November 17, 2016
The UN’s highest court has narrowly thrown out a landmark case brought by the Marshall Islands against the United Kingdom, Pakistan and India, claiming that they have failed to negotiate in good faith towards nuclear disarmament under Article VI of the Non-Proliferation Treaty of 1968. The International Court of Justice (ICJ) ruled at the preliminary stage that there was no dispute, and, in doing so, closed the Court’s doors, sidestepping the opportunity to address substantive questions surrounding the use of nuclear weapons.
Questions surrounding nuclear weapons do not lend themselves to easy answers. International law is caught somewhere in the middle between the realities of power politics and conceptions of what the world should look like. In 1996 the ICJ gave an Advisory Opinion on the legality of the use of nuclear weapons and it concluded that there was no international law that either authorized or prohibited their use. It was a controversial outcome for the ICJ to say that there was no law at that moment to apply to the question it was asked. However, the Court’s conclusion may have been correct. If it had given a definitive answer in the Advisory Opinion, it would have been entering into a technical and political discourse beyond its role.
In reaching its conclusion to dismiss the Marshall Islands case, the Court determined that, to constitute a dispute, the respondent must be aware that the claimant positively opposed its views. Disputes have taken on a whole new meaning and role after this judgment. In addition to the respondent having some sort of objective awareness of the dispute, the Court went on to add that even if the dispute crystallizes during proceedings, this can’t cure the initial defect. The Court’s highly formalistic reasoning, which stretches what a dispute constitutes, may worryingly allow the Court to engage in strategic maneuvering.
For the majority, this requirement was purely a continuation from existing ICJ jurisprudence, but for the dissenters, it marked a significant departure. As Judge Crawford states at paragraph 1 of his dissenting opinion:
This is the first time that the International Court of Justice (or its predecessor) has rejected a case outright on the ground that there was no dispute at the time the Application was lodged. In determining whether there was then a dispute, the Judgment imposes a new requirement of “objective awareness,” which I shall use as a shorthand for the rather awkward phrase “aware, or could not have been unaware” (Judgment, paragraph 41). But a requirement of objective awareness is not to be found in the case law of the Court. The established test for a dispute does not require a high formal threshold to be met, nor an analysis of that indefinite object, the state of mind of a State. It simply requires, as the Permanent Court put it early on, a “conflict of legal views or of interests.”
One case Crawford goes on to refer to is Croatia v. Serbia. In that case the ICJ at page 438, paragraph 81 stated, “this court has shown realism and flexibility in certain situations in which the conditions governing the Court’s jurisdiction were not fully satisfied when proceedings were initiated but were subsequently satisfied, before the Court ruled on its jurisdiction.” The Court in the present case discarded this tradition of flexibility and treated the question of a dispute as fatal to the case. It is unclear what the rationale of such a strict application of the principle serves, especially given that the case can be brought again at a later date when it has turned into a dispute.
During the proceedings, the Marshall Islands produced statements from diplomatic conferences where they expressed concerns regarding negotiations with nuclear weapons states. However, the Court dismissed these statements as insufficient. According to the Court, they failed to point to the particular conduct of the UK that gave rise to the breach because the statements were delivered in a context not strictly related to nuclear disarmament and did not name the opposing states. Yet, in dismissing the statements, the Court seems to miss the obvious: the UK is a nuclear weapons state and has publicly acknowledged it has such weapons. What more was needed in the case to show the existence of a dispute? Or rather, why was more needed?
The ICJ is a vulnerable court and finds it increasingly difficult to confront great powers. At a time when states are increasingly dissatisfied with the Non-Proliferation Treaty, the Court’s decision not to pressure states into negotiating towards disarmament must be seen as a way to appease certain states and dismiss others. We cannot know exactly why the judges by the slimmest majority denied the Marshall Islands case. However, a look at the majority may give an indication. It comprises the nuclear weapons states and those who benefit from the protection they offer. A coincidence?
So, it would seem the UK is safe for now thanks to the ICJ’s decision. In anticipation of the Marshall Islands case, the UK modified its acceptance of the ICJ’s jurisdiction so as to exclude disputes that are “substantially the same as a dispute previously submitted to the Court by the same or another Party.” Perhaps then the ICJ’s decision was a safe one, as it did not push away the few remaining powerful states that accept its jurisdiction. However, such deference to powerful states risks damaging the reputation of the Court.
Given that the debate on nuclear disarmament is more alive than ever, it won’t be long before another question arrives at the ICJ and it is forced to open its doors. While the ICJ’s role is not to enter into political discourse, the Marshall Islands case suggests that the Court is grappling over its role. The Court should remember that it is designed to be an impartial institution available to small countries like the Marshall Islands to raise legal challenges.
Amy Angilley is a masters student of law at the London School of Economics.
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