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.

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.

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.

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.

The Obligations concerning Negotiations Cases and the “Dispute” Requirement in the International Court of Justice

2017 ◽  
Vol 16 (3) ◽  
pp. 373-397
Author(s):  
Ori Pomson
Keyword(s):  
United Kingdom ◽  
Present Article ◽  
Marshall Islands ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court ◽  
The Republic

Abstract In the Obligations concerning Negotiations cases, the International Court of Justice (icj) ruled that it lacked jurisdiction to proceed to the merits since there was no dispute prior to the filing of the application by the Republic of the Marshall Islands (rmi) against the three respondent states – India, Pakistan and the United Kingdom – respectively. The present article considers more closely the basis of the requirement that a “dispute” exists for the icj to exercise its jurisdiction. It submits that the condition that a “dispute” exists relates to the essence of the Court’s judicial function. It then questions whether the respondent’s awareness of the applicant’s opposition to its views is a requirement for engaging the Court’s judicial function. After answering this question affirmatively, it questions whether reasons of judicial propriety dictate that a dispute must exist prior to the filing of an application. This question is also answered affirmatively.

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.

International Court of Justice

1962 ◽  
Vol 16 (1) ◽  
pp. 217-217 ◽  
Keyword(s):  
United Kingdom ◽  
Time Limit ◽  
International Court Of Justice ◽  
Time Limits ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court ◽  
The Republic ◽  
The Government

Case concerning the Northern Cameroons (Cameroun v. United Kingdom): In an order of July 6, 1961, the International Court of Justice fixed the time limits for the filing of pleadings in the case concerning the Northern Cameroons as follows: for the memorial of the Republic of Cameroun, November 1, 1961; and for the countermemorial of the United Kingdom, March 1, 1962. Subsequently, in an order of November 2, 1961, the Court, in accordance with a request from the agent of the government of the Republic of Cameroun, extended to January 3, 1962, the time limit for the filing of the memorial of the Republic of Cameroun and to May 2, 1962, the time limit for the filing of the countermemorial of the United Kingdom.

International Court of Justice

1952 ◽  
Vol 6 (1) ◽  
pp. 106-107
Keyword(s):  
United Kingdom ◽  
International Law ◽  
Royal Decree ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court

On December 18, 1951 the International Court of Justice delivered its judgment in the fisheries case which had been brought before the Court by the United Kingdom against Norway. By a vote of ten to two the Court established the validity of the Norwegian Royal Decree of 1935 in international law. This reserved to Norway an exclusive fishing zone of four miles based on lines connecting the outermost land points of the jagged coast. Through an eight to four vote the Court sanctioned the Norwegian system of straight baselines and overruled the United Kingdom contention that the four-mile belt should more closely follow coastal contours. This decision ended two years of litigation over a forty-five year controversy.

International Court of Justice

1948 ◽  
Vol 2 (1) ◽  
pp. 117-118
Keyword(s):  
United Kingdom ◽  
Security Council ◽  
British Government ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court

Corfu Channel Case: Following the resolution of the Security Council on April 9, 1947, recommending that the United Kingdom and the Albanian governments should immediately refer the Corfu Channel question to the International Court of Justice, the United Kingdom on May 22, 1947, filed an application with the Registry of the Court instituting proceedings against Albania. By a reply dated July 21, filed July 23, 1947, Albania accepted the jurisdiction of the Court, protesting against the unilateral act of the British government in its application. On December 9, 1947, the Albanian government filed a document entitled “Preliminary Objection”.

Limitations Upon the Judicial Function

1964 ◽  
Vol 58 (2) ◽  
pp. 415-431 ◽  
Author(s):  
Leo Gross
Keyword(s):  
United Kingdom ◽  
International Court Of Justice ◽  
The United Kingdom ◽  
Court Of Justice ◽  
International Court

The case of the Cameroons v. The United Kingdom concerning the Northern Cameroons, described, in a typical understatement, as “almost unique in the annals of international litigation,” has been terminated by a judgment of the International Court of Justice which appears as well to be “almost unique.” In fact, neither the Court nor any of the separate opinions referred to any precedent.

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