Marshall Islands v. United Kingdom, India and Pakistan

By Sergei Golubok, Dr.jur., Member of the Scientific Board of SLND/SAFNA, Partner, Double Bridge Law, St. Petersburg.

            In March 2016 the International Court of Justice held hearings on preliminary objections in the cases lodged by the Marshall Islands regarding negotiations relating to cessation of the nuclear arms race and to nuclear disarmament.

            The applicant alleges that the respondents, States that possess nuclear weapons, violated their international obligations by failing to pursue negotiations leading to nuclear disarmament (in particular, under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as interpreted by the International Court of Justice in its 8 July 1996 Advisory Opinion) and by building up their nuclear forces.

            All respondents raised preliminary objections regarding jurisdiction of the Court to examine the cases brought by the Marshall Islands and admissibility of the applications.

            First of all, according to the respondents, no relevant legal dispute existed between them and the Marshall Islands before filing of the applications with the Court. Marshall Islands never raised the issue before filing their applications with the Court in appropriate international fora, such as NPT Preparatory Committee meetings. Marshall Islands rebutted that the very fact of different positions as expressed in the parties’ pleadings before the Court confirms existence of the dispute between them.

            The respondents asserted that the applicant in fact attempted to obtain a declaratory judgment from the Court (akin to one sought through request for advisory opinion). The other way to put this preliminary objection was to argue that the Court should not proceed in the absence of other essential parties, such as other nuclear States. Marshall Islands highlighted in response that the respondents breached their particular international legal obligations flowing from customary international law and (where applicable, in case of the United Kingdom) NPT, and declaratory judgments sought may constitute appropriate relief under international law.

            Specific preliminary objections were also raised by particular respondents regarding wording and temporal scope of their respective optional declarations recognizing jurisdiction of the Court. It suffices to mention Pakistan’s reliance on the “domestic jurisdiction” reservation in its own declaration excluding disputes “relating to questions which by international law fall exclusively within the domestic jurisdiction of Pakistan” from the jurisdiction of the Court.

            It is of course ultimately for the Court to interpret this clause. One has only to remember the famous pronouncement made by the Court’s predecessor almost a century ago that “[t]he question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations”. The same can be said about the subject-matter of the Marshall Islands’ applications.

            Irrespective of whether the Peace Palace will witness its merits stage this litigation highlights legitimate concerns on the part of many (non-nuclear) States that nuclear disarmament is still beyond the horizon.

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