International Court of Justice, case of obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament (Marshall Islands v United Kingdom, Pakistan and India) (2016).

• Author: Tully, Stephen

I Introduction

In 2014 the Republic of the Marshall Islands (RMI) filed applications against 9 States before the International Court of Justice (the Court or ICJ). No case was entered against China, North Korea, France, Israel, Russia and the United States because none had consented. In October 2016 the Court declared that jurisdiction was lacking in proceedings filed individually against the United Kingdom (UK), Pakistan and India (collectively, the respondents). RMI sought to rely on declarations made under Article 36(2) of the ICJ Statute. The respondents objected that there was no dispute between the parties when RMI's application was filed. The Court by majority agreed. (1) It moreover found by majority that the merits could not be considered. (2) The litigation raised questions of compliance with the obligation to negotiate under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), (3) to which RMI and the UK were parties, and customary international law. This casenote reviews the majority judgment as well as the declarations and separate and dissenting opinions before highlighting key implications from these cases.

II The Majority Judgment

The majority began by reiterating that, for a dispute to exist, the claim of one party must be positively opposed by the other; the two sides must hold clearly opposite views about the performance of international obligations. If not required by the relevant basis of jurisdiction, prior negotiations, formal diplomatic protests or notifying an intention to file were unnecessary.

Whether a dispute existed was a matter of substance, and not form or procedure. It was a matter for objective determination after examining the facts. Any statements or documents exchanged between the parties were considered, with special attention given to the author, addressee, content and conduct.

The existence of a dispute could be inferred from a State's failure to respond to a claim in circumstances where it was called for. The parties must hold clearly opposite views on the issues before the Court. An applicant must demonstrate with evidence that a respondent "was aware, or could not have been unaware," that its views were positively opposed.

A dispute in principle had to exist prior to an application being filed. Subsequent conduct can confirm the existence of a dispute, clarify its subject-matter or determine whether a dispute had disappeared. Statements can give rise to disputes if they refer to the subject-matter of a claim with sufficient clarity to enable the State against which it was made to identify that there is, or may be, a dispute about that subject-matter. But statements made or claims advanced after the date of application cannot create a dispute de novo.

The Court determined whether it had jurisdiction as a legal matter whereas an applicant must demonstrate the facts underlying its case that a dispute existed. The RMI had referred to statements made before multilateral fora before its application was filed. The RMI's Minister for Foreign Affairs had urged nuclear weapons States "to intensify efforts to address their responsibilities in moving towards an effective and secure disarmament". (4) However, this statement was hortatory and did not allege that the respondents had breached their obligations. Nor did it mention the obligation to negotiate or deplore any failure to act.

The RMI had asserted before a multilateral conference that "States possessing nuclear arsenals are failing to fulfil their legal obligations". (5) Although Pakistan and India attended whereas the UK did not, in any event the conference addressed the humanitarian impact of nuclear weapons rather than negotiations towards nuclear disarmament. No opposition of views could be inferred because, although generally criticising nuclear-weapon States, RMI did not specifically impugn the respondents' conduct or call for any specific reaction.

In sum, none of the statements relied on by the RMI supported the existence of a dispute because they did not articulate an alleged breach by the respondents of their obligation under Article VI of the NPT or corresponding customary international law. Taken individually or together, it could not be said that the respondents...