Nuclear Disarmament Reappears at the International Court of Justice

The politics of nuclear disarmament have, in recent times, simmered as a threat to the international order, enlivened every so often by a new round of talks or a major push for reform. On rare occasions, the issue has spilled into the international legal sphere. Last month, the re-emergence of the nuclear issue in international law came at the hands of the Marshall Islands, as the International Court of Justice (“ICJ”) delivered its judgment on three legal claims filed separately by the small Pacific island nation against the United Kingdom, India and Pakistan.

In a landmark claim, the Marshall Islands contended that the UK, India and Pakistan had not fulfilled their obligations under customary international law. It was argued that their failure to negotiate in good faith towards nuclear disarmament was a breach of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”).

Although the Marshall Islands initially filed applications at the ICJ against all nine states possessing nuclear arsenals (the United States, United Kingdom, France, Russia, China, India, Pakistan, North Korea and Israel), the only applications to reach further proceedings related to the three respondent nations that recognise the Court’s jurisdiction on the matter.

While the UK is a party to the NPT, India and Pakistan are not. The Marshall Islands argued, however, that the principle of disarmament, and particularly Article VI of the NPT, could sufficiently be considered customary international law, noting the ICJ’s own statement in its advisory opinion of 1996 that there exists an “obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

While at first instance the Marshall Islands is an unexpected litigant, the history of the small nation reveals its particular interest in nuclear disarmament. After its occupation by the United States during World War II, the Marshall Islands was placed in 1947 by the United Nations into the Trust Territory of the Pacific Islands, to be administered by the USA.

Between 1946 and 1958, the USA went on to test 67 nuclear weapons at the Marshall Islands’ Bikini and Enewetak Atolls. As a result, residents of the affected atolls were required to evacuate and resettle from ancestral lands that were rendered inhabitable, and thousands were exposed to radioactive material. The Marshall Islands has since been a vocal advocate for nuclear disarmament in international forums.

In filing its 2014 claims at the ICJ, the Marshall Islands contended primarily that the respondent nations were in breach of international law as they still maintain and continuously modernise their nuclear arsenals, have not pursued comprehensive nuclear disarmament or any other measures to cease the nuclear arms race, and have “opposed the efforts of the great majority of States” to initiate good faith negotiations leading to nuclear disarmament. The Marshall Islands sought a declaratory judgment of breach of obligations relating to nuclear disarmament, and an order from the Court that the respondent nations take all steps necessary to comply with those obligations within one year of the judgment.

Despite considerable anticipation of the outcome of the cases and the possibility of a ground-breaking precedent, the ICJ adopted an expectedly conservative approach, in line with its previous statements on the issue. In its parallel judgments of 5 October 2016, the Court accepted the arguments of the respondents that there was no evidence of the existence of a legal dispute between the Marshall Islands and the UK, India and Pakistan respectively. The Court maintained its previous position on the existence of a legal dispute; it held that statements made by the Marshall Islands and the respondent nations in multinational forums (such as the United Nations General Assembly) on the subject of nuclear disarmament did not sufficiently evidence the existence of a legal dispute where no bilateral diplomatic exchanges or official communications from the Marshall Islands to the respondent nations could be shown providing notice of a breach of international legal obligations. The Court dismissed the three cases, ruling that without the existence of a legal dispute, it did not have jurisdiction to hear the cases on their merits.

While the judgment may be seen by some as a disappointing missed opportunity for significant jurisprudence on a critical international political and legal issue, the deflection by the ICJ of merits-based judgment in this case was characteristic of its hesitancy to definitively rule on sensitive politico-legal issues that come before it. It also raised process questions as to the Marshall Islands’ exhaustion of other avenues prior to the filing of its claims.

Observers may take heart, however, at the Court’s reaffirmation of its 1996 statement of the existence of an obligation to pursue in good faith and conclude negotiations on nuclear disarmament. While the Marshall Islands cases have not provided an opportunity for international law to significantly advance towards a stronger position on nuclear disarmament, it is nonetheless reassuring that this has not been an opportunity to regress.