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Home Posts tagged "Marshall Islands Cases"

Capitulation in The Hague: The Marshall Islands Cases

Published on October 10, 2016        Author: 
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When questions around nuclear weapons are brought before the ICJ, we don’t expect easy answers – too far apart are the realities of power politics from any defensible conception of what the world ought to look like, and international law is caught in the middle. In the 1996 Advisory Opinion on the legality of the use of nuclear weapons, the Court gave this fundamental tension an expression, even if it came up with answers (or non-answers) that left many dissatisfied. In this week’s judgment in the cases brought by the Marshall Islands – on the obligation to pursue nuclear disarmament – it does not take up the challenge at all. It instead evades the problem, and hides its evasion behind a façade of formalist legal reasoning.

As Christian Tams has already sketched in his first reaction to the judgment on this blog, the cases were dismissed on the grounds that no ‘dispute’ existed between the Marshall Islands and the UK, India and Pakistan. This is novel not only because never before has an entire case been dismissed on these grounds by the ICJ, but also because it stretches the interpretation of a ‘dispute’ beyond previous understandings: a dispute now requires some form of ‘objective awareness’ of the respondent state prior to the filing of the case. It is true that the requirement of an existing dispute has gained greater relevance in recent years, has played a consequential role in a number of cases, and has taken on a somewhat wider meaning than in earlier jurisprudence. Read the rest of this entry…