The dispute that wasn't there: judgments in the Nuclear Disarmament cases at the International Court of Justice

Abstract

On 5 October 2016, the International Court of Justice upheld preliminary objections to its jurisdiction in three separate cases relating to nuclear disarmament brought by the Republic of the Marshall Islands. India, Pakistan, and the United Kingdomthe three respondent Statesargued that the absence of a dispute with the Marshall Islands when the cases were filed meant that the Court lacked jurisdiction to consider the claims. In each case, a narrow majority of the Court agreed. These judgments brought to a halt the legal actions mounted by the tiny Marshall Islands against three nuclear powers. They also consolidated a trend in the Court's approach to the determination of whether a dispute exists for the purpose of the exercise of jurisdiction. In addition, the judgments sparked debate over whether individual judges cast their votes in line with the preferences of their home governments or sought to protect the interests of powerful States. This article provides an overview of the proceedings and the parties' claims (Part 2). It then analyses the Court's reasoning with respect to whether a dispute was present (Part 3) and explains how the Court's approach to the 'dispute requirement', a means to protect the judicial function, has taken a wrong turn (Part 4). The article next challenges the proposition that the voting record in the Nuclear Disarmament judgments should be interpreted to support the proposition that judges vote in accordance with national interest (Part 5) before offering some concluding thoughts on the wisdom of the decision by the Marshall Islands to bring these cases, which invoked claims that may not have been amenable to judicial solutions (Part 6).

Practice, evolution and protection of human rights through the International Court of Justice jurisprudence

“…The ICJ has dealt as well as in other cases with the issue of immunity of senior state officials who have committed crimes under international law and as a result we still have a case reported on the violation of human rights. The ICJ reported and included diplomatic immunity as a customary rule (Cassese, 2002;Gray, 2002;Orakhelashvili, 2002;Wirth, 2002;Wickremasinghe, 2003;Becker, 2017;Das, Nargas, 2018). The ICJ took into consideration the main conventions on the subject 89 , the practice developed by the national Courts 90 and certainly the related jurisprudence up to that time of the international criminal Courts 91 affirming Belgium as responsible for the issue of the arrest warrant against the former Minister of Foreign Affairs 92 .…”

The Place of Non-Aggravation in the Peaceful Settlement of Territorial and Maritime Disputes

“…In Nicaragua v Colombia (ICJ, 2016a), Colombia contended that prior to the filing of Nicaragua's application there was no dispute between the parties with respect to the claims advanced in the application. In Marshall Islands v United Kingdom (ICJ, 2016b), the ICJ declined to exercise its judicial function on the basis of the absence of a dispute between the parties (Becker, 2017).…”

Enforcing the ‘Community Interest’ in Combating Transnational Crimes: The Potential for Public Interest Litigation

“…48 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, ICJ Reports 2016, p. 883, para. 41;Becker (2017). 49 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Provisional Measures, Order of 23 January 2020, ICJ Reports 2020, p. 3, paras.…”