No Dispute About Nuclear Weapons?

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On 5 October 2016, the ICJ rendered judgment in three cases brought by the Marshall Islands against nuclear weapons States (namely against India, Pakistan and the UK).

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 [1966], 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.

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    Comments

    Toni says

    October 6, 2016

    A pendelum oscillating between formalism and non-formalism is certainly a useful legal tool when encountering unpleasant cases, but here I feel that by denying existence of a dispute the formalism reeks. It is hard to see in the future what are the material elements of a dispute and how those are to be recognised case by case. One could imagine that the fact that a nation state finds it important enough to raise an issue before an international tribunal makes the matter a dispute -- not necessarily a meritious claim, but a dispute nonetheless.

    Kriangsak Kittichaisaree says

    October 6, 2016

    one of the most intriguing aspects of the cases was the Marshall Islands' choice of Judge Bedjaoui as its judge ad hoc. Remember para. 105, 2E of the ICJ's 1996 Advisory Opinion: "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake (by 7 votes to 7, by the President Bedjoui's casting vote).

    One theory is that his Declaration appended to the Advisory Opinion shows where his sympathy lies, and that had the question(s) submitted to the ICJ then been framed more appropriately, the ICJ would have decided in favour of the illegality of the threat or use of nuclear weapons.

    It seems that Judge Bedjaoui's stance in these cases brought by the Marshall Islands might support that theory.

    Dan Joyner says

    October 6, 2016

    Readers may or may not be interested in my reaction to the dismissal of these cases over at my blog Arms Control Law.

    https://armscontrollaw.com/2016/10/05/my-reaction-to-the-dismissal-of-the-marshall-islands-cases-by-the-icj/

    Tom Ruys says

    October 6, 2016

    Thank you for sharing your views Christian. When reading the judgments, I can't help but wonder whether the outcome would had been different if the Marshall Islands had first lodged more explicit official protests (through the regular bilateral diplomatic channels). If all it takes for there to be a proper 'dispute' are a few formal protests hinting at an internationally wrongful act, then what is to stop the Marshall Islands from starting the case all over again (if they still have the appetite)? Just to say that I don't find the Court's new-found formalism very helpful (and that I wouldn't be suprised if the Foreign Office again goes tweaking its declaration accepting compulsory jurisdiction - hint not intended)...

    PS: @Dan: if you ever were to offer acting as pro bono counsel on my behalf, I sure wouldn't turn down the offer ;-)

    Christian Tams says

    October 7, 2016

    Dear all

    Thanks for your comments. By way of quick response:

    Toni: yes, one needs to strike a balance. The fact that a matter is raised before a court in itself (which you suggest) however seems rather too lenient an approach. What would remain of the requirement of a dispute if it could be "created" by instituting proceedings? Art36(2) and countless compromissory clauses require the existence of a dispute as a condition for the exercise of jurisdiction. The following statement from Judge Crawford's dissent in my view is helpful: "I share the Court’s view that a dispute cannot be created simply by the filing of an application (see Judgment, paragraphs 43, 54), because otherwise the requirement that a dispute exist would be completely nullified. Rather, the question is whether enough of the dispute was in existence prior to the Application here and whether the Court has enough flexibility to recognize it as a dispute" (para. 25). That permits the balancing you rightly call for.

    Kriangsak: yes, the choice of ad hoc was intriguing.

    Dan: I read your piece on 'Arms Control Law' and found it highly interesting. Its focus is quite different, addressing on issues that I purposefully left to a side - the broader implication of the proceedings; the quality of the RMI's pleadings, etc. But that means they complement each other. I felt that, as concerns the submissions concerning the requirement of a 'dispute' (ie the focus of my short comment), you were perhaps rather harsh in criticising the RMI: if you look at the transcript of the oral hearings, you'll see that counsel addressed the key issues (http://www.icj-cij.org/docket/files/160/18942.pdf - especially Prof Condorelli's pleading). The Court's majority simply felt that not "enough of the dispute was in existence prior to the Application" (to quote that phrase again) - and that quite a lot would have to be in existence beforehand.

    Mark says

    October 7, 2016

    Thank you for your interesting observations.
    I wouldn't go so far to say the judgement marks a new approach by the court. This is the fourth time since 2012 the court has dismissed a claim on the basis of the absence of a dispute (the others: Belgium v Senegal, Burkina Faso/Niger and Nicaragua v Colombia (Alleged Violations)), though the first time since 1974 the absence led to the dismissal of an entire case. The judgement in Georgia v Russia also appears in line with the court's approach in the Marshall Islands cases (see Judge ad hoc Caron's observation in the Alleged Violations case on the level of detail the court went to in Georgia v Russia (paragraph 25): http://www.icj-cij.org/docket/files/155/18964.pdf).
    I do agree with Tom that the judgement leaves open the possibility for the Marshall Islands to start from scratch. Maybe trying to address this anomaly (and in a relatively rare dicta of rationale for the court) the judgement states: "If the Court had jurisdiction with regard to disputes resulting from exchanges in the proceedings before it, a respondent would be deprived of the opportunity to react before the institution of proceedings to the claim made against its own conduct."

    Dan Joyner says

    October 7, 2016

    Thanks Tom :-)

    Christian, thank you for your comments on my piece over at Arms Control Law. To be fair, I'll say that I did not expect the case to be dismissed on the grounds that there was no dispute between the parties. I agree with you and others that there is an unwelcome formalism in the way the court approached this issue. I thought the grounds for dismissal would be other elements of the UK's optional clause declarations.

    This is just my cynicism talking, but when you see an unusual procedural approach taken by a court, it often means that the majority of the court wanted to rid themselves of the case as quickly and with as little meaningful engagement as possible. And if you look at the nationalities of the judges who voted to dismiss on lack of a dispute, what do you find? France, U.K., U.S., Russia, China, India, Japan, Italy. All the nuclear weapons possessing states currently represented on the court, plus Italy which has a nuclear weapons sharing agreement in place with the U.S., and Japan which very much values its inclusion under the U.S. nuclear weapons "umbrella."

    Coincidence?

    Kriangsak Kittichaisaree says

    October 9, 2016

    I agree with Dan that the Advisory Opinion sought by the UNGA 'with a much more clearly justiciable question than the one which led to the [...] 1996 advisory opinion' may be a better alternative. However, there is always a risk that the Adv. Op. may go either way, esp. considering the narrow majority and the need to count the casting vote of the ICJ President on 5 Oct. 2016.