By: Maitê de Souza Schmitz
In the period of twenty months that I have served on this Court, I have been privileged to consider the interpretation and application of five treaties in cases before the Court. But I dare say that, were I to examine another fifty treaties in the rest of my term, none would be, by virtue of the existential threat to mankind posed by nuclear weapons, as critically important for the work of the Court and the interests of the international community as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) that is the subject of the Marshall Islands v. United Kingdom case. (Judge Robinson, Dissenting Opinion)
Earlier this month, the International Court of Justice (ICJ) dismissed the cases submitted by the Marshall Islands on the Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. With the narrowest possible majority (8-8, with the President’s casting vote), the ICJ concluded that there was no legal dispute between the Marshall Islands and the United Kingdom. The cases against India and Pakistan, which are not parties to the NPT, had slightly different voting patterns, but the same result and similar arguments and reasoning.
To dismiss the case, the majority departed from the Court’s previous case law on the definition of a legal dispute by introducing a new element to its analysis: the respondent’s “awareness” that “its views were positively opposed by the applicant”. What appears to be a simple technicality has in fact at least two systemic implications. Legally, it raises the bar for accessing the ICJ. Politically, it makes advancing the nuclear disarmament agenda through international litigation more unlikely.
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 existence of a legal dispute. In his Separate Opinion, Judge Owada refers to 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). 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.
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.
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.
* Maitê de Souza Schmitz is a 2017 LL.M. candidate at Harvard Law School and an Article Editor of the Harvard International Law Journal.
 The previous case on unilateral declarations (Eastern Greenland, PCIJ) was specific about declarations made in the context of a negotiation. See also Rubin, Alfred P., The International Legal Effects of Unilateral Declarations. The American Journal of International Law, 1 January 1977, Vol.71(1), pp.1-30. P. 4-7
 SAMORE, William. National Origins v. Impartial Decisions: A Study of World Court Holdings, Chicago-Kent Law Review, v. 34, 1956. p. 193; SUH, Il Ro. Voting Behavior of National Judges in International Courts. American Journal of International Law, v. 63, 1969, p. 224-236. p. 230.