Authors: Nina Sofie Pedersen & Sebastian Brixey-Williams
On 5th October, the UN International Court of Justice (ICJ) rejected proceedings made by the Republic of the Marshall Islands against three nuclear-armed states — India, Pakistan and the United Kingdom — for alleged failure to negotiate on the cessation of the nuclear arms race and nuclear disarmament under customary international law.
The Marshall Islands’ claim, initiated in April 2014, is underwritten by the human suffering of the island nation’s people as a result of the 67 nuclear testings conducted by the United States at Bikini Atoll between 1946 and 1958. Its attention to the devastating and catastrophic consequences of nuclear weapons situates it in the wider humanitarian discourse that has invigorated the nuclear disarmament debate in recent years.
While nine claims were made against all states assumed to be in possession of nuclear weapons, the hearings last week concerned the ICJ’s jurisdiction and the admissibility of the Marshall Islands’ application with respect to just the three – the only nuclear-armed powers to recognise the Court’s compulsory jurisdiction.
In normal procedure, the Court had to establish jurisdiction before it could consider the case’s merits, predicated upon the existence of a ‘dispute’ between the parties. Against India, the Marshall Islands brought three arguments: 1) that statements made in certain multilateral fora established the existence of a dispute, 2) that filing proceedings was itself evidence of dispute, and 3) that India’s maintenance and growth of its nuclear arsenal is also evidence.
The test the Court used was that the respondents (the nuclear states) must have been aware, or could not have been unaware, that their actions were ‘positively opposed’ by the applicant (the Marshall Islands). By a slim majority, the Court judged that no dispute existed and that the case could not proceed upon merits. Accordingly, the Marshall Islands were sent home empty handed, before the claim’s substance had been considered.
Vehement disagreement in the Court
The judges disagreed substantially about a number of points of law, and it is instructive to consider the judgement’s implications for future cases about nuclear disarmament. Rather than give a simple ‘declaration’ about their voting decision, judges can also give ‘separate opinions’ when they agree with the Court’s conclusion but for different or additional reasons, while those voting against the majority can give ‘dissenting opinions’, of which several are given in full the case against India. These statements do not carry legal weight, but form jurisprudence on a topic that may have relevance in future disputes.
Several judges regretted that the case ended at a technical stage (determining jurisdiction) without getting to the meat of the debate. Judge Bennouna and ad hoc Judge Bedjaoui accused the Court of excessive formalism, and Judge Cançado Trindade and Judge Robinson were frustrated by the inflexibility of the Court, given the importance of the subject matter. Vice-President of the Court, Judge Yusuf, outlined the limits to the ‘one size fits all-approach’ taken by the Court to all three states; evidence that could be used to determine the level of states’ commitment to nuclear disarmament, such as voting records on UN General Assembly resolutions, cooperation in multilateral fora or the growth of a state’s nuclear stockpile, remained unaccounted for in the evidentiary basis for the Court’s decision.
In addition, not all judges agreed that ‘awareness’ should be the test of whether or not a dispute exists (Judges Yusuf, Cançado Trindade, Sebutinde, Crawford and Bedjaoui). Across the Court’s history, they argue, the existence or otherwise of a dispute had normally been considered an objective matter; the threshold was only recently raised by the introduction of the ‘awareness’ test, in the 2011 judgement of the Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation) case. Though most judges saw this as creating a new, overriding test, others felt that it represented an anomalous deviation from long-accepted practice. It is unclear how this test will fare in future cases, though clearly this judgement adds to precedent.
Judge Cançado Trindade gave a particularly extensive dissenting opinion. Although he is known to be progressive, his estimation that there clearly exists ‘an opinio juris communis as to nuclear disarmament’ in the long list of UN General Assembly resolutions on the subject is noteworthy. Opinio juris is the shared and widespread belief about the legality or illegality of an action, and is one of two principles that must be satisfied in order for the emergence of customary international law (which is binding on all states). At present, international law relating to nuclear weapons is entered into voluntarily (as it is treaty-based), and while customary international law on nuclear disarmament may be some way off, jurisprudence such as this could be another important brick in the wall.
Finally, further consideration might be given to Judge Tomka and Judge Xue’s doubt about whether failures to achieve nuclear disarmament could be meaningfully addressed through bilateral court cases, and whether a multilateral context might be needed. Indeed, even if a single state were found legally liable for failing to disarmament, what effect would that have?
Implications of the Marshall Islands Case
The human dimension of the Marshall Islands’ case gave hope to many in the disarmament community that a favourable ruling from the Court would give the humanitarian approach some added legal legitimacy. Those of this view might find solace in two aspects. First, the merits of the case were not discussed, and if jurisdiction could be proven in future, a court case brought on humanitarian principles might yet prove successful. Second, the Court noted that the Marshall Islands have “special reasons for concern” about nuclear disarmament.This is of interest, because in the formation of customary international law, the practice of states that are ‘specially affected’ must be taken into account. Thus, while the ICJ’s 1996 Advisory Opinion on the Use or Threat of the Use of Nuclear Weapons seemed to envisage specially affected states only as those that possessed nuclear weapons, this new judgement expands that category to include at least some of those that are affected by them. This might pave the way for fresh claims from Japan, Australia, Kazakhstan, and other Pacific nations, to name a few.
Nevertheless, this case’s short life and the Marshall Islands’ inability to bring all the nuclear-armed states to the Court demonstrate the challenges of taking on nuclear powers through a confrontational legal approach. As Krisch notes, the Court’s diminishing ability to stand up to the great powers in recent years may have swayed its judgement as it seeks to save itself from irrelevance. It would be well for those engaged in the global ban movement, which is also accused by nuclear-armed states and their allies as taking a confrontational approach through diplomatic channels, to consider how the lessons from this judgement could be used to enhance their work going forward. While legal approaches have value in disrupting established norms, and may prove successful in their own way, they are not silver bullets and should be considered one key tool in a wider set of disarmament tools.