Case Brief: Marshall Islands v. United Kingdom

Present during the case:

  1. President Abraham; Vice-President Yusuf
  2. Judges Owada, Tomka, Bennouna, Cançado Trindade, Greenwood, Xue, Donoghue,
  3. Gaja, Sebutinde, Bhandari, Robinson, Crawford, Gevorgian;
  4. Judge ad hoc Bedjaoui; Registrar Couvreur.

The Marshall Islands:

The Marshall Island officially known as the Republic of Marshall Islands (Republic of Marshall Island) is an island country near the equator of the Pacific Ocean, One effect of the Republic of the Marshall Islands (RMI) initiative is to bring on the policies of the nuclear weapons states, which claim to be committed to a make the world free of Nuclear Weapons and not showing the slightest willingness to reach that goal at the same time into the spotlight.

Brief of Facts:

On 24 April 2014, Applications were filed against 9 States (China, Democratic People’s Republic of Korea, France, India, Israel, Pakistan, Russia, United Kingdom of Great Britain and Northern Ireland and USA) by the Republic of the Marshall Islands, accusing them of not abiding by their obligations with respect to nuclear disarmament and to the cessation of the nuclear arms race at an early date.

While all these 9 applications were related to same matter, the Marshall Islands distinguished between India, Pakistan and the United Kingdom who had recognized the mandatory jurisdiction of the Court, and the six others, in respect of which the Marshall Islands proposed to found the jurisdiction of the Court on consent which was yet to be given.

The Applications filed against these 6tra States were conveyed to them but not entered in the General List, and action was not taken in the proceedings in the absence of their consent.

With consideration to the cases filed in the General List, the Marshall Islands more specifically accused United Kingdom of the violation of Article 6 (Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.)of the Treaty on Non-Proliferation of Nuclear Weapons (NPT) and both were party to it.

Although India and Pakistan were non-parties of the NPT, certain obligations enacted in that instrument applied to all States as a matter of conventional international law asserted the Marshall Islands, and such was the case of the obligations provided for in Article 6 of the NPT.

The court was informed by India and Pakistan that the Marshall Island’s Application was unacceptable as they considered that it had no jurisdiction to entertain the dispute claimed by the Marshall Islands, these questions must be resolved first was said by the Court, before any proceedings. Subsequently written pleadings were filed on the questions by the parties within the fixed time limit.

The Court time barred The Republic of the Marshall Islands for filing the Memorial and United Kingdom for the Counter-Memorial in the proceedings that was set in motion against United Kingdom. However, United Kingdom added certain Preliminary objections in the case within the time-limit of 3 months following the filing of the Applicant’s Memorial, the. Consequently, the proceedings on the merits were suspended, and written statement of observations and submissions was presented by the Marshall Islands on the Preliminary Objections put up by the United Kingdom.

Public hearings were held in all 3 cases in March 2016, and on 5 October 2016 the judgement was delivered by the court on each case.

Issues Raised:

ISSUE 1: The General Assembly and the Security Council resolutions recognizes the existence of an obligation under Customary International Law upon all states to negotiate in good faith of nuclear disarmament.

ISSUE 2: Breach of obligations concerning negotiation relating to cessation of the Nuclear Arms Race and to Nuclear Armament by UK.

Judgement:

In each of the 3 Judgments the Court considered that the preliminary objections of that is based on the absence of a dispute between the Parties at the moment the Applications were filed, given by the responded States should be upheld.

It was also noted by the court that dispute can exist only if the both sides must be holding clearly different views with respect to the question of the performance or non-performance of some international obligations. It further noted that a dispute exists when the evidence indicate that the respondent had the knowledge, or could not have had the knowledge, that its views were positively opposed by the applicant.

At last, the court also observed that, in principle, the date of submission of the application to the court determines the existence of a dispute.

Having examined the statements and conduct of the both sides in each of the cases, it was considered by the Court that they did not gave a base for finding a dispute between both the States in each case in front of the Court. Since Article 36, paragraph 2, of its Statute says the Court did not have jurisdiction, so it could not proceed to the merits of these cases.

Analysis:

In April 2014 the Republic of the Marshall Islands approached to the International Court of Justice and Instituted proceedings against 9 different countries and United Kingdom was also one of them.

The Republic of the Marshall Islands claimed that United Kingdoms has breached the Article 6 of the Treaty on the Non-Proliferation of nuclear weapons (NPT) which says that parties are obliged to have bona fide negotiations on “effective measures” for the “cessation of the nuclear arms race at an early date”.

The United Kingdom and other countries viz. India and Pakistan raised some preliminary objections like:

i) the absence in existence of a legal dispute;

ii) the “indispensable parties” in the proceedings were absent;

iii) reservations in their respective declarations accepting the Court’s jurisdiction; and

iv) it lacked practical outcome of a judgment on the merits. It was held by the court that the preliminary objections by the respondent countries that bases on absence of dispute between the parties should prevail.

It also said that existence of dispute between the countries is only possible when they have clear opposite views, also that existence of dispute depends when the evidence says that one party was aware that its views are opposed by the other party apart from this existence of dispute also depends on date of application of the issue.

By examining the facts and statement by both the parties it was found that International Court of Justice does not have jurisdiction in the case as said by Article 36, Paragraph 2 of its statute.

Conclusion:

The international court of justice (here and after ICJ), the principle judicial organ of United Nations in the Three cases filed by The Republic of Marshall Islands against India, United Kingdom and Pakistan Respectively, with regard to obligations concerning negotiations relating to cessation of the nuclear arms race and to the nuclear disarmament.

It was held the preliminary objections of the respondent States are based on the absence of a dispute between the Parties at the moment the applications were filed should be upheld. Furthermore, it was opined that ICJ does not have any jurisdiction in this case.

References:

https://www.icj-cij.org/en/case/160

https://www.un.org/en/conf/npt/2005/npttreaty.html

https://www.icj-cij.org/public/files/case-related/160/160-20161005-JUD-01-00-EN.pdf

https://www.britannica.com/place/Marshall-Islands

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