The International Court of Justice (ICJ), while discussing the role played by the United Nations in disarmament, 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 confronted 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 disarmament in 19544 and has repeated its call in subsequent resolutions.5 The ICJ has addressed the issue of nuclear weapons in two prior judgments. In the Nuclear Tests Cases, it refrained from commenting on whether France had acted in contravention of international law by conducting nuclear tests in the South Pacific Ocean.6 In the Legality of the Threat or Use of Nuclear Weapons, it held that ‘[t]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament’ under Article VI of the NPT.7 The then President Mohammad Bedjoui also declared that the obligation ‘has acquired a customary character’.8 However, the ICJ refrained from giving a decisive judgment and held that it cannot ‘conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence’.9 Some commentators have argued that the ICJ has been cautious in its engagement with issues relating to nuclear matters due to its fear of trespassing into ‘political issues’10 and antagonising powerful states.11
In the present case, the ICJ had the opportunity to address questions relating to cessation of the nuclear arms race and nuclear disarmament, including the assertion by the Marshall Islands that the obligation of nuclear disarmament is a part of customary international law.12 However, the ICJ denied its jurisdiction over the case since there was an absence of a legal dispute between the parties. The ICJ held that the respondents were not aware of the existence of a dispute between the parties, hence in absence of such awareness, there cannot be any legal dispute to invoke the ICJ’s jurisdiction.13 It was only Judge Yusuf who sought to distinguish the case against the United Kingdom from the cases against India and Pakistan, observing that the latter states have consistently shown support for nuclear disarmament. Hence, there is no dispute between the Marshall Islands and India and Pakistan respectively.14
The existence of a dispute is a precondition to the jurisdiction of the ICJ.15 Dispute is defined as ‘a disagreement on a point of law or fact, a conflict on legal views or interests’.16 The judgments of the ICJ in the Marshall Islands Cases, marked a departure from its previous jurisprudence since it introduced a subjective element viz the respondent’s awareness of the existence of a disagreement, unlike the objective criteria previously employed.17 The ICJ also took a formalistic approach to assess its jurisdiction, diverging from its prior flexible approach. As pointed out in the separate opinion of Judge Tomka, the cases mark ‘… the first time in almost a century of adjudication of inter-State disputes in the Peace Palace, the “World” Court 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’.18 In this case note, we discuss these departures from the earlier jurisprudence of the ICJ on the question of the existence of a dispute between the parties.
The Marshall Islands was a testing site for nuclear weapons from 1946 to 1958.19 As result of the endured suffering of its people, it has shown special concern regarding nuclear disarmament.20 On 24 April 2014, the Government of the Marshall Islands submitted an application to the ICJ against nine other states, for failing to comply with their obligations under customary international law relating to cessation of the nuclear arms race and of nuclear disarmament.21 The ICJ listed the cases against three states: India, Pakistan and United Kingdom, each of which had made an optional declaration under Article 36, paragraph 2, of the ICJ Statute. Marshall Islands requested the ICJ to order the respondents to take all the required steps to comply with their obligations under customary international law by ceasing the nuclear arms race at an early date and conducting nuclear disarmament within one year of the ICJ’s judgment.22
The respondents contested the jurisdiction of the ICJ over the alleged dispute.23 On 16 June 2014, the ICJ ordered that in light of the circumstances, it was first required to adjudicate on the issue of jurisdiction under Article 79, paragraph 2, of the Rules of the ICJ.24
The Judgment of the ICJ
The majority opinion of the ICJ observed that the existence of a legal dispute is a precondition to its jurisdiction under Article 36, paragraph 2 of the ICJ Statute.25 The respondents argued that there was no dispute between the parties since Marshall Islands had not initiated bilateral negotiations or given prior notice of the claim that formed the subject matter of the application.26 The ICJ held that the respondent does not have to be notified of the applicant’s intention to file a claim for a legal dispute to arise.27
The ICJ, relying on its earlier jurisprudence, held that for a dispute to exist, the parties should hold views in opposition to each other on the question of certain international obligations28 before the application is filed in the ICJ.29 The statements made in multilateral fora may establish such opposing views.30 The ICJ observed that there should be sufficient clarity for the statement’s intended addressee to identify that there is a dispute.31 The Marshall Islands relied on a statement made by its Minister of Foreign affairs on 26 September 2013, at the High-level Meeting of the General Assembly of Nuclear Disarmament, ‘urg[ing] all nuclear weapons states to intensify efforts to address their responsibilities in moving towards an effective and secure environment’.32 The ICJ held that the content of the statement did not mention the failure of the respondents specifically to meet their obligations, but rather called for a general intensification of efforts.33 The statement could not be construed as an allegation against the respondents of a violation of their international obligations.34 The Marshall Islands relied on another statement made at the Nayarit conference on 13 February 2014 that, ‘States possessing nuclear arsenals are failing to fulfil their legal obligations’.35 The ICJ held that the statement contained a general criticism of nuclear weapon states, however did not specifically target the respondents’ conduct, giving rise to an alleged violation. The subject matter of the conference was also not on the question of nuclear disarmament. Hence, absence of any reaction from the respondents at the conference with respect to the statement made by the Marshall Islands cannot be inferred as the existence of opposing views on the question of nuclear disarmament.36
The Marshall Islands contended that though the respondents had expressed verbal support for negotiation on nuclear disarmament in international fora, they had maintained and upgraded their nuclear arsenals, which established the existence of a dispute.37 The ICJ observed that the conduct of the parties can indicate the existence of opposing views.38 However, the statements made by the Marshall Islands in multilateral settings had never made the respondents aware of their alleged breach of obligations since it did not offer any specificities regarding the respondents’ conduct. Considering these facts, the conduct of the respondents could not be inferred to give rise to a dispute.39 The dissenting opinions observed that the introduction of the criteria of awareness conflicted with the jurisprudence of the ICJ, as the existence of a dispute is to be determined by an objective assessment.40
The ICJ’s dismissal of the application submitted by Marshall Islands is significant as it is founded on a subjective conception of establishing a legal dispute. The ICJ in determining the existence of a dispute has relied on the respondents’ awareness of the applicant’s positive opposition to its views.41 This section aims to comprehend and examine the aforementioned conception and its politico-legal effects in the development of international law. In doing so, the section examines the awareness test, the jurisprudence on determining a dispute and the impact of the judgment.
The ICJ has substantially diverged from its past jurisprudence, which had demonstrated a consistent approach commencing with the decisions42 of the Permanent Court of International Justice (PICJ) and culminating in recent cases such as Croatia v Serbia.43 As noted in the dissenting opinion of Judge Robinson and the separate opinion of Judge Sebutinde, the aforementioned cases have illustrated a preference for an objective and flexible approach that consciously steers away from procedural firmness and formal rigour.44
In the present case, the ICJ referred to an established understanding of a dispute as ‘a disagreement on a point of law or fact, a conflict of legal views or of interests’.45 While relying on the Nicaragua v Columbia46 case, the ICJ also observed that ‘whether a dispute exists is a matter for objective determination by the ICJ which must turn on an examination of the facts’.47 However, while determining the existence of a dispute between Marshall Islands and the respondent states, the majority of the ICJ introduced a ‘subjective physical criterion’,48 namely the requirement of the respondents being aware that ‘Marshall Islands was making an allegation that India [respondent] was in breach of its obligations’.49 This required Marshall Islands to prove that it has expressed its indictment of the respondents in a particular form, making them aware of the dispute, for instance by explicitly naming them in an international conference.
This is not the first time that the awareness test has been employed by an international dispute resolution body. It was adopted by the Italian-United States Conciliation Commission in the De Curzio case.50 In the De Curzio case, while adjudicating on the issue of jurisdiction, the Commission conceptualized the respondent’s awareness of the dispute as the opportunity to recognise or deny an international obligation.51 If the same standard was applied in the present case, it could have been observed that the respondents had the opportunity to both recognise and deny their international obligations at the High-level Meeting of the General Assembly on Nuclear Disarmament, on 26 September 201352 and at the Nayarit conference on 13 February 2014.53
The ICJ in this case, however, has adopted a relatively restrictive and narrow understanding of the awareness test, when compared with the De Curzio case. This requirement has entrenched the importance of procedure and has made the judicial process comparatively inaccessible. Such procedural firmness and formal rigour was deliberately reduced in the preceding cases. For instance, the ICJ has held that the establishment of a dispute is a question of substance and not a matter of form or procedure.54 However, the requirement of making the respondents aware of the dispute, especially in an individualised bilateral form, is a procedural prerequisite rather than one of substance.55 The ICJ has also held that the prior negotiation is not a sine qua non requirement for the existence of a dispute.56 In the Nicaragua v Colombia case the ICJ held ‘although a formal diplomatic protest may be an important step to bring a claim of one party to the attention of the other, such a formal protest is not a necessary condition’ for the existence of a dispute.57
In the present case the ICJ has obscured the distinction in the aforementioned cases between a procedural lapse and the existence of a dispute. Though the ICJ in the present case clarified that there is no requirement of a notification to the respondent before the filing of the case to establish the existence of a dispute, the novel requirement of the awareness of the respondent of the existence of a dispute prior to filing of the application comes dangerously close to the requirement of a notification.
As highlighted in Judge Tomka’s separate opinion, the ICJ recognises that nuclear disarmament cannot be achieved through unilateral acts of the state and advocates the need for collective action and cooperation.58 However the ICJ refrains from acknowledging the multilateral nature of the issue and continues to construct an understanding of same that falls within the ambit of bilateralism. The ICJ’s focus on bilateral relations fails to consider the changing contours of international law and the growing need to address multilateral issues. The ICJ while addressing the statements made by Marshall Islands in the multilateral fora, held that the statements must address the respondents directly.59
The jurisprudential shift towards multilateralism has been sidelined in the process. The ICJ’s decision in cases such as the South West Africa60 case has emphasised the increasing formulation of disputes in multilateral fora including a plurality of states. Judge Crawford is his dissenting opinion has referred to the same and held that ‘No doubt any multilateral dispute must ultimately be fitted within the bilateral mode of dispute settlement. But this does not require the ICJ to treat the underlying relations as bilateral ab initio’.61
It may be pertinent to note that Judge Tomka and Judge Xue differed from Judge Crawford by remaining reluctant to exercise jurisdiction over multilateral disputes. Judge Tomka considered the nature of the ICJ and its jurisdictional structure as an impediment to adjudicating multilateral disputes.62 Judge Tomka in his separate opinion further stated that the ICJ cannot adjudicate on matters regarding a single state’s conduct in the absence of an explication of ‘the positions taken by the other States with which that State (the Respondent in the case at hand) would need to have negotiated, …in order to achieve the overall goal of nuclear disarmament’.63 Judge Xue adopted a congruent approach, and distinguished the disagreement between non-nuclear weapon states and nuclear weapon states from the existence of a dispute.64 On the contrary Judge Crawford construed the aforementioned conceptualisation of a dispute as a limiting principle and aimed to accommodate the multilateral trends within the existing juridical framework.
Judge Crawford further stated that ‘The importance of the South West Africa cases lies in the recognition that a multilateral disagreement can crystallise for adjacent purposes as a series of individual disputes coming within the Statute’.65 Thus in a multilateral forum it seems absurd to address the defendant individually and directly. In the case of Cameroon v Nigeria66 it was held that ‘a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis … [T]he position or the attitude of a party can be established by inference, whatever the professed view of that party’.67 The statements made in the multilateral fora by Marshall Islands considered alongside the subsequent conduct of the parties, clearly establishes a dispute.
The judgment has streamlined a dangerous trend in international law by increasing the threshold for admissibility of a dispute and by crystallising a standard without any legal basis. In the Separate Opinion, Judge Sebutinde stated that the awareness test has increased the evidentiary burden on the applicant and has done so without any jurisprudential or statutory basis.68 This has a catastrophic effect as no guidelines or criteria for establishing the subjective element have been laid down. This also contributes to rendering justice and judicial adjudication inaccessible. While there is a dispute that has unfolded before the ICJ, the ICJ has remained reluctant in addressing it. The judgment acknowledged the suffering the people of Marshall Islands have endured ‘as a result of it being used as a site for extensive nuclear testing programs’ and accepted that Marshall Islands ‘has special reasons for concern about nuclear disarmament’.69 In his dissenting opinion Judge Cancado Trindade stated that ‘in my perception, it unduly creates a difficulty for the very access to justice (by applicants) at international level, in a case on a matter of concern to the whole of humankind. This is most regrettable’.70
Judge Robinson, in his dissent, defined a dispute as ‘a question of the nature and character, determined objectively, of the claim presented to the ICJ. It is not about mandating that an applicant State jump through various hoops suggesting a formal approach before it can appear in the Great Hall of Justice’.71 The formalistic approach of the majority opinion does not merely possess legal consequences. It furthers political hindrances within the international legal regime. The ICJ since the advisory opinion delivered in 1996, 20 years prior to this decision, has failed to foster nuclear disarmament within the international community. The rigid interpretation of the existence of a dispute, focus on bilateralism and the inaccessibility advanced in this case has turned the clock back and has made the enforcement of nuclear disarmament and other pressing international issues onerous.
Andrea Bianchi has suggested that the ICJ’s adoption of formalist reasoning is indicative of its structural bias, and the judges’ choice of reasoning merely gives the face of neutrality to an otherwise biased outcome.72 She elucidates that the bias results from the ‘government-lawyering mindset’ of the judges, since most of them have previously acted as government counsel, diplomats or agents of the state. Such a mindset seeks to preserve the state-centric power structure of international law rather than addressing injustices to the people, in this case the inhabitants of Marshall Islands.73 Galindo has argued that the ICJ has often employed formalist reasoning to defeat the claims of less powerful smaller states, despite the strong jurisprudential basis of such claims.74 However, the authors believe that international law still remains a tool of resistance in the hands of weaker states, as evidenced by Marshall Islands’ decision to use litigation as a strategy to bring light to the issue of nuclear disarmament. The power relations are unequal, however ‘resistance comes first, and resistance remains superior to the forces of the process; power relations are obliged to change with the resistance’.75