In this trio of decisions, the International Court of Justice (ICJ or Court) rejected applications in which a small island state claimed that three larger states known to possess nuclear weapons had breached their international obligations to undertake and conclude negotiations leading to nuclear disarmament.Footnote ¹ The Republic of the Marshall Islands, the Court acknowledged, had been the location of repeated nuclear weapons testing from 1946 to 1958, when the United States administered the archipelagic nation under the trusteeship system of the United Nations. The Court further recognized that the applicant, “by virtue of the suffering which its people endured as a result of it being used as a site for extensive nuclear testing programs, has special reasons for concern about nuclear disarmament” (para. 44). Nevertheless, it ruled that the cases could not go forward because the requisite legal dispute was absent at the time that the Marshall Islands filed its applications against India, Pakistan, and the United Kingdom.

The Court's ruling comprised three separate judgments, each upholding the respondents’ objections, plus multiple separate opinions. Each decision revealed divisions, not only on the precise issue of the threshold for initiating a case before the Court, but also on the role of the Court itself. Overall, the judgments signaled that at least in disputes implicating difficult issues of geopolitics, the Court likely will continue to apply a cautious standard to the question whether an application may advance to adjudication on the merits. What is more, the United Kingdom's post-judgment amendment to its acceptance of ICJ jurisdiction seems likely, for the foreseeable future, to block new cases respecting nuclear weapons or disarmament.

The cases began on April 24, 2014, when the Republic of the Marshall Islands filed applications against nine states that it said possess nuclear weapons: China, the Democratic People's Republic of Korea, France, India, Israel, Pakistan, the Russian Federation, the United Kingdom, and the United States. The Court placed only the applications against India, Pakistan, and the United Kingdom on its General List, because only those states had recognized the Court's compulsory jurisdiction and none of the others had agreed to accept jurisdiction for purposes of the case (para. 22). In all three of the ensuing judgments, the Court ruled narrowly in favor of the respondents; indeed, in Marshall Islands v. United Kingdom, the margin was eight votes to eight, with the president's casting vote (para. 59).

At the center of this litigation was the 1968 Treaty on the Non-Proliferation of Nuclear Weapons, to which 191 states are parties, including the Marshall Islands and the United Kingdom, but excluding India and Pakistan.Footnote ² Article VI of the Treaty states:

In its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the Court had construed Article VI to impose upon states parties a “twofold obligation”: “[T]here exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”Footnote ⁴ Later the same year, a UN General Assembly resolution urged “all States to fulfil that obligation immediately by commencing multilateral negotiations.”Footnote ⁵

The Marshall Islands’ application asserted that the United Kingdom had neither pursued nor concluded good faith negotiations as required, but rather had taken actions to improve its nuclear weapons system and further had opposed efforts to initiate negotiations. The application thus claimed that the United Kingdom had breached its obligations as a matter of treaty-based and customary international law, and it asked the Court to order the respondent to “take all steps necessary to comply …” (paras. 11–12). The Marshall Islands’ applications against India and Pakistan made analogous assertions and requests; however, because those respondents are not states parties to the Non-Proliferation Treaty, the applications relied solely on customary international law.Footnote ⁶

The United Kingdom raised five preliminary objections, the first being that “the Marshall Islands has failed to show that there was, at the time of the filing of the Application, a justiciable dispute between the Parties” respecting the alleged failure to pursue negotiations.Footnote ⁷ India and Pakistan raised similar sets of objections.Footnote ⁸ The Court resolved all three cases solely on the first objection.

Noting that Article 36(2) of its Statute confers jurisdiction in “legal disputes,”Footnote ⁹ the Court drew from its own decisions and those of its predecessor, the Permanent Court of International Justice, to define “dispute” as “a disagreement on a point of law or fact, a conflict of legal views or of interests,” and to state that the existence of a dispute depended on a showing “that the claim of one party is positively opposed by the other.”Footnote ¹⁰ The respondents argued that a party must give notice of its claim before filing an application, but the Court disagreed, describing its inquiry as one of substance rather than procedure—as an “objective determination by the Court which must turn on an examination of the facts” (paras. 38–39).Footnote ¹¹ With regard to timing, the Court stated: “In principle, the date for determining the existence of a dispute is the day on which the application is submitted to the Court” (para. 42). It added that while conduct after the filing of the application may be “relevant … to confirm the existence of a dispute,” such conduct alone cannot establish that a dispute exists (paras. 42–43). It thus held that the requisite dispute had not been established by the evidence proffered, which included statements made by the parties during the proceedings, divergences in the parties’ votes on pertinent General Assembly resolutions, and conduct that the applicant characterized as the respondents’ non-cooperation with certain disarmament initiatives (paras. 53–57).

The applicant's claim that a dispute did exist relied heavily on two statements predating the filing of the applications. First, in 2013 the Marshall Islands’ Minister for Foreign Affairs had “‘urg[ed] all nuclear weapons states to intensify efforts to address their responsibilities in moving towards an effect and secure disarmament’” (para. 28). Second, in February 2014, the Marshall Islands declared at the Second Conference on the Humanitarian Impact of Nuclear Weapons “‘that States possessing nuclear arsenals are failing to fulfil their legal obligations’” to negotiate, and it insisted that “‘[i]mmediate commencement and conclusion of such negotiations is required by legal obligation of nuclear disarmament resting upon each and every State …’” (para. 28).

In the view of the Court, these statements did not demonstrate a dispute within the meaning of Article 36(2). The Court deemed the first statement “hortatory” and insufficiently precise (para. 49). As for the second statement, the Court took note of the United Kingdom's absence from the 2014 conference—India and Pakistan were present—and further emphasized that the conference concerned “not specifically the question of negotiations with a view to nuclear disarmament, but the broader question of the humanitarian impact of nuclear weapons …” (para. 50). It added that the 2014 statement “does not specify the conduct of the United Kingdom that gave rise to the alleged breach” (id.)Footnote ¹²

At this juncture, the Court articulated the standard underlying its decision: “[I]t cannot be said that the United Kingdom was aware, or could not have been unaware, that the Marshall Islands was making an allegation that the United Kingdom was in breach of its obligations” (para. 52). Reasoning that the Marshall Islands’ statements had failed to provide “any particulars regarding the United Kingdom's conduct,” the Court ruled that the awareness standard had not been met, and thus upheld the initial preliminary objection (para. 57).

Voting in favor of the United Kingdom were eight judges; another eight voted against.Footnote ¹³ The votes favoring India and Pakistan were nine to seven.Footnote ¹⁴ The Court further ruled that it could not proceed to the merits, by votes of nine to seven with respect to the United Kingdom and ten to six with respect to India and Pakistan.Footnote ¹⁵

The separate submissions by individual members of the Court spanned many more than the twenty-or-so pages in each of the Court's three judgments. Indeed, all but two members of the Court appended a statement, and each of the three dissents filed by Judge Cançado Trindade consumed more than eighty pages. Immediately striking was the first separate submission, by President Abraham, who wrote that in the last decade, the Court had shifted away from a “flexible and pragmatic” approach and toward one that conditioned jurisdiction on proof of the existence of a dispute as of “the date of the institution of the proceedings … .”Footnote ¹⁶ Abraham previously had voted against this shift, yet joined the majority in these cases. He maintained that in the interest of consistency, “even if a judge has expressed reservations, or indeed his disagreement, at the time the Court established its jurisprudence, once the Court has done so, he must consider himself bound by it thereafter (not legally, of course, but morally) … .”Footnote ¹⁷

Likewise acknowledging a jurisprudential shift was Judge Donoghue, who explained that in her view, statements by the Marshall Islands did not permit an inference that each respondent “‘was aware, or could not have been unaware’” of the applicant's claim.Footnote ¹⁸ In contrast, Judge Owada characterized the awareness standard as reflective of “an essential common denominator” in the Court's prior judgments; he applied a case-specific inquiry to conclude that “even when taken as a whole,” the evidence did not establish the existence of a dispute.Footnote ¹⁹

Meanwhile, Judge Xue allowed “it may be arguable” that since “by now the dispute is indeed crystallized[, f]or judicial economy, realism and flexibility seem called for under the present circumstances.”Footnote ²⁰ She nonetheless voted with the majority on the grounds that the evidence put forward by the Marshall Islands was “noticeably insufficient” and ran the risk of “‘surprise’ litigation,” undesirable in a system aimed at peaceful settlement of disputes.Footnote ²¹ Xue further stated that the Marshall Islands had instituted the proceedings not “merely for the protection of its own interest,” but “more the interest of the international community,” a factor that invited consideration of “standing, locus standi, an issue that is yet to be developed in international law.”Footnote ²² She, like Judges Gaja and Bhandari, wrote that the Court should have addressed other preliminary objections raised by the respondents.Footnote ²³

Common among the dissenting opinions were complaints that the Court's approach was unduly formalistic and that it injected a new, subjective criterion—awareness—into the dispute determination. For instance, Judge Crawford objected: “But a requirement of objective awareness is not to be found in the case law of the Court.”Footnote ²⁴ Judge Tomka criticized what he called the judgment's “very strict requirement,” and asked: “Is it really the case that the” parties had no dispute about compliance with nuclear weapons disarmament, “and that they do not have such a dispute now?”Footnote ²⁵ Several dissenters wrote movingly of the merits issue which, as Judge ad hoc Bedjaoui put it, “touches on nothing less than the survival of humanity.”Footnote ²⁶ Cançado Trindade faulted the Court as “[a]lways attentive and over-sensitive to the position of nuclear-weapon States,” while Judge Robinson surmised that “it is as though the Court has written the foreword in a book on its irrelevance to the role envisaged for it in the peaceful settlement of disputes that implicate highly sensitive issues such as nuclear disarmament.”Footnote ²⁷

Four months after these pronouncements, one of the respondents, the United Kingdom, informed the UN secretary-general of changes to its declaration recognizing the jurisdiction of the Court as compulsory. By this amendment, the United Kingdom will require six months’ notice of another state's intention to file a claim against it in the Court, and furthermore will not accept jurisdiction of “nuclear disarmament and/or nuclear weapons” cases unless all other nuclear weapons states party to the Non-Proliferation Treaty also consent to the proceedings.Footnote ²⁸

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These decisions warrant careful consideration, and not just because the result signals a move toward higher thresholds for initiating cases in the International Court of Justice. Also noteworthy is the reasoning laid bare in an abundance of separate opinions, many of them drafted in unusually pointed language. Their rationales expose disagreement about the Court's role, particularly in contexts that Judge Owada aptly labeled “legal, though politically charged … .”Footnote ²⁹

Disagreement about the weight to give to precedent is apparent. In 2011, a former ICJ president explained that the Court's Statute rejects the common law principle of stare decisis, so that its judges are not bound to apply prior decisions.Footnote ³⁰ Yet in the instant case the casting vote—entrenching a jurisprudential shift toward a stricter filing requirement—hinged on a consideration that a judge is “bound” as a “moral” matter. It is true that decades earlier, a president of the PCIJ posited, as the “two pillars of the judicial function,” the “rational element” of “juridical logic” and the “moral element” of “justice.”Footnote ³¹ Still, the invocation of a moral dimension in the instant cases is curious, not only because the newly accepted rule is of relatively recent vintage, but also because international lawyers tend to value a more relaxed view on precedent for the reason that it allows easier adaptation to changed circumstances in law and society.

Also curious, the jurisprudential shift in these cases was effected by an inquiry into whether each respondent “was aware, or could not have been unaware” of the existence of a dispute. Nearly all the members of the Court who submitted opinions effectively conceded the novelty of that standard. This scarcely surprises, given this statement in the leading treatise on the practice of the Court:

Further compounding matters is the negative phrasing of the standard: whether a party “could not have been unaware” (para. 52) of the existence of a dispute seems an inquiry not susceptible to easy determination.

The applicant in the instant cases marshaled evidence of its efforts to press for nuclear weapons disarmament on several occasions since its recognition as a UN member state in 1991, decades after its territory had been used for nuclear tests. Five years later, after the Court enunciated the obligation of states not only to conduct nuclear disarmament negotiations, but also to bring those negotiations to a conclusion. The obligation was announced as a construction of the Non-Proliferation Treaty; given the disposition of these applications, whether the obligation now constitutes a norm of customary international law norm remains an open question. At least one of the official statements on which the Marshall Islands relied cited the dual obligation articulated by the Court. Yet the Court applied its awareness standard to rule that the statements had failed to alert states of a legal dispute, and further that no subsequent events had altered matters. Capturing the strain in this result is Judge Tomka's protestation (by way of a rhetorical question) that by the time of filing there remained little doubt of the existence of a dispute. Opinions suggested consensus, moreover, that subsequent proceedings established a dispute; judicial economy might better have been served by a decision proceeding to the merits of that dispute.Footnote ³³

This is not to say that a merits ruling would have issued without dissent. To the contrary, adjudication of the merits of whether nuclear weapons states have breached international obligations likely would expose tensions present since 1945. Those tensions are evident in the 1968 Non-Proliferation Treaty, which establishes different standards depending on a state's nuclear status. Indeed, those tensions surfaced in two 1996 decisions of the Court: in one, it rejected as ultra vires a World Health Organization request for an advisory opinion on the use of nuclear weapons, and in the other, respecting a similar General Assembly request, the Court declined to hold that the threat or use of nuclear weapons violated international law in all circumstances.Footnote ³⁴ It was in this latter judgment that the Court advanced the twofold obligation to pursue and conclude nuclear disarmament negotiations. “The legal import of that obligation goes beyond that of a mere obligation of conduct,” the Court there stressed, adding that “the obligation involved here is an obligation to achieve a precise result—nuclear disarmament in all its aspects—by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith” (para. 99).

The contemporary meaning, nature, and extent of that dual obligation remain questions of general concern to the global community. They are also questions of special concern to states like the applicant, which unquestionably has suffered from nuclear testing, and to the nuclear weapons states named as respondents. Yet this Court's resolution of these questions seems remote, not only because of the Court's narrowed requirements, but also because of the United Kingdom's decision no longer to consent to a case on this issue unless it is joined by the several nuclear weapons states that refused to participate in the litigation under review.