Notwithstanding differences in the respondents’ optional clause declarations, the three judgments are largely identical. In all three of them, the Court decided that it did not have jurisdiction and thus could not proceed to the merits of the claims. As a consequence, the Court will not assess the substance of the Marshall Islands ‘nuclear zero’ cases – launched with significant NGO support in 2014 and meant to put pressure on nuclear weapons States to take seriously their duty to negotiate towards disarmament under Article VI of the NPT.
In this first reaction, I do not mean to comment on the outcome, but rather offer a few thoughts on the reasoning of yesterday’s judgments. This reasoning is technical, but – at least for international lawyers working in the field of dispute settlement – quite significant. To be sure, jurisdictional ‘defeats’ are quite common in optional clause proceedings before the ICJ. However, yesterday’s judgments stand out for two reasons: first, they were carried by very narrow majorities; and second, the narrow majorities were based on an unusual ground, a ‘first’ in fact: they held that there was no ‘dispute’ between the Marshall Islands and the respective respondents. A brief word on each of these two points:
First, the majorities: they were indeed narrow, and extremely narrow in the case brought against the United Kingdom. The operative clause of the judgment in that case reads as follows:
59. For these reasons,
THE COURT, (1) By eight votes to eight, by the President’s casting vote,
Upholds the first preliminary objection to jurisdiction raised by the United Kingdom of Great Britain and Northern Ireland, based on the absence of a dispute between the Parties;
IN FAVOUR: President Abraham; Judges Owada, Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;
AGAINST: Vice-President Yusuf; Judges Tomka, Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui;
(2) By nine votes to seven,
Finds that it cannot proceed to the merits of the case.
IN FAVOUR: President Abraham; Judges Owada, Tomka, Greenwood, Xue, Donoghue, Gaja, Bhandari, Gevorgian;
AGAINST: Vice-President Yusuf; Judges Bennouna, Cançado Trindade, Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui.
In other words, eight judges thought there was a dispute; eight others (incl. the Court’s President) thought there was none. In this setting, Article 55(2) of the Court’s Statute provides that the President “shall have the casting vote”. In the other two cases, the casting vote was not necessary, as the votes were 9 to 7 and 10 to 6, respectively. Unlike in the case brought against the UK, Vice President Yusuf voted in favor of the operative clause. According to him, there was no dispute between the Marshall Islands and India/Pakistan, but at least a nascent one between the Marshall Islands and the UK. Coming back to the case against the United Kingdom, it is worth noting that, at least in judgments and advisory opinions, casting votes have not been common – but decisions carried by them (such as Lotus, South West Africa , aspects of the Nuclear Weapons opinion) tend to become famous. (For more see Bardo Fassbender’s analysis in the Commentary to the ICJ Statute (2nd edn, 2012) at 1359.) Yesterday’s judgment does not exactly fit that list, as Judge Tomka agreed with the majority that the case should not proceed to the merits. (According to him, the Marshall Islands’ claim was inadmissible as other nuclear weapons States were not party to the proceedings – another intriguing question raised by the proceedings.) But it comes quite close.
Second, the dispute about the existence of a ‘dispute’. This deserves detailed study; no more than a few thoughts are offered at this stage. The question is significant as the Court’s case-law treats the requirement as a threshold condition. The PCIJ’s and ICJ’s jurisprudence offers various ‘definitions’ of the notion – from ‘disagreements on points of law or fact’ à la Mavrommatis to ‘positively opposed claims’ (South West Africa). Yesterday’s majority judgments are notable in that they require the Respondent to have been “aware” that its views were positively opposed by the Claimant, or at least that it “could not have been unaware”. This requirement was not met, held the majority, as the Marshall Islands had not, prior to launching the case, raised claims against the Respondents. The fact that a dispute crystallised during the proceedings did not help: the initial defect could not be remedied through subsequent conduct in the course of proceedings.
The majority portrays this as a continuation of its earlier jurisprudence; but according to many of the dissenters, it marks a significant break. Judge Crawford criticises the “transform[ation] [of] a non-formalistic requirement into a formalistic one” (at para 5) and emphasises that the Court had been much more flexible in earlier cases (including at the jurisdictional stage of the Croatian Serbian Genocide case). Judge Tomka notes that “[f]or the first time in nearly a century of adjudication […] the ‘World’ Court […] has dismissed a case on the ground that no dispute existed between the Applicant and the Respondent prior to the filing of the Application instituting proceedings” (para. 1 – with a footnote referrring to the particular setting of Requests for Interpretation). Both statements, and the many other views expressed in the individual opinions of judges, indicate that this is a significant holding: one that – on one reading – begins to treat the requirement of a ‘dispute’ as a meaningful filter, or that – on another reading – marks the rise of formalist reasoning.
As noted at the outset, this is no more than a first reaction – but perhaps enough to suggest that these are significant judgments that should be discussed widely.