On 5 October, the International Court of Justice (ICJ) ruled in favor of India in a case [PDF] brought forward by the Republic of the Marshall Islands concerning its allegation levied that India had not fulfilled its obligations under customary international law, as it had failed in good faith negotiations to cease its efforts in the nuclear arms race or calls to simply disarm. Yet instead, the Marshall Islands stated that India continued to take actions to improve, expand and maintain its nuclear forces.
Strictly speaking, India won this case neither on merit nor on core jurisdictional basis. Rather, it won on the basis that there was no "evidence" of a legal dispute in the present case. Basically, under Article 38 of the statute of the ICJ, the function of the ICJ is to render decisions in accordance with international law disputes to which complying states submit. Under Article 36, paragraph 2 of the statute, the ICJ has jurisdiction in all "legal disputes" that may arise between state parties to the statute, as these member states have made a declaration in accordance with the provision.
Whether a dispute exists is a matter of objective determination for the ICJ. This must turn on an objective examination of the facts. For this purpose, the ICJ may take into account any statement-exchange between the parties. Here, the Marshall Islands sought to demonstrate that it had a dispute with India, referencing two Marshall Islands statements made in two different multinational forums to which India also happened to be present. The ICJ held that, given the circumstances and on the basis of those statements whether taken individually or together, it cannot be said that India was aware or could not have been unaware that the Marshall Islands alleged that India had breached its obligations. The nature of the exchange appears to have been, in other words, too remote.
Additionally, the Marshall Islands failed to show any bilateral diplomatic exchanges or official communications between it and India notifying India about breach of its obligations. Thus, in the present case, the ICJ upheld India's objection regarding absence of legal dispute. It would have cost nothing to the Marshall Islands if it would have informed India about its breach of obligation before bringing this case to the ICJ. Critics will say that the Marshall Islands' execution and process here demonstrate a major mistake which will draw shame at the international level.
What if the judgment would have been decided on merit?
Hypothetically here, the alternative ICJ judgment is considered: what if the Marshall Islands had conferred with India before filing the application concerning breach of India's obligation under customary international law to ensure nuclear disarmament? That scenario would have held that the ICJ would not have denied the jurisdiction, at least not on the basis of absence of legal dispute. The ICJ would have likely proceeded to decide the case on merit, unless some other ground for challenging jurisdiction was sustained. Furthermore, had the judgment been instead decided on merit, a legal question would have arose: whether India could be made bound to ensure nuclear disarmament even if it was not a party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) [PDF]. The court would first have considered the nature of customary international law, to which India would be bound if it were a party to the NPT, and second, the ICJ would have considered if India had the obligation to ensure nuclear disarmament and whether it had complied or breached that obligation.
In 1996, the ICJ contributed to the creation of the Nuclear Weapon Advisory opinion (NWA). One of the issues considered in the NWA was whether the obligation to ensure prohibition of the threat or use of nuclear weapons has its genesis in customary international law. The ICJ went on to look for joint requirements of practice, and opinio juris. The ICJ had held that a number of states had adhered to non-use of nuclear weaponry for the majority of the Cold War period and intend to continue in their adherence.
Further, the ICJ dealt with the question whether non-recourse of the use of nuclear weapons in last 50 years constitutes the expression of opinio juris. In order to trace opinio juris the ICJ looked into many General Assembly resolutions on the point. The ICJ found that many of them have been adopted with substantial numbers of negative votes and abstentions.
Thus, the ICJ concluded that although those resolutions are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the use of such weapons. Moreover, it could also be argued that if nuclear weapons have not been used since 1945, this non-use is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen.
Thus, an obligation to pursue in good faith may have existed, as well as a responsibility to bring nuclear disarmament negotiations to a close under strict international control on the parties who signed the NPT, and who, by virtue of its provision under Article 6, are bound to it. However, the countries who have not signed this treaty could not be subjected to its principles. In that case, the majority of the ICJ said that there is no customary law obligation prohibiting the threat or use of nuclear weapons, hence it could be concluded that if there is no obligation prohibiting use of nuclear weapons, then there also cannot be an obligation to indulge in nuclear disarmament through negotiation.
Further, even if the Marshall Islands would have been able to show evidence depicting the existence of legal dispute, the ICJ would have assumed jurisdiction on that basis. Consequently, it would have been difficult for the Marshall Islands to win the case against India because India, as a non-signatory to the NPT is not bound to comply with Article 6 of this treaty to engage in nuclear disarmament, and as such this obligation could not be imposed for being part of customary international law. Further, it would have been highly unlikely for the ICJ to have taken such a bold step of ruling in favor of the Marshall Islands, as it is well-known that India would have never complied with any such decision. Arguably from a critical point of view, such a decision would have proved to be yet another instance in which the ICJ made a mockery itself.
Mohit Gupta is an International Law Masters student at the South Asian University.
Suggested citation: Mohit Gupta, Thinking Beyond the ICJ's Marshall Islands Judgment, JURIST - Student Commentary, November 10, 2016, http://jurist.org/dateline/2016/11/Mohit-Gupta-Marshal-Islands.php
This article was prepared for publication by Val Merlina, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at