International Obligations Concerning Disarmament and the Cessation of the Nuclear Arms Race: Justiciability over Justice in the Marshall Islands Cases at the International Court of Justice

2019 ◽  
Vol 24 (3) ◽  
pp. 449-472
Author(s):  
Jonathan Black-Branch
Keyword(s):  
International Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Sufficient Evidence ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Nuclear Arms Race ◽  
The Uk

Abstract The International Court of Justice rulings in cases from the Marshall Islands against India, Pakistan and the UK not only failed to answer important questions regarding obligations to negotiate a nuclear cessation treaty and to disarm, but also raise new questions relating to the existence of a dispute under general international law. The Respondents objected to the Court’s jurisdiction to hear the case on the grounds that there was no justiciable dispute between them and the Marshall Islands, arguing that the issues should not be adjudicated within this forum. The Court agreed, finding there was not sufficient evidence of a dispute, per se, and consequently did not have jurisdiction to hear these cases on their merits as the Respondents were not aware of contentious issues. In the case of the UK, in particular, it was decided by a narrow majority, raising important questions about the Court’s strictly formalistic, and more importantly, unprecedented, approach regarding the existence of a dispute under international law. More significantly, the ruling avoided answering important questions relating to long-standing international obligations regarding disarmament and negotiations toward a treaty to cease the arms race pursuant to Article VI of the Nuclear Non-Proliferation Treaty, 1968. This article provides an overview and analysis of the Marshall Islands cases, examining the main legal issues and arguments, focusing on the Court’s reasoning and highlighting the division within the Court on substantive matters pertaining to obligations of nuclear-armed states.

MULTILATERAL DISPUTES IN BILATERAL SETTINGS: INTERNATIONAL PRACTICE LAGS BEHIND THEORY

2017 ◽  
Vol 76 (01) ◽  
pp. 1-4
Author(s):  
Federica I. Paddeu
Keyword(s):  
Arms Race ◽  
Marshall Islands ◽  
Customary Law ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race ◽  
The Uk ◽  
Nuclear Arms

ON 5 October 2016, the International Court of Justice handed down its decision in the three parallel proceedings involving the Marshall Islands (as applicant) and India, Pakistan and the UK (as respondents): Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India). The Marshall Islands claimed that the respondent states had failed to meet their obligation to negotiate the cessation of the nuclear arms race and nuclear disarmament in good faith, either under Article VI of the Non-Proliferation Treaty (claim against the UK) and/or customary law (against all three respondents). All three respondents formulated objections to jurisdiction and admissibility. In all three cases, they objected that a “dispute” did not exist between them and the applicant. The Court, by a narrow majority (extremely narrow in the case against the UK: by the casting vote of the President), declined to exercise jurisdiction on the basis that no dispute existed between the parties.

Functional Justiciability and the Existence of a Dispute: A Means of Jurisdictional Avoidance?

2019 ◽  
Vol 10 (4) ◽  
pp. 599-621
Author(s):  
Manuel Casas
Keyword(s):  
National Security ◽  
International Law ◽  
Arms Race ◽  
Nuclear Disarmament ◽  
Private International Law ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race ◽  
International Adjudication

Abstract In the recent Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament string of cases the International Court of Justice declined jurisdiction by holding that there was no dispute between the parties. This Article examines the Court’s treatment of the existence of a dispute (‘EoD’) jurisdictional objection; it does not purport to analyze the Court’s broader reliance on jurisdictional doctrines as a general means of avoiding cases. From a doctrinal perspective, this Article argues that the Court's interpretation of the EoD objection in those cases is unpersuasive. Instead, the Article contends that the Court has relied on the existence of a dispute objection as a covert or functional justiciability doctrine. That is, as a ground for discretionarily declining jurisdiction or, to borrow a term from private international law, as an escape device. The Article considers that such jurisdictional avoidance may be normatively justified as a form of principled avoidance. Normatively, the decision to rely on a procedural technicality to avoid going into the merits of a potentially explosive case may be seen as a valid exercise of judicial self-restraint—something that can aid the Court navigate the tensions created by increased skepticism of international adjudication. And policy-wise, avoiding a case on a sensible subject-matter, that touches on core aspects of defense and national security, could be accepted as a way of side-stepping potential backlash.

scholarly journals Nuclear Weapons Before the International Court of Justice: A Critique of the Marshall Islands v United Kingdom Decision

2018 ◽  
Vol 49 (1) ◽  
pp. 53
Author(s):  
Devesh Awmee
Keyword(s):  
United Kingdom ◽  
Nuclear Weapons ◽  
Arms Race ◽  
Marshall Islands ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race

The International Court of Justice recently gave judgment in Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament. The case concerned three parallel claims brought by the Marshall Islands against India, Pakistan and the United Kingdom for their alleged failure to fulfil obligations concerning negotiations relating to the cessation of the nuclear arms race and nuclear disarmament under art VI of the Non-Proliferation Treaty and customary international law. The Court in all three proceedings dismissed the claims at the preliminary objections phase on the sole ground that a legal dispute did not exist between the parties. In determining whether a legal dispute existed, the Court appears to have deviated from the objective determination taken in its previous jurisprudence by introducing, for the first time, a new requirement of "awareness". The Court also failed to address the other preliminary objections brought by the United Kingdom such as the Monetary Gold principle, which appears to have been a more credible avenue for the Court to dismiss the case. The case illustrates the failure by the Court to yet again confront the issue of nuclear weapons.

scholarly journals On Form, Substance, and Equality Between States

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 75-80 ◽  
Author(s):  
George R. B. Galindo
Keyword(s):  
Case Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
Nuclear Arms Race

The International Court of Justice (ICJ)’s 2016 judgments on the three cases Obligations concerning negotiations relating to cessation of the nuclear arms race and to nuclear disarmament show the omnipresence of the dichotomy between form and substance in the Court's case-law. Commentators and several dissenting judges have stressed that the judgments represent a landmark in the sense that the Court has radically departed from the consideration of flexible standards in applying procedural rules to the determination of the issue of identification of a legal dispute. In other words, it made form prevail over substance.

scholarly journals State Instigation in International Law: A General Principle Transposed

2019 ◽  
Vol 30 (2) ◽  
pp. 391-414
Author(s):  
Miles Jackson
Keyword(s):  
Comparative Analysis ◽  
International Law ◽  
General Principle ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Comparative Survey ◽  
International Legal System ◽  
Domestic Law

Abstract It is widely believed that international law imposes no general prohibition on instigation – no general prohibition on states inducing, inciting or procuring other states to breach their international obligations. The absence of a prohibition on instigation stands in contrast to the now entrenched prohibition on the provision of assistance to another state that facilitates an internationally wrongful act. In this article, I argue that the orthodox position on instigation is incorrect. I argue that a prohibition on instigation is founded on a general principle of law, as envisaged in Article 38(1)(c) of the Statute of the International Court of Justice, and that it would be appropriate to transpose that general principle to the international legal system. To sustain this argument, I first construct a representative set of domestic jurisdictions for comparative analysis. Second, through a brief comparative survey, I assess whether in each of these domestic jurisdictions it is wrongful, in one way or another, for an actor to instigate another to commit an act that it would be wrongful for it to do itself. And, third, I argue that the transposition of this principle from domestic law to international law is conceptually and normatively appropriate.

The End of the Road for the Prince? Sixty Years after the Czechoslovak Confiscation of Liechtenstein Property

2006 ◽  
Vol 19 (2) ◽  
pp. 441-458
Author(s):  
BART DELMARTINO
Keyword(s):  
Human Rights ◽  
International Law ◽  
The Other ◽  
Nazi Germany ◽  
International Court Of Justice ◽  
The Road ◽  
Court Of Justice ◽  
European Court ◽  
International Court ◽  
International Obligations

In 1945 Czechoslovakia confiscated Liechtenstein property as reparation for the damage done by Nazi Germany. Private claims failed before the courts of Czechoslovakia, and international law did not provide Liechtenstein with a means of action against Czechoslovakia. When the property was on loan in Germany, a private case for recovery was declared inadmissible by the German courts, in line with Germany's international obligations. The European Court of Human Rights accepted these decisions. Liechtenstein, on the other hand, considered them to violate its sovereignty. In 2005, the International Court of Justice decided that it lacked temporal jurisdiction to rule on the issue.

scholarly journals INTERPRETASI INTERNATIONAL COURT of JUSTICE (ICJ) PADA PASAL VI PERJANJIAN NON-PROLIFERATION TREATY 1968 (NPT)

Arena Hukum ◽  
2021 ◽  
Vol 14 (2) ◽  
pp. 349-367
Author(s):  
Taufik Nugraha
Keyword(s):  
Soviet Union ◽  
Nuclear Weapon ◽  
Arms Race ◽  
International Court Of Justice ◽  
Early Date ◽  
Court Of Justice ◽  
Nuclear Weapon State ◽  
The Soviet Union ◽  
International Court ◽  
Nuclear Arms Race

It has been 50 years since the Non-Proliferation Treaty was made by America, England, and the Soviet Union to prevent the nuclear arms race in the future. However, Article VI of NPT consisted of ambiguity and has sparked long-lasting debate questioning NPT electiveness. Article VI at least has been examining twice by the International Court of Justice (ICJ) in 1996 and 2014. Unfortunately, those examinations were unsatisfied regarding when Nuclear Weapon State (NWS) should cease and disarmament their nuclear weapon? If referring to “an early date,” it should be done years long ago and not taking more than 50 years with pathetic achievement. Finally, this article will examine the current development of NWS using a normative juridical method according to existing nuclear regulation, ICJ Commentary, which resulting in a suggestion when NPT 1968 parties should fulfil their obligation under Art VI NPT 1968.

Deconstructing Dud Disarmament Disputes

2020 ◽  
Author(s):  
James D Fry ◽  
Saroj Nair
Keyword(s):  
Nuclear Weapon ◽  
Marshall Islands ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Uk

Abstract This Article explores the limits of judicial settlement of nuclear-weapon disputes through a case study of the Marshall Islands’ cases against India, Pakistan and the UK before the International Court of Justice in 2016. It posits that judicial settlement is limited mainly by the quality of the arguments and evidence submitted by the disputants, not by any limitations inherent in judicial settlement with such politically sensitive disputes. The lawyers in the Marshall Islands’ cases should have taken greater care in crafting their arguments and in tying them explicitly to Article VI of the Nuclear Non-Proliferation Treaty and its customary equivalent.

Obligations erga omnes and the question of standing before the International Court of Justice

2021 ◽  
pp. 1-21
Author(s):  
Priya Urs
Keyword(s):  
International Law ◽  
International Community ◽  
Genocide Convention ◽  
International Court Of Justice ◽  
Collective Interest ◽  
Progressive Development ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Issue Attention

Abstract A number of states have in recent years sought to invoke the responsibility of other states for breaches of their international obligations erga omnes. Their contention is that these obligations are not owed to them bilaterally but in the collective interest, whether as states parties to multilateral treaties or as members of the international community as a whole. This growing interest in the invocation of responsibility for breaches of obligations erga omnes is discussed primarily in relation to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts. The Articles being a statement of principle, and indeed, a progressive development of the law on the issue, attention must also be paid to the decisions and dicta of the International Court of Justice. Of particular interest, and the focus of this article, is the question of a state’s standing to institute proceedings before the Court to invoke responsibility for the breach of an obligation erga omnes even in the absence of any injury on its part. The most recent manifestation of this position is The Gambia’s institution in 2019 of proceedings against Myanmar, solely on the basis that all states parties to the Genocide Convention have a legal interest in compliance with the obligations therein. By scrutinizing the practice of the Court to date, the article examines the limits and consequences of an expansive right of standing for states seeking to enforce obligations erga omnes at the Court.

Studying Country-Specific Engagements with the International Court of Justice

2019 ◽  
Vol 10 (4) ◽  
pp. 582-598
Author(s):  
Margaret A Young ◽  
Emma Nyhan ◽  
Hilary Charlesworth
Keyword(s):  
International Law ◽  
Legal Doctrine ◽  
International Court Of Justice ◽  
Institutional Practice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj ◽  
The Usa ◽  
The Uk ◽  
Country Specific

Abstract Countries engage with the International Court of Justice (ICJ) as litigants, as participants in advisory proceedings and, less directly, through contributions of nationals as judges or lawyers. A broad range of scholarship within the discipline of public international law examines this engagement. Specific regional experiences are often emphasized and grouped, for example, by western, African or Asian accounts. Yet the nature and extent of scholarship on a single country’s engagement with the Court are less commonly explored. This article surveys scholarly approaches to specific domestic engagement with the ICJ. It focuses on six countries—Australia, France, Nicaragua, Russia, the UK and the USA—and examines the scholarship generated by each of these countries’ encounters with the Court. This scholarship provides insights into politics, history, institutional practice, professional experience and international legal doctrine. Preliminary in scope, the article points to the value of empirical, historical and country-specific accounts of the work of the ICJ.

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