The Nuclear Disarmament Cases: Is Formalistic Rigour in Establishing Jurisdiction Impeding Access to Justice?

• Author: Meenakshi Ramkumar, Aishwarya Singh
• Position: Jindal Global Law School, India/Jindal Global Law School, India
• Pages: 128-134

Meenakshi Ramkumar and Aishwarya Singh, ‘The Nuclear Disarmament

Cases: Is Formalistic Rigour in Establishing Jurisdiction Impeding

Access to Justice?’ (2017) 33(85) Utrecht Journal of International and

European Law pp. 128–134, DOI: https://doi.org/10.5334/ujiel.422

UTRECHT JOURNAL OF

INTERNATIONAL AND EUROPEAN LAW

CASE NOTE

The Nuclear Disarmament Cases: Is Formalistic

Rigour in Establishing Jurisdiction Impeding Access

to Justice?

Meenakshi Ramkumar* and Aishwarya Singh*

Nuclear disarmament falls within the purview of the purposes envisaged in Article 1 of the

United Nations Charter. The International Court of Justice (ICJ) in 1996 delivered an advisory

opinion on legality of use of nuclear weapons and has stated that the states in good faith

must strive towards nuclear disarmament. In the

Marshall Islands Cases

, 20 years later the

ICJ had the opportunity to address questions relating to cessation of the nuclear arms race

and nuclear disarmament. However, the ICJ has failed to foster nuclear disarmament within

the international community. The ICJ dismissed Marshall Islands’ application on jurisdictional

grounds because there was no legal dispute between the parties. The ICJ in determining the

existence of a dispute introduced a subjective

awareness test

. In this case note, we aim to

examine the

awareness test

and its politico-legal eects in the development of international

law. While doing so, we also argue that the test has further rendered the enforcement of

nuclear disarmament obligations arduous.

Keywords: nuclear disarmament; Legal Dispute; International Court of Justice; Nuclear Arms Race;

Jurisdiction

Introduction

The International Court of Justice (ICJ), while discussing the role played by the United Nations in disarma-

ment, identified three bodies having a ‘role in international disarmament efforts’. These bodies are the United

Nations General Assembly (UNGA), the United Nations Security Council and the Military Staff Committee.1 It

was notable that it omitted itself, the ICJ, from the list. The omission came at a time when the ICJ was con-

fronted with a case brought by the Marshall Islands against states holding nuclear arsenal, on the grounds of

violation of the international obligation of nuclear disarmament and cessation of the nuclear race.

Nuclear disarmament falls in line with the purpose of the UN under Article 1 of its Charter.2 Article IV of

the Treaty on Non-Proliferation of Nuclear Weapons (NPT), which has been signed by 191 states, provides

for cessation of nuclear arms race and disarmament.3 The UNGA had called for a convention on nuclear

* Jindal Global Law School, India.

1 Marshall Islands v. United Kingdom (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to

Nuclear Disarmament), Marshall Islands v. Pakistan (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms

Race and to Nuclear Disarmament), and Marshall Islands v. India (Obligations concerning Negotiations relating to Cessation of the

Nuclear Arms Race and to Nuclear Disarmament) [2016] ICJ GL No 158 para 14.

2 Charter of the United Nations (adopted 24 October 1945) 1 UNTS XVI, art 1 states:

‘The Purposes of the United Nations are (1) To maintain international peace and security, and to that end: to take effective

collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression

or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice

and international law, adjustment or settlement of international disputes or situations which might lead to a breach of

the peace….’

3 Treaty on Non-Proliferation of Nuclear Weapons (adopted 1 July 1968, entered into force 5 March 1970) 729 UNTS 161 art 6 states:

‘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.’