Marshall Islands v India

• Jurisdiction: Derecho Internacional
• Judge: Tomka,Yusuf,Sebutinde,Donoghue,Robinson,Xue,Crawford,Abraham,Greenwood,Bhandari,Gevorgian,Cançado Trindade,Gaja,Bennouna,Bedjaoui,Owada
• Date: 05 October 2016
• Court: International Court of Justice

International Court of Justice

Jurisdiction and Admissibility.

(Abraham, President; Yusuf, Vice-President; Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue, Gaja, Sebutinde, Bhandari, Robinson, Crawford and Gevorgian, Judges; Bedjaoui, Judge ad hoc2)

Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament

(Marshall Islands

and

India)1

International Court of Justice — Jurisdiction — Dispute — Existence of a dispute as a condition for jurisdiction — Determination of existence of a dispute — Whether notification of claims necessary — Whether knowledge, actual or constructive, of the dispute by respondent necessary — Whether knowledge can be inferred from applicant's general statements made in multilateral fora

Treaties — Application — Nuclear Non-Proliferation Treaty, 1968 — Compliance with Article VI on obligation to negotiate in good faith to cease the nuclear arms race and pursue disarmament — Whether Article VI an obligation of conduct or result — Whether failure to pursue negotiations a breach of Article VI — Whether Article VI reflecting customary international law

Sources of international law — Customary law — Whether obligation to negotiate and pursue disarmament part of customary law — Whether obligation of conduct or result — Whether failure to pursue negotiations a breach of customary law — Whether measures to improve nuclear weapons system and maintain it for indefinite future a breach of customary law

International organizations — United Nations — International disarmament as UN's central concern — Efforts in organization to pursue and achieve international disarmament — Efforts in organization to pursue and achieve nuclear disarmament — Marshall Islands as location of repeated nuclear weapons testing in 1946–58

War and armed conflict — Weapons — Nuclear weapons — Nuclear disarmament — Whether States under an obligation to pursue negotiations and achieve nuclear disarmament

Summary:3The facts:—On 24 April 2014, the Republic of the Marshall Islands filed an application commencing proceedings against India. In its application, the Marshall Islands maintained that India was in breach of customary international law obligations regarding the duty to negotiate in good faith to cease the nuclear arms race and pursue nuclear disarmament. The Marshall Islands maintained that the Court possessed jurisdiction by virtue of the two States' declarations under Article 36(2) of the Statute of the Court.4

On the same date, the Marshall Islands filed similar applications against China, the Democratic People's Republic of Korea, France, Israel, Pakistan, the Russian Federation, the United Kingdom and the United States of America. With regard to Pakistan and the United Kingdom, the Marshall Islands also sought to found the jurisdiction of the Court on declarations made under Article 36(2) of the Statute of the Court. With regard to the other six States, the Marshall Islands invited them to accept the jurisdiction of the Court as envisaged in Article 36(5) of the Statute. The proceedings against Pakistan and the United Kingdom were heard at the same time as those against India.5 China, the Democratic People's Republic of Korea, France, Israel, the Russian Federation and the United States of America did not accept the invitation to accept the jurisdiction of the Court and, in

accordance with the Court's normal practice, the cases against them were not entered on the Court's General List.

India was not a party to the Treaty on the Non-Proliferation of Nuclear Weapons, 1968 (“the NPT”).6 The Marshall Islands maintained, however, that the obligation to pursue negotiations in good faith in order to achieve nuclear disarmament was part of customary international law and, as such, binding on all States irrespective of whether they were parties to the NPT. In the wake of the Court's Advisory Opinion of 1996 on Legality of the Threat or Use of Nuclear Weapons,7 the General Assembly of the United Nations, in resolution 51/45M, called upon all States immediately to commence “multilateral negotiations in 1997 leading to an early conclusion of a nuclear-weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination”. A similar resolution was adopted in each successive year.

According to the Marshall Islands, India had violated its customary international law obligation by failing to engage in good faith in negotiations to achieve nuclear disarmament and by developing its own nuclear weapons arsenal. It requested that the Court find that India had violated its obligations and order India to take all steps necessary to comply with its obligations.8 In advancing its claim, the Marshall Islands made particular reference to the fact that its territory had been used for nuclear weapons testing between 1946 and 1958, when it had been a trust territory.

India raised four preliminary objections to the jurisdiction of the Court or the admissibility of the application. First, India argued that the Marshall Islands had failed to establish the existence of a legal dispute between itself and India at the time of the filing of the application. Secondly, India maintained that the Court lacked jurisdiction on account of the absence from the proceedings of indispensable parties, in particular the other States possessing nuclear weapons. Thirdly, India submitted that jurisdiction was precluded by a number of reservations in its declaration under Article 36(2) of the Statute. Finally, India asserted that, even if the Court had jurisdiction, it should decline to exercise it since a judgment on the merits would serve no legitimate purpose and have no practical consequence.

With regard to the first objection, India contended that for the Court to possess jurisdiction, a legal dispute must have existed between itself and the Marshall Islands at the time of the filing of the application. In particular, India maintained that it had always championed global nuclear disarmament and was the only State possessing nuclear weapons consistently to have voted in favour of the General Assembly resolutions on nuclear disarmament. India

stated that the Marshall Islands had made no attempt to bring its claim to the attention of India before instituting proceedings and maintained that, before seising the Court, the Marshall Islands should at least have initiated negotiations or consultations to define the subject-matter of the dispute.

The Marshall Islands argued that the statements and conduct of the Parties before and after the filing of the application demonstrated the existence of a dispute. It referred in particular to the statements made by its representatives at the General Assembly High-Level Meeting on Nuclear Disarmament on 26 September 2013 and at the Second Conference on the Humanitarian Impact of Nuclear Weapons held in Nayarit (“the Nayarit Conference”) on 13 February 2014 which had also been attended by India. The Marshall Islands also maintained that India's denial, during the course of the proceedings, that it was bound by the obligations cited by the Marshall Islands indicated the existence of a dispute between the Parties. The Marshall Islands denied the existence of any principle of international law which required a State to initiate or exhaust negotiations before seising the Court.

Held:—(1) (by nine votes to seven, Judges Tomka, Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford and Judge ad hoc Bedjaoui dissenting) The Court had no jurisdiction to entertain the claims made in the application (para. 56(1)).

(a) Since the Court had jurisdiction under Article 36 of the Statute only to decide legal disputes between States, the existence of such a dispute was a condition of the Court's jurisdiction. According to the Court's established case law, a dispute was a “disagreement on a point of law or fact, a conflict of legal views or of interests” between parties. The existence of a dispute was a matter of substance, not of form or procedure. Formal diplomatic protests or notice of intention of claims were not necessary conditions for the existence of a dispute or for the seisin of the Court (paras. 33–5).

(b) The existence of a dispute was a matter for objective determination by the Court by reference to facts, including statements or documents exchanged by the parties and statements in public fora, taking particular notice of the author of the statement or document, the intended or actual addressee and its contents. The evidence had to show that the parties held clearly opposing views. That required that evidence demonstrated that the respondent State was aware, or could not have been unaware, that its views were positively opposed by the applicant State. The conduct of the parties, including their silence, was relevant especially where there had been no diplomatic exchanges (paras. 36–8).

(c) The date for the determination of the existence of a dispute was in principle the date on which the application was submitted. Conduct subsequent to the filing of an application might be relevant to confirm the continued existence of a dispute or to clarify its scope, but neither the application, nor the subsequent conduct of the parties could enable the Court to find that the condition of the existence of a dispute had been fulfilled in the same proceedings (paras. 39–40 and 49–50).

(d) The burden of proving the existence of a dispute fell on the applicant State. The fact that the Marshall Islands had been used for nuclear tests, and the suffering which its people had endured as a result, gave the Marshall Islands a special interest in the issue of nuclear disarmament, but that did not remove the need to establish that the conditions for the jurisdiction of the Court were met. It was not necessary that the applicant had given formal notice to the respondent. The...