The UK Government has inhibited the International Court of Justice (ICJ) from ruling on cases about nuclear weapons or nuclear disarmament, including if it uses Trident against another country.
This change marks a disappointing departure in policy from the Coalition government’s decision to include nuclear matters within its voluntarily recognition of the Court’s jurisdiction as compulsory only two years ago, and will have regressive consequences for legal accountability around the possession or use of nuclear weapons.
The move is designed to prevent the Marshall Islands, which has special reasons for concern about nuclear weapons having been the site of 67 US atomic tests, as well as other frustrated non-nuclear weapon states, from bringing fresh cases against the UK for alleged failure to negotiate on the cessation of the nuclear arms race and nuclear disarmament under customary international law.
Last year, the ICJ – the United Nations court designed to resolve disputes between states – rejected proceedings by the Marshall Islands against the UK, India and Pakistan on the technical grounds that there existed no evidence of a ‘dispute’ between the parties. However, judges only voted this way by a narrow margin, meaning that another attempt was expected.
Nevertheless, far from only stymying this case, the change will prevent any case being brought against the UK in the ICJ regarding nuclear weapons and disarmament. This would include if the UK fires its nuclear weapons, including against a state without them.
In a Written Statement on the 23rd February 2017, The Minister of State for Foreign and Commonwealth Affairs, Sir Alan Duncan, announced the Amendment to the UK’s Optional Clause Declaration, which accepts the compulsory jurisdiction of the Court. It states:
The ICJ case on nuclear disarmament filed by the Marshall Islands against the United Kingdom in 2014 concluded with a judgment of 5 October 2016 that upheld the United Kingdom’s preliminary objections to jurisdiction. We have now decided to build into our Declaration two key elements that underpinned the principal arguments that the Government made in those preliminary objections.
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In addition, the revised Declaration also includes a reservation excluding from the Court’s jurisdiction any cases related to nuclear weapons and/or nuclear disarmament unless the other four Nuclear Non-Proliferation Treaty (NPT) nuclear-weapons States also accept the Court’s jurisdiction with respect to the case. The Government does not believe the United Kingdom’s actions in respect of such weapons and nuclear disarmament can meaningfully be judged in isolation. This amendment to our Declaration provides that the ICJ will only have jurisdiction over nuclear weapons or nuclear disarmament disputes when the proceedings involve all five of the NPT nuclear-weapons States.
We have also made changes to advance the cut-off date for historical cases to 1987, keeping it at thirty years, and to make clear that a repeated claim, as well as a dispute, is also excluded.
The UK Government’s decision would appear to cut off any possibility of the Marshall Islands bringing another case and succeeding, and likely shows that it is not confident that the Court’s decision would be favourable if the substance of the case were discussed.
As an issue of sovereignty, states can choose the extent to which they accept the Court’s jurisdiction according to Article 36(2-5) of the ICJ Statute, meaning the Government’s actions are legal.
Some states choose not to be bound at all, and instead accept jurisdiction on an ad hoc basis. Until now, the UK was the only Nuclear Non-proliferation Treaty (1968) signatory nuclear weapon state (UK, US, France, Russia and China) to have voluntary accepted ICJ compulsory jurisdiction on these matters. Among the other nuclear-armed states, India and Pakistan have accepted jurisdiction but are not NPT signatories, while Israel and the DPRK have accepted neither.
However, by announcing that the ICJ will not have jurisdiction unless proceedings involve all five nuclear weapons states, the UK will be effectively shielded from any legal cases being permissible, as it is highly unlikely that the other NPT states will reverse their positions.
The Government’s quiet amendment has disappointing implications. The NPT was extended indefinitely in 1995, leaving few remaining mechanisms for accountability to ensure that states follow through and disarm within a reasonable time frame. This move will give the non-nuclear weapon states far less leverage to ensure that the UK is following in good faith its legal obligations to disarm.
Plausibly, this would also prevent the UK from having a case brought against it if it used its nuclear weapons in a first strike, even before a declaration of war. And the move will be disappointing for those states that continue to feel the effects of British nuclear testing, such as Australia and Kiribati, for which the Marshall Islands case was a test case.
More crucially, however, it begs the question of what right the UK would have to tell other states to subscribe and adhere to international law and standards around nuclear weapons and nuclear disarmament, if it won’t do so itself. What incentives, for example, do states like North Korea or Israel have to join the legal global governance regimes, which we rely on for our security?
This Amendment will no doubt be noted by other states, and pointedly used to shame the UK for double standards. And indeed they should. The UK is sometimes called a responsible nuclear weapon state, but this is just duck and cover.