Marshall Islands ICJ Cases Get Underway and Bear Out My Concerns

This week the oral arguments of the parties to the three remaining cases brought by the Marshall Islands against nuclear weapons possessing states in the International Court of Justice have finally gotten underway, and with them we now have a chance to also view the written submissions of the parties to this point.

Just to review, the Marshall Islands (RMI) brought suits in the ICJ against all nine nuclear weapons possessing states. However, only the cases against the United Kingdom, India, and Pakistan remain, because those are the only states among the respondent group that have consented to the compulsory jurisdiction of the ICJ.  So to be clear, the cases against the U.S, Russia, France, China, Israel and North Korea, have already failed, and indeed never had a chance of succeeding based upon well-known jurisdictional limitations.

Readers will recall that I’ve discussed these cases before and expressed my concern about how they were being handled by the RMI’s legal team.  Unfortunately, my concerns are being borne out through the pleadings that the RMI has made thus far.

Taking a look at the RMI’s application initiating proceedings against India, it should first be recalled that India is of course not a party to the NPT. In order for the ICJ to have jurisdiction, therefore, and certainly in order to prevail in the case, the RMI must show that the obligation in Article VI of the NPT has achieved customary international law status, in independent parallel to its existence as a treaty rule.

Readers may recall that Marco Roscini and I had a stimulating (at least to me) debate on this very subject here at ACL a couple of years ago.  See here, here, here, and here.  Now, compare this discussion to the RMI’s argument in pgs. 18-20 of their application, that NPT Article VI has achieved CIL status.  The RMI here presents what is in my view an unforgivably superficial set of sources on which to base their argument on this subject – which again is absolutely vital to both their jurisdictional and merits assertions against India.

Basically what the RMI does is lean heavily on the ICJ’s 1996 advisory opinion, and particularly on one paragraph of the holding of that case, 105(2)(F), where the court states:

There 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.

This is obviously a partial quotation of the language in NPT Article VI. But the RMI’s lawyers say that, because the court didn’t explicitly restrict this statement to apply only to states parties to the NPT, therefore the court must have been asserting that this obligation has also become enshrined in customary international law.

That is pretty thin gruel.

The ICJ is perfectly capable of saying when it thinks a principle has achieved the status of customary international law, and it does not do so here.  And there’s no other wording in the rest of the 1996 advisory opinion persuasively supporting the RMI’s interpretation of this one paragraph of the court’s judgement.

The RMI’s application then talks briefly about General Assembly and Security Council mentions of the NPT Article VI language, but never really gives a solid legal analysis demonstrating that there has been sufficient state practice and opinio juris expressed by states to support the conclusion that the NPT Article VI obligation has passed into parallel customary international law, binding upon India.

Recall that in my discussions with Marco on this subject I actually took a position which agrees in conclusion with what the RMI is arguing here.  So my problem is not with their conclusion, but rather with the weak arguments that they have mustered in support of it.  Honestly, I find this superficiality unprofessional.  It reminds me of the kind of analysis I see in student papers, not in arguments before the ICJ on which the entire case of their client depends.  A proper argument would have included a much more serious discussion of the manifestations of state practice and opinio juris that support the RMI’s argument, along with much more rigorous and comprehensive legal arguments, inter alia interrogating and rebutting the sorts of very valid concerns that Marco expressed in his discussion of the subject, including specially affected states.

I guess all I can say is that if the court somehow does allow the RMI’s case to go forward on the basis of a determination that NPT Article VI has achieved customary law status, and is therefore binding on India, it won’t be because of good lawyering on the part of the RMI’s legal team.

The oral arguments against the U.K. are scheduled for today and the RMI’s memorial, along with the UK’s preliminary objection memorial, have just been posted on the court’s webpage.  We’ll see if the RMI can do any better against an actual NPT party.

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