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Case Brief: Marshall Islands vs. India

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. It has had diplomatic and cultural ties with India since 1995.

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 the USA) by the Republic of the Marshall Islands, accusing them of not abiding by their obligations concerning nuclear disarmament and the cessation of the nuclear arms race at an early date.

While all these 9 applications were related to the same matter, the Marshall Islands distinguished between India, Pakistan, and the United Kingdom. They 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 General List, and action was not taken in the proceedings in the absence of their consent.

With consideration to the cases filed in General List, the Marshall Islands more specifically accused the 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 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.

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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.

In an order of 16 June 2014, the jurisdiction of the court was brought into question by India as it found it relevant to find that out. According to India, the court did not have the jurisdiction to try the dispute. The solution was desired by India before starting the proceedings on merit.

Although India is not a party to the Non-Proliferation treaty, The Republic of Marshall Island claimed that Article 6 of the treaty obliges all the parties who are not even party to it by Customary International Law.

After the filing of memorial and counter-memorial by the Republic of Marshall Island and India respectively, from 7th – 16th March in the public hearing the court heard the questions of jurisdiction and admissibility. The Republic of Marshall Island wanted the proceedings to commence and India to be held that it violated the obligations under customary international law concerning the cessation of the nuclear arms race at an early date by a quantitative build-up of its nuclear force which was not according with the objective of nuclear disarmament.

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

Issues Raised:

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

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

Judgment:

In each of the 3 Judgments, the Court considered that the preliminary objections that are 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 a dispute can exist only if both sides must be holding different views concerning the question of the performance or non-performance of some international obligations. It further noted that a dispute exists when the evidence indicates 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 both sides in each of the cases, it was considered by the Court that they did not give 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, it could not proceed to the merits of these cases.

Analysis:

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

The Republic of the Marshall Islands claimed that India has breached 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”.

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

  • i) the absence in the 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 the practical outcome of a judgment on the merits.

It was held by the court that the preliminary objections by the respondent countries based on the absence of dispute between the parties should prevail.

It also said that the existence of a dispute between the countries is only possible when they have clear opposite views, also that existence of a dispute depends on 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 the date of application of the issue.

By examining the facts and statements by both the parties it was found that the 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 principal judicial organ of the United Nations in the Three cases filed by The Republic of the Marshall Islands against India, United Kingdom, and Pakistan Respectively, about obligations concerning negotiations relating to cessation of the nuclear arms race and the nuclear disarmament and it included the states which were also not the party to it like India.

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 and should be upheld. Furthermore, it was opined that ICJ does not have any jurisdiction in this case.

References:

https://www.icj-cij.org/public/files/case-related/158/158-20161005-JUD-01-00-EN.pdf

https://www.icj-cij.org/en/case/158

https://www.icj-cij.org/public/files/case-related/158/158-20141216-WRI-01-00-EN.pdf

https://www.icj-cij.org/public/files/case-related/158/18900.pdf

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