Marshall Islands v United Kingdom

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

International Court of Justice

Preliminary Objections.

(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

United Kingdom)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 measures to improve nuclear weapons system and maintain it for indefinite future a breach of Article VI

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 the United Kingdom. In its application, the Marshall Islands maintained that the United Kingdom was in breach of treaty and 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, India, Israel, Pakistan, the Russian Federation and the United States of America. With regard to India and Pakistan, 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 India and Pakistan were heard at

the same time as those against the United Kingdom.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.

The Marshall Islands based its claim that the United Kingdom was in breach of its obligations first upon the Treaty on the Non-Proliferation of Nuclear Weapons, 1968 (“the NPT”) and secondly upon customary international law. The NPT sought to limit the proliferation of nuclear weapons. It distinguished between “nuclear-weapon State parties” (China, France, the Russian Federation, the United States of America and the United Kingdom) and all other parties, which it designated as “non-nuclear-weapon State parties”. Article VI of the NPT provided that:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

In its Advisory Opinion of 1996 on Legality of the Threat or Use of Nuclear Weapons,6 the Court observed that “the legal import of that obligation goes beyond that of a mere obligation of conduct” and constituted “an obligation to achieve a precise result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely the pursuit of negotiations on the matter in good faith”.7 In resolution 51/45M of 10 December 1996, the General Assembly of the United Nations underlined that passage in the Court's Opinion and called upon all States “to fulfil that obligation immediately by commencing 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. In total 191 States became party to the NPT. The United Kingdom ratified the NPT in 1968 and the Marshall Islands did so in 1995.

According to the Marshall Islands, the United Kingdom had violated its obligations by failing to engage in good faith in negotiations to achieve nuclear disarmament and by upgrading its own nuclear weapons arsenal. It requested that the United Kingdom be held responsible for these breaches and be ordered to take all necessary steps 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.

The United Kingdom raised five preliminary objections to the jurisdiction of the Court or the admissibility of the application. The first objection was that the Marshall Islands had failed to establish the existence of a justiciable dispute between itself and the United Kingdom prior to the filing of the application. The second and third concerned the wording of the two States' declarations under Article 36(2) of the Statute of the Court. The fourth objection was that the application was inadmissible in the absence from the proceedings of States characterized as essential third parties, notably the other States which possessed nuclear weapons. The final objection was that the Court should decline to exercise jurisdiction because a judgment on the merits would have no practical consequence.

With regard to the first objection, the United Kingdom contended that for the Court to possess jurisdiction, a justiciable dispute must have existed between itself and the Marshall Islands prior to the filing of the application. The United Kingdom also contended that it was a principle of customary international law, reflected in Article 43 of the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts (“the ILC Articles”), that a State intending to invoke the responsibility of another State was required to give notice of its claim to that State.

The Marshall Islands denied that there was a general requirement that a State must give prior notice of a claim to another State before instituting proceedings. It maintained that the existence of a dispute between itself and the United Kingdom was evidenced by the opposing attitudes of the two States with regard to the question of the United Kingdom's compliance with Article VI of the NPT. The Marshall Islands contended that its application and the United Kingdom's response thereto, including the statements which it had made regarding the merits in the course of the hearings, were sufficient to establish the existence of a dispute between them. The Marshall Islands accepted that it had not raised the issue of United Kingdom compliance with Article VI and its customary law obligations regarding nuclear disarmament in bilateral communications with the United Kingdom but argued that, if it was necessary that the dispute had come into existence prior to the filing of the application, the United Kingdom had been made aware of the position of the Marshall Islands by the statement of the latter's representatives in multilateral fora. In that context, the Marshall Islands referred to statements made 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.

Held:—(1) (by eight votes to eight, by the President's casting vote, Vice-President Yusuf, 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. 59(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. 36–8).

(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...