rejection of the World Health Organization (WHO)’s request for an advisory opinion in
The WHO had asked the Court whether, in
view of their health and environmental effects, the use of nuclear weapons in armed
conflict violated states’ obligations under international law.
The Court reasoned that the legality of use of nuclear
weapons was irrelevant to the WHO's work of preventing and alleviating their
health effects; it thus lacked standing to request the opinion.
The Marshall Islands judgments rely on a fresh pretext: that there was
no dispute between the applicant and the respondent states, because it could not be
established that the latter were “aware, or could not have been unaware”
of the dispute. The Marshall Islands had not done enough to bring the “opposition
of views” to their notice.
this respect, a few points are worth noting. Thereafter, the essay focuses on the
Court's function in nuclear weapons cases, in view of the shape taken by nuclear
governance in recent years.
On the Marshall Islands Judgments
The first point is that the Court has made a new and unforeseen requirement of
“objective awareness” the basis of its decision.
In doing so, it has made inaccurate use of its
own previous jurisprudence.
that the Court's
President defended his affirmative vote on the basis of the
“judicial imperative” for the Court to be “highly consistent in
its jurisprudence, both in the interest of legal security and to avoid any suspicion
of arbitrariness,” this is ironic.
The Court has also achieved another dubious first: rejecting cases in entirety on a
basis that, even if reflecting a minor procedural flaw in the applicant's
approach (perhaps it could have previously voiced its opposition to the
respondents’ nuclear postures in more specific terms), was easily cured. As
several dissenting judges noted, the Marshall Islands’ statement at the
Nayarit Conference, referring to failures by “states possessing nuclear
arsenals,” sufficiently indicated an incipient dispute, which became
crystallized by the pleadings before the Court.
Were the state to refile the cases now, the Court
could not find the respondents unaware of the dispute, and would have to proceed to
other issues. Knowing this, it would have been in the interests of judicial economy
and sound administration of justice not to treat lack of awareness as a procedural
Crawford went further, distinguishing multilateral disputes brought in the
collective interest from bilateral ones.
The former could crystallize at multilateral fora. And the
Marshall Islands’ statement, viewed in context of a broader multilateral
disagreement on the progress of disarmament negotiations, was sufficient to
establish a dispute without the Court needing to overlook any procedural flaw.
A third point relates to the specific reasoning adopted by two judges. Vice-President
Yusuf was the only one to distinguish the case against the United Kingdom
from those against India and Pakistan. In the latter cases, he agreed that there was
no dispute because India and Pakistan had consistently supported disarmament
negotiations. There was no divergence of views between them and the Marshall
Bhandari joined the majority in all three cases for the same reason,
although only in the case against India did he explain his view that there was
“more convergence than divergence” between the relevant states.
Leaving aside the accuracy of their assessments, the two judges wrongly characterized
the dispute itself. The claim brought by the Marshall Islands related to the
existence and violation of an obligation to negotiate. It could not be dispelled by
a finding that the respondents sympathized with the concerns that had actuated it.
To be clear, at the merits stage the judges could have found that the respondents
did not have, or were not in breach, of an obligation to negotiate. But, this
finding would not mean that such issues had not been in dispute at all.
In sum, the Court wrongly concluded that there was no dispute between the Marshall
Islands and the respondents. The remainder of this essay will explain why, in doing
so, it betrayed its own judicial function.
The Shadow of that
Nuclear Weapons Case
I want to first refer to the case that I have not yet mentioned: the Court's
Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, in response to the UN General Assembly's
Delivered on the
same day as the WHO opinion, it is (in)famous for a pair of conclusions:
[T]he threat or use of nuclear weapons would generally be contrary to the
rules of international law applicable in armed conflict …;
However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defence, in which the very survival of a
State would be at stake;
These sentences are viewed as having left the issue confused. Indeed, individual
judges in the case read different meanings into them, including that the use of
nuclear weapons is always illegal, is legal in a carefully-defined exceptional
circumstance, or is legal in a broader and unspecified range of circumstances. For
many commentators, this was yet another example of the Court proving unable to
provide a definitive answer on nuclear weapons.
Nevertheless, there is reason to appreciate the Court's approach. An
alternative would have been to specify the measurements of necessity and
proportionality governing legal use of nuclear weapons. As Martti
Koskenniemi notes, that would have led the Court onto terrain that it
wished to avoid: it would have expressly conceded the legality of the use of nuclear
weapons under certain circumstances, and redescribed the pure horror of nuclear
explosion in a normalizing language of proportionality calculation.
By remaining silent, the Court
left “room for the workings of the moral impulse, the a-rational,
non-foundational appeal against the killing of the innocent.”
Nor was that its only contribution. In an unexpected coda, the judges unanimously
declared that the 1968 Nuclear Non-Proliferation Treaty (NPT) gave rise to an
obligation to pursue in good faith and, moreover, bring to a conclusion,
negotiations relating to nuclear disarmament: i.e., an obligation of result as well
as an obligation of conduct.
Bedjaoui further declared that the obligation had also “acquired
a customary character.”
The Court's conclusion on the negotiation
obligation is the foundation for the present cases, and Bedjaoui's
declaration no doubt a reason why the Marshall Islands nominated him as ad hoc
Furthermore, the Advisory Opinion was one instance in which the Court set aside its
reticence on nuclear issues, acknowledging—in the President's
words—“a duty to play its part, however small, in this rescue
operation for humanity” from “unremitting nuclear
I will say
more on this below, to make the argument that it is precisely this duty that the
Court has reneged on in the present cases.
The Court's Part
At the time of the two advisory opinions, Judge Shigeru Oda had suggested
that the Court decline both requests. For, both were outcomes of
lobbying by nongovernmental organizations and nonaligned states that sought to
instrumentally use the Court to “laterally achiev[e]” an end
unattained by other means: complete nuclear disarmament. He did not think it
appropriate for the Court to be used in such a “political” way.
He was partially right: the
opinions were sought in the hope that they would generate impetus
for disarmament. Delegations at the World Health Assembly and the General Assembly
expressly voiced the need to recruit the Court.
In a poignant statement, the delegate from
Vanuatu—another small Pacific state reeling from the effects of past nuclear
tests—noted that progress in obtaining a ban on atmospheric nuclear testing
in the Pacific was only achieved once Australia and New Zealand took the matter to
In the present
instance too, her speech suggested, the attempt to seek the Court's
intervention was guided by awareness of an otherwise insurmountable cause.
Judge Oda's apprehension of the political use of legal institutions was
lop-sided. The requests for advisory opinions arose in a context where the bargain
underlying the NPT—that states possessing nuclear weapons would negotiate
disarmament while all others would refrain from acquiring such weapons—was
unravelling. Developments in the preceding years had aimed at strengthening one end
of the bargain, i.e. nonproliferation. These included revival of the Nuclear
Suppliers Group (NSG), expansion of the International Atomic Energy Agency
(IAEA)’s verification mechanisms, and the United States’ 1994 Nuclear
Non-Proliferation Act. Although not unwelcome, they shifted the focus away from the
other end of the bargain, i.e. disarmament. Negotiations had languished, with
diminishing support for UN resolutions calling for a binding prohibition on the
threat or use of nuclear weapons, and stalled conclusion of a comprehensive test ban
States like the
United Kingdom asserted the “legality” of their nuclear deterrent
under the NPT,
infinite postponement of complete disarmament. It was not inappropriate to ask the
Court to assess the validity of such claims; its advice could clarify the rights and
expectations of all states, and, perhaps, restore balance to the NPT bargain.
The Court to its credit dismissed the suggestion that it should be inhibited by the
political motivations underlying the request, noting that the General
Assembly's question would not entail deviation from its routine task of
assessing “the legality of the possible conduct of States.”
Importantly, aware that its
findings would be a political prize for either side, it also asserted that
“in situations in which political considerations are prominent it may be
particularly necessary” to obtain its opinion on the law; this would provide
“an additional element in the negotiations.”
With this recognition of its influence, it
proceeded to pronounce—ultra petita, per some judges
—on the character of the
obligation to negotiate provided in the NPT. Evidently, the Court did not fear being
politically coopted; in fact, it showed itself ready to play a part in the campaign
against nuclear weapons, perceiving its contribution as not only compatible with,
but also fully part of its judicial function.
Nuclear Governance Today
To discuss how the Court should have thought of its role in the current cases, let us
first recollect the environment in which they were filed. In the past two decades,
the NPT bargain has further eroded. Proliferation rather than disarmament
remains the focus.
discursive shift catalyzed by the United States in the 2000s in how both the problem
of proliferation and solutions to it are understood, remains in place. This shift
rather than actions;
networks like the NSG, Proliferation Security Initiative, Missile Technology Control
Regime, and Global Nuclear Energy Partnership rather than NPT rules and IAEA
verification processes. While this might occasionally enable creative diplomatic
engagement, it promotes differential treatment of states based on political
friendships and enmities. Corresponding outcomes, such as the de facto recognition
nuclear weapons and uncriticized renewal of UK's Trident system,
have resulted in arguments of unequal treatment, a muddling of the nonproliferation
principle, and further recession of the disarmament goal.
The period since the advisory opinions has
witnessed not only a rise in the number of states with declared nuclear weapons
capability, but also the emergence of well-resourced nonstate actors with unforeseen
levels of access to strategic information and weaponry, leading to real fears about
their acquiring control over nuclear weapons.
In this context, the Marshall Islands, encouraged by NGOs, filed its cases obviously
with a similar aim as that animating the WHO and General Assembly requests. Its move
was both an act of hope—from a state preoccupied by another threat of
near-certain destruction (climate change)—that a nuclear weapons-free future
remains a collective interest worth fighting for; and an act of faith, that the
Court would once more prove an ally in the fight. Let us now turn to what the Court
might have said.
The Court and its Function
It is interesting to consider the arguments made in support of the view that it was
not compatible with the Court's judicial function to address the issues
raised by the Marshall Islands. Prominent in the respondents’ submissions,
and referenced by some of the judges,
were two points. First, in reference to the Monetary Gold principle, that
the cases engaged the interests of third states who were not before the Court.
Second, and related, that any
order made by the Court would have no practical effect: A direction to the
respondents to undertake negotiations could not be fulfilled without cooperation
from other states, and the Court could not mandate such cooperation.
Thus, the argument went, it should
not pass judgment at all. For, “it is not the function of the Court merely to
provide a basis for political action.”
Perhaps to distinguish the Court's advisory
function in view of its assertions in General Assembly-Nuclear
Weapons, it was stated that “[w]hen the Court adjudicates on the
merits of a dispute, one or other or both parties should … be in a position
to take some … action or avoidance of action which would constitute
compliance with the Court's judgment.”
(Pakistan, indeed, described the Marshall
Islands’ application as “a veiled request for an advisory
Cumulatively, these objections point to the question of what findings would have been
appropriate in the present cases. The first point, i.e. the Monetary
Gold principle, represents a well-rehearsed argument, but is not here
an insuperable objection. As Judge Crawford—who once successfully argued
against it in Certain Phosphate
Lands and for it in East Timor—noted, the
case-law has set limits to its application.
Although the principle precludes findings against
third states, it remained open to the Court to determine that the respondents had
breached an obligation to negotiate by their own conduct.
The second objection amounts to an argument that because achieving disarmament (or
effective negotiations) rests on factors other than the respondents’ will,
there is no purpose to the Court's finding them in breach of their
negotiation obligations. In effect, the Court should recognize that politics, not
law, was the determining factor. And it should construe its judicial function by
reference to that recognition, confining its focus to cases of less political
import. Put this way, the argument seems absurd.
There are, however, two material issues raised by it
that deserve specific rebuttal.
One is the implied suggestion that there was no relevant legal point to be settled by
this case. That is not so: the Court was asked whether three states had fulfilled
their legal obligations to pursue negotiations in good faith. Its response might
have clarified how to evaluate this still vague concept, which, apart from settling
the dispute on this issue in the present cases, could have relevance also in other
The other is what factors are relevant to the Court's assessment of whether
the respondents will be “in a position to take some … action or
avoidance of action.” In Northern Cameroons, where this
criterion was articulated, the treaty on which a declaration was sought had expired,
and a new status established; thus, there was no legal basis for
action. The Court noted in that case that a declaratory
judgment which “expounds a rule of customary law or interpreted a
treaty which remains in force,” is a different matter; here the
Court's judgment “will naturally have ‘a continuing
The present cases have this character.
The argument made is rather one of factual impediments, i.e., the
postures of other nuclear weapons-possessing states. There are good reasons why this
argument should not be accepted as determinative: neither are those postures the
sole condition for the respondents’ actions, nor the only limit upon them.
Regardless of those states’ cooperation, the respondents might take various
steps in furtherance of their obligations to negotiate and achieve disarmament. For
instance, they might have supported the recent General Assembly
resolution convening multilateral negotiations.
As it happens, the United Kingdom voted against
the resolution, while India and Pakistan abstained; none are likely to participate
in the conference that will begin this year.
Moreover, the postures of other states will be a factor in practically any case that
concerns a collective international interest. In many such cases, each state might
find it sensible to act only if other states also play their part: climate change
action and conservation of global commons are examples. International law recognizes
such situations as giving rise to obligations of interdependent character, such that
each state's performance or breach affects the rights and interests of other
states. Such obligations are no less binding for that reason; the Articles on State
Responsibility even provide expansive rules of standing in their
But what is the
point of such developments if the Court is asked to construe its judicial function
to exclude them from its consideration?
In fact, unless it sees itself purely as an arbitral body, the Court should embrace
the role of promoting and protecting obligations in the collective interest. Doing
so will not entail any radical transformation of approach. There is enough that it
can do while staying within familiar norms of propriety such as that encapsulated in
the Monetary Gold principle. Perhaps, this might imply the
occasional obiter dictum, as well as pronouncing purely declaratory judgments or
confining the relief ordered to directions to act in good faith, as elaborated in
the exercise of legal reasoning. Such orders do not overreach the Court's
judicial function. Nor, in adding the weight of clarified legal obligation to
states’ policy choices, do they seem without “practical
effect.” The change that is entailed is a simple one: not
dismissing cases on specious grounds, and perhaps a less reserved approach to
In the conclusion to his dissenting opinion, Judge
Robinson writes “with this Judgment, it is as though the Court has
written the Foreword in a book on its irrelevance to … settlement of disputes
that implicate highly sensitive issues such as nuclear disarmament.”
This would be a sad outcome indeed
for an institution that had once adopted a stance of procedural
flexibility in the bid to restore trust in itself as capable of
influence of the most powerful states.