International Law

Marshall Islands’ Disarmament Cases Backfire

By Katherine Maddox Davis
Thursday, October 20, 2016, 9:15 AM

On October 5, the International Court of Justice dismissed the Marshall Islands’ nuclear nonproliferation litigation for lack of jurisdiction. The judgments subtly critiqued the island nation for its emotionally-driven media ploy, nearly void of legal merit. While the majority opinions read predictably, slim vote margins reveal a surprisingly close call. Read together, the judges’ opinions reassure nuclear weapons states of what they already knew: the World Court, in its present structure, will never reach the merits of disarmament in a contentious case. Still, the opinions alert states that half the judges possess a remarkably broad view of what constitutes a valid dispute.

The Marshall Islands’ legal campaign was waged against all nine nuclear weapon states but docketed against only the three that submit to the ICJ’s compulsory jurisdiction—the United Kingdom, India, and Pakistan. The Marshall Islands contended the states’ arms upkeep and failure to negotiate worldwide disarmament violated the Nuclear Nonproliferation Treaty (NPT) and customary international law. I wrote previously that this argument was ambitious given the NPT language unequivocally does not require disarmament—only good faith negotiation in that direction; and India and Pakistan are not NPT parties.

The Court divided 8-8 on whether there was a proper dispute in the United Kingdom case, tipping against jurisdiction because ICJ President Ronny Abraham was among the eight who found no dispute. The cases against India and Pakistan, despite their attenuation, were also close. The judges upheld the countries’ objections to jurisdiction by 9 votes to 7 and found the Court could not proceed to the merits of the case by 10 votes to 6.

While one of the Marshall Islands’ advocates lamented dismissal on a “microformality,” the judgments made clear the cases were dismissed on substance, not procedure. The ICJ found lack of jurisdiction for lack of dispute. The judgments advise that a dispute before the ICJ “exists when it is demonstrated, on the basis of evidence, that the respondent was aware, or could not have been unaware, that its views were ‘positively opposed’ by the applicant.” The judgment noted awareness does not necessarily amount to personal notification, but must be unequivocal. Qualifying grounds for awareness, discussed below, could make for interesting future disputes.

A lack of dispute was merely the first of many jurisdictional objections raised by the United Kingdom, India, and Pakistan. Others included the “Monetary Gold” principle of ICJ jurisprudence: one state cannot be held to answer for a multi-state issue when other players are absent from the proceedings. Even Slovakian Judge Peter Tomka, who found a genuine dispute in the United Kingdom case, voted against allowing the cases to progress to the merits. Judge Tomka noted to his “sincere and profound regret” that the litigation must be dismissed on the Monetary Gold principle. Contrary to the Marshall Islands’ aims, this litigation assures nuclear weapons states that Monetary Gold remains strong and will keep disarmament cases out of the World Court, even to the judges’ dismay. One could hardly imagine a case enticing all the other six nuclear weapons states to opt into the ICJ’s jurisdiction for a ruling concerning their arms. (The ICJ can and has spoken to disarmament obligations in an advisory opinion, though the two decades since that opinion have demonstrated what little power it possesses.)

The majority judgments can be read to rebuke the Marshall Islands for intending only to make the news. (A goal it failed: few outlets covered the litigation in depth.) The Court calls the Marshall Islands’ bluff, all but alleging the nation never intended to make the United Kingdom, India, or Pakistan aware of its concerns prior to filing the case. The Court points to a series of bilateral negotiations between the states, held prior to the cases’ filing, during which the Marshall Islands bypassed opportunities to voice specific opposing views on nuclear weapons states’ arms upkeep and disarmament negotiations. This critique may explain why the Marshall Islands administration’s first reaction after the judgment was to distance itself from what a prior administration began.

Still, a strong dissent by Vice President Abdulqawi Yusuf of Somalia contends this “awareness” qualification was plucked from thin air. He was among seven judges who voted to proceed to the merits of the United Kingdom case. (Separately, he was among ten who voted against proceeding to the merits against India and Pakistan.) Looking ahead, Judge Yusuf’s admonishment should keep states on their toes. He saw a sufficient dispute merely in the United Kingdom’s statements to the U.N. General Assembly and the Marshall Islands’ statement at a conference that the United Kingdom did not attend.

The Marshall Islands’ last hope for legal success is now before the Ninth Circuit, where the similar case it filed against the United States is on appeal. That case should reach oral argument in the next few months, though as I note elsewhere, few hold their breath.

While the Marshall Islands’ legal aims were defeated, and nuclear weapons states received further assurance that their arms will remain outside ICJ jurisdiction, Vice President Yusuf’s dispute theory is worth watching. Should a case arise that satisfies Monetary Gold, and should Vice President Yusuf convince one more colleague, states could find themselves haled into court over disputes they never knew they had.