In 2014, the Marshall Islands took India to the ICJ over a dispute concerning usage of nuclear weapons. Today, we have a guest post written by Nidhi Singh, who is pursuing her Master’s Degree in Public International Law at University College London. In this article, she breaks down the reason for the case and the position of the ICJ as decision-makers. Read on to know more.
While most of us have probably never even heard of the Republic of Marshall Islands, the fact remains that in 2014, the Marshall Islands filed one of the most significant cases in the ICJ- upon the ban on the use of nuclear weapons. While the case had all the markers of turning out to be one of the most heavily followed cases in the world, no drama ensued from this filing as the case against all three countries- India, Pakistan and the United Kingdom was dismissed in the jurisdiction stage itself.
In recent times, the ICJ has found itself in a rather precarious position. It has simultaneously been accused of engaging in judicial activism and of engaging in transactional justice – which is a decision which is decided not merely on the basis of facts and law but also by keeping political power in mind. This case goes further to diminish the standing of the ICJ in the international legal community as the court has clearly engaged in what can only be termed to be “jurisdictional acrobatics” to avoid pronouncing judgement on such a contentious issue.
Since neither India nor Pakistan are part to the NPT (Non-proliferation treaty) the claims against these countries was easy to dismiss on the basis of jurisdiction. While the applicant tried to argue that NPT obligations could be said to form a part of customary international law, this was rightly dismissed by the court. The UK – Marshall Islands dispute, however, took a far more interesting turn.
Within all the countries which are party to the NPT, UK was the only country whose Article 36(2) declaration (declaration for basis of jurisdiction before the ICJ) allowed for it to be brought before the ICJ. In an effort to not deal with the dispute in question, the court avoided the subject matter and the declaration all together by focusing on the definition of the term ‘dispute’. It held that since Marshall Islands had not informed UK of this dispute before the claim was filed, no dispute could be proven. This is the first time that the court has laid down an obligation for informing another party before the filing of the claim as there is no such requirement under the ICJ charter.
Additionally, the vote on this case was split, and it was decided by the casting vote of the president. The vote was exactly split along the lines of judges whose countries are believed to have nuclear weapons and those whose countries do not. This also brings into question the independence and impartiality of the judges on the bench as judges are supposed to vote independently of the opinion of the state which has nominated them.
This opens another metaphorical can of worms, which is the requirement to notify disputes. The jurisdiction of the ICJ in contentious matters not brought before the court by way of joint agreement is complicated at best. As seen in several cases, such as Oil platforms, the Genocide Case etc., states usually have to rely upon a loophole in the respondent countries article 36(2) declaration. In the aftermath of the Marshall Islands judgement, UK immediately changed its resolution to exclude all cases relating to nuclear armament and mandated that the state would have to be informed of any potential claims up to 6 months before the claim could be filed. This would hypothetically give the states more than enough time to change their declarations so the claim could never be filed and consequently the ICJ would have no jurisdiction.
The ICJ is in a precarious position, being the world court it must respect the sovereignty of the states as being paramount, and make all efforts to ensure that it does not unduly interfere with the municipal laws of another country. While politics has no place in a court of law, certain power balances must also be respected in situations where such contentious matters are brought before the court. However, this judgement not only enforces the age old belief that the ICJ remains a pawn in the hands of the powerful but also cuts down the court’s own jurisdiction. The effects of this judgement remain to be seen…
What do you think? Do you feel the ICJ acted independently, or like the author suggests, is a puppet at the hands of the world politics? Let me know your opinions in the comments section.