Decision of the International Court of Justice in the Nuclear Arms Race Case existence of a legal dispute.
spute. In his Separate Opinion, Judge Owada refers to
The Case
In April 2014, the Republic of the Marshall Islands instituted proceedings
against nine states for their alleged breach of obligations regarding the
cessation of the nuclear arms race and nuclear disarmament. Of these nine
states, three (India, Pakistan and the United Kingdom) had recognized the
compulsory jurisdiction of the ICJ.
The Marshall Islands claimed that the United Kingdom was in breach of Art.
VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which
states that Parties have an obligation to negotiate in good faith “on
effective measures” for the “cessation of the nuclear arms race at an early
date” and nuclear disarmament. It added that India and Pakistan, though
not party to the NPT, were bound by similar obligations as a matter of
customary international law. The NPT is not new for the ICJ. In its Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996), the
Court recognized the importance of Art VI and interpreted it as containing
an “obligation to achieve a precise result – nuclear disarmament in all its
aspects.” In the Marshall Islands cases, the ICJ had an opportunity to
effectuate its prior dictum and revisit its position on nuclear weapons in
light of developments in international law.
The dispute about having a dispute
Respondents converged on four major arguments in their preliminary
objections to the case: i) the non-existence of a legal dispute; ii) the absence
of “indispensable parties” in the proceedings; iii) reservations in their
respective declarations accepting the Court’s jurisdiction; and iv) the lack of
a practical consequence of a judgment on the merits. Pakistan also made an
argument on the Marshall Islands’ lack of standing to pursue the claims.
It was unsurprising that respondents challenged the Court’s jurisdiction. It is
a common litigation strategy, particularly in cases founded on optional
declarations and compromissory clauses. The surprise, instead, was the
reasoning adopted to dismiss the claim: non-existence of a dispute. The ICJ
has well-established jurisprudence on the criteria for determining the
19 Permanent Court of International Justice (PCIJ) and ICJ cases where the
matter has been discussed. For those familiar with the Court’s jurisprudence
on jurisdiction, it is a well-trodden path: start with the Mavrommatis
definition of a dispute as being “a disagreement on a point of law or fact a
conflict of legal views or of interests”, then add that a Party’s claim must be
“positively opposed by the other” (South West Africa cases, 1962), and
finally stress that this is “a matter for objective determination”
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania,
1950). More recently, the ICJ has also clarified that the existence of a
dispute is a matter of substance and not of form (Application of the
International Convention on the Elimination of All Forms of Racial
Discrimination, 2011).
The ICJ went a step further in the present case by introducing a subjective
criterion: the respondent’s awareness of the existence of a disagreement.
This is a major departure from previous case law, which focused solely on
objective criteria. As Vice-President Yusuf points out, “the function of the
Court is to determine the existence of a conflict of legal views on the basis
of the evidence placed before it and not to delve into the consciousness,
perception and other mental processes of States (provided they do possess
such cerebral qualities) in order to find out about their state of awareness”.
He adds that this “formalistic requirement” actually defeats the purpose of
judicial economy, because it requires the applicant to file a new case now
that the respondent is certainly aware of the dispute.
Though the majority does not give a detailed legal reasoning for this change,
it mentions that “awareness” is “reflected in previous decisions of the
Court” and cites two cases to support its view: Alleged Violations of
Sovereign Rights and Maritime Spaces in the Caribbean Sea (2016) and
Application of the International Convention on the Elimination of All Forms
of Racial Discrimination (2011). However, the references of the latter case
do not contain any articulation of subjective awareness as they were
essentially dealing with evidence to prove the existence of a dispute as
traditionally understood by the ICJ – a disagreement on a point of law or
fact with respect to the issue of the proceedings on the date of the
Application (Paragraph 31). The same was true in the former case; the
excerpt relied upon by the majority mentions “the specific circumstances”
of the case and affirms that “[g]iven the public statements made by the
highest representatives of the Parties, Colombia could not have
misunderstood the position of Nicaragua over such differences” (Paragraph
73).
The majority argues that declarations cited by the Marshall Islands to
support its claim are of “general content”, and not directed to the specific
respondents. Hence, they conclude that none of the statements articulate
an alleged breach by each of the respondents “of the obligation enshrined
in Article VI of the NPT”. In the majority’s view, the respondent states could
not be aware that the Marshall Islands were making a claim on their
potential breach of obligations towards nuclear disarmament. Statements
from Marshall Islands’ representatives in multilateral conferences, e.g.,
saying that “States possessing nuclear arsenals are failing to fulfill their legal
obligations,” were not deemed sufficient. Nor was the fact that the parties
held opposite views on the legality of the United Kingdom’s improvement
and extension of its nuclear weapons system sufficient. In fact, regarding
the United Kingdom, the majority disregarded one of the Marshall Island’s
declarations because it was made in a conference on the humanitarian
impact of nuclear weapons at which no British representative was present.
It seems hard to believe that in a globalized world, with easy access of
information, the United Kingdom would not become aware of this
statement.
It is understandable that courts will be cautious about frivolous litigations.
At the same time, they must balance this concern against the international
community’s interest in providing access to justice and promoting the
peaceful settlement of disputes. This is all the more important at the ICJ
given how difficult it is to seize its jurisdiction. After this case, the Court has
shifted from a “tradition of flexibility” (Judge Crawford, dissenting opinion)
to a “formalistic approach” (Judge Cançado Trindade, dissenting opinion),
adding another obstacle to accessing international adjudication.
The ICJ and nuclear weapons
One of the critiques made in the dissenting opinions is that the judgments
failed to give persuasive reasons for departing from the ICJ’s jurisprudence
on the characterization of a dispute. Some might wonder whether the
subject matter of the case played any role in this shift.
The relationship between the ICJ and issues pertaining to nuclear weapons
appears to be marked by firsts. In the Nuclear Test cases (1974), the Court
for the first time gave binding effect to unilateral declarations made outside
of a specific context (e.g., negotiation or litigation).[1] As a consequence,
the ICJ refrained from deciding whether France’s nuclear tests in the South
Pacific Ocean were consistent with international law following French public
declarations stating its intention to abstain from future tests.
Some twenty years later, in another first, the World Court refrained from
providing a definite answer on a crucial aspect of a legal question submitted
to it by the UN General Assembly. In the Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons (1996), the ICJ affirmed that it could
not “conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defense”
(operative paragraph 2E). This controversial statement is the only
declaration on non-liquet to date (i.e., the ICJ implied that there is no
applicable law on the question).
Now, after another two decades, the ICJ again had the opportunity to
decide on issues pertaining to nuclear weapons. And, again, the ICJ evaded
the question. This majority’s novelty in assessing the existence of a dispute
did not pass unnoticed by other judges. As highlighted by Judge Tomka in
his Separate Opinion, “for the first time in almost a century of adjudication
of inter-State disputes in the Peace Palace, the “World” Court (the
Permanent Court of International Justice and the International Court of
Justice) has dismissed a case on the ground that no dispute existed between
the Applicant and the Respondent prior to the filing of the Application
instituting proceedings”.
Just as the Nuclear Tests case is associated with the doctrine on unilateral
declarations, so does the present dispute run the risk of being known solely
for new requirements in determining the existence of a dispute. However, a
more accurate reading might be to see the Marshall Islands cases as another
instance in which the ICJ was asked to address the question of nuclear
disarmament but found new technical arguments to avoid dealing with its
substance.

In an enlightening post about the decision, Nico Krisch points out that six
out of the eight judges who dismissed the case against the UK were
nationals of nuclear weapons States, while the other two were nationals of
countries that benefited from the cooperation of a nuclear weapon State.
Could it then be that the dismissal of the cases resulted not from the
willingness of the majority to reinterpret what a legal dispute is, but rather
from their views on nuclear disarmament?
In 1927, the Committee of the PCIJ, while reviewing its Rules, made a strong
argument on the powerful influence of nationality. In fact, debates as to
whether nationality could influence a judge’s opinion feature prominently in
the travaux preparatoires of the PCIJ Statute. The Procès-Verbaux of the
meetings show that the need for each party to have a national judge on the
bench was extremely controversial.
This controversy continued in the process of creating the ICJ. In the end,
however, the Statute retained the traditional rules on this matter. The ICJ is
composed of a body of independent judges who vow that they will act
impartially and conscientiously. This does not necessarily mean that
nationality will be irrelevant in considering a judge’s position. Previous
empirical research indicated that national and ad hoc judges voted in favor
of their own countries in 80% to 82% of the cases.[2]
Given consistent failed attempts to seize the ICJ on this relevant and urgent
matter, one might question whether international litigation is a viable
strategy for nuclear disarmament. The Marshall Islands judgment provides
insight about the majority’s views on this topic. When tracing the historic
background and role of the United Nations in disarmament, the judgment
enumerates three bodies with “a role in international disarmament efforts”:
the UNGA, the UNSC, and the Military Staff Committee. Notably missing
from this list: the ICJ itself.
Although the foregoing judgments expose serious limitations to addressing
nuclear disarmament at the ICJ, resort to international tribunals could
remain a viable option in the long run. A slightly different composition of
the Court could have led to different results, as the votes were evenly split
both in the 1996 Advisory Opinion (for OP2E) and in the case between the
Marshall Islands and the UK. Nevertheless, international litigation should
not be regarded as the main avenue to secure progress for nuclear
disarmament. Instead, it should be seen as complimentary to multilateral
negotiations. Since the ICJ decision, UN Member States adopted a landmark
resolution to convene a multilateral conference in 2017 to negotiate a
treaty that would prohibit nuclear weapons. This significant step in
multilateral negotiations may have a much more far-reaching impact on
disarmament than bilateral litigation.

In the ICJ’s 1996 Advisory Opinion, the distribution of votes on the most
controversial holding (OP 2E) did not show a clear division between
possessor and non-possessor states. In the view of the ICJ President at the
time, this was “a mark of the independence of the Members of the Court”
(Separate Opinion, Judge Bedjaoui). A reading of the individual opinions
might give a different impression. Nationals of nuclear weapon states
disagreed on the best approach for the Court to deal with the issue, not on
the legality of the use of nuclear weapons.

It might be said that the split in the Court merely reflected divergent views
of States on nuclear disarmament. However, if the ICJ’s composition
proportionally reflected State positions on this matter, the vote would likely
have tended against the legality of nuclear weapons and in favor of effective
disarmament.