Published online by Cambridge University Press: 07 September 2017
In this trio of decisions, the International Court of Justice (ICJ or Court) rejected applications in which a small island state claimed that three larger states known to possess nuclear weapons had breached their international obligations to undertake and conclude negotiations leading to nuclear disarmament. The Republic of the Marshall Islands, the Court acknowledged, had been the location of repeated nuclear weapons testing from 1946 to 1958, when the United States administered the archipelagic nation under the trusteeship system of the United Nations. The Court further recognized that the applicant, “by virtue of 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” (para. 44). Nevertheless, it ruled that the cases could not go forward because the requisite legal dispute was absent at the time that the Marshall Islands filed its applications against India, Pakistan, and the United Kingdom.
1 The Court simultaneously issued three separate judgments, all similarly titled, and all available at http://www.icj-cij.org. For ease and economy of reference, this note will focus on, and refer primarily to the text of, Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. UK), Judgment (Oct. 5, 2016) (hereinafter RMI v. UK). As explained in the text, with a few exceptions mutatis mutandis, the opinions in each case are quite similar but do differ in some respects; where appropriate, references to the other two decisions—Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. Pak.), Judgment (Oct. 5, 2016), and Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. India), Judgment (Oct. 5, 2016)—will be indicated as “RMI v. Pakistan” and “RMI v. India,” respectively. Where required, references to concurring and dissenting opinions are separately noted.
2 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, 729 UNTS 161 [hereinafter Non-Proliferation Treaty]. For a list of states parties, see http://disarmament.un.org/treaties/t/npt.
3 Non-Proliferation Treaty, Art. VI.
4 RMI v. UK, supra note 1, para. 20, quoting Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, paras. 100, 105(2)(F) (July 8).
5 GA Res. 51/45 M (Dec. 10, 1996). The UN General Assembly has enacted similar resolutions annually since 1996.
6 RMI v. India, supra note 1, paras. 1, 11; RMI v. Pakistan, supra note 1, paras. 1, 11.
7 RMI v. UK, supra note 1, para. 23 (setting out, in addition to the first objection just quoted, four others, pertaining to treaty reservations, the absence of third-party nuclear-weapon states “whose essential interests are said to be engaged in the proceedings,” and the assertion that a judgment on the merits “would have no practical consequence”).
8 RMI v. India, supra note 1, paras. 22–24 (using the term “legal dispute” rather than the term put forward by the United Kingdom, “justiciable dispute”); RMI v. Pakistan, supra note 1, paras. 22–24 (same).
9 ICJ Statute Article 36(2) prescribes conditions for exercising the jurisdiction of the Court in all legal disputes concerning: “(a) the interpretation of a treaty; (b) any question of international law; (c) the existence of any fact which, if established, would constitute a breach of an international obligation; and (d) the nature or extent of the reparation to be made for the breach of an international obligation.”
10 See, e.g., Mavrommatis Palestine Concessions (Greece v. Britain), Judgment No. 2, 1924 PCIJ (ser. A) No. 2, at 11; South West Africa (Eth. v. S. Afr.; Liber. v. S. Afr.), Preliminary Objections, Judgment, 1962 ICJ Rep. 319, 328.
11 India and the United Kingdom had sought to draw support for their notice claim from the Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries Thereto, Art. 43, in Int'l Law Comm'n Rep. on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10 (2001). RMI v. UK, supra note 1, paras. 27, 45.
12 In the two other judgments, the Court applied verbatim language to reach these same conclusions regarding the United Kingdom to the other two respondents, India and Pakistan, and thus upheld the analogous preliminary objection in each case.
13 Voting for: President Ronny Abraham (France), along with Judges Hisashi Owada (Japan), Christopher Greenwood (United Kingdom), Xue Hanqin (China), Joan E. Donoghue (United States), Giorgio Gaja (Italy), Dalveer Bhandari (India), and Kirill Gevorgian (Russian Federation); voting against: Vice-President Abdulqawi Ahmed Yusuf (Somalia) and Judges Peter Tomka (Slovakia), Mohamed Bennouna (Morocco), Antônio Augusto Cançado Trindade (Brazil), Julia Sebutinde (Uganda), Patrick Lipton Robinson (Jamaica), and James Richard Crawford (Australia), as well as Judge ad hoc Mohammed Bedjaoui, a jurist and diplomat from Algeria chosen by the applicant, given that the permanent members of the Court do not include a Marshall Islands national.
14 In both these cases, Judge Tomka added his vote to the majority.
15 In all three cases, Vice-President Yusuf added his vote to the majority.
16 RMI v. UK, supra note 1, Decl., Abraham, Pres., paras. 3–4.
17 Id., para. 9. In contrast, Judge Cançado Trindade adhered to his earlier opposition on this point, and thus dissented from the judgment. See RMI v. UK, supra note 1, Diss. Op., Cançado Trindade, J., para. 13.
18 RMI v. UK, supra note 1, Decl., Donoghue, J., para. 8.
19 RMI v. UK, supra note 1, Sep. Op., Owada, J., paras. 13, 20 (emphasis in original).
20 RMI v. UK, supra note 1, Decl., Xue, J., para. 4. See also id., Diss. Op., Yusuf, VP, para. 60 (voting against the United Kingdom on the ground that in that case, a “nascent dispute has fully crystallized during the proceedings”). But see RMI v. India, supra note 1, Decl., Yusuf, VP, para. 32; RMI v. Pakistan, supra note 1, Decl., Yusuf, VP, para. 30 (finding no such dispute as to India or Pakistan).
21 Decl., Xue, J., supra note 20, paras. 5–7.
22 Id., para. 8. In similar vein, Judge Tomka wrote that “the absence of other nuclear powers in the proceedings prevents the Court from considering the Marshall Islands’ claims in their proper multilateral context, … ” and concluded the application was inadmissible. RMI v. UK, supra note 1, Sep. Op., Tomka, J, para. 41.
23 Decl., supra note 20, paras. 9–16; RMI v. UK, supra note 1, Decl., Gaja, J.; RMI v. UK, supra note 1, Sep. Op., Bhandari, J., paras. 1, 16–24 (providing as well an extended discussion of India's conduct).
24 See RMI v. UK, supra note 1, Diss. Op., Crawford, J., para. 1.
25 Sep. Op., Tomka, J., supra note 22, paras. 3, 18.
26 RMI v. UK, supra note 1, Diss. Op., Bedjaoui, J., para. 1 (translation from French original by this author).
27 See Diss. Op., Cançado Trindade, J., supra note 17, para. 27; RMI v. UK, supra note 1, Diss. Op., Robinson, J., para. 70.
28 See Declarations Recognizing the Jurisdiction of the Court as Compulsory, United Kingdom of Great Britain and Northern Ireland (Feb. 22, 2017), at http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3&code=GB. See also Sir Alan Duncan, Minister of State for Foreign and Commonwealth Affairs, Amendments to the UK's Optional Clause Declaration to the International Court of Justice: Written Statement – HCWS489 (Feb. 23, 2017), at https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2017-02-23/HCWS489.
29 Sep. Op., Owada, J., supra note 19, para. 2.
30 Guillaume, Gilbert, The Use of Precedent by International Judges and Arbitrators, 2 J. Int'l Dispute Settlement 5, 6–12 (2011)Google Scholar (citing, inter alia, Article 38 of the Court's Statute).
31 PCIJ, Series C: Acts and Documents Relating to Judgments and Advisory Opinions Given by the Court/Pleadings, Oral Arguments and Documents—Speeches Made and Documents Read Before the Court, No. 7-I, at 18 (translation of President Max Huber's original French version by this author), quoted in Mohamed Shahabuddeen, Precedent in the World Court 6 (1996).
32 Malcolm N. Shaw QC, II Rosenne's Law and Practice of the International Court: 1920–2015, at 528 (5th ed. 2016).
33 See id. at 530–31 (discussing Court decisions that adopted a looser construction of the timing requirement, in part in the interest of judicial efficiency).
34 See Legality of the Use by a State of Nuclear Weapons in Armed Conflict, supra note 4, 66 (at the request of the World Health Organization), 226 (at the request of the UN General Assembly).