The Marshall Islands v. The U.K., Preliminary Memorials

I’ve now had a chance to review the Marshall Islands’ (RMI) memorial in its ICJ suit against the UK, and the UK’s preliminary objections memorial. Again, you can find these on the ICJ’s website.  The juxtaposition of the two memorials is quite instructive.

The RMI’s memorial engages in page upon page of very dramatic and sweeping narrative about the general dangers posed by nuclear weapons.  When it finally gets around to talking about the actual facts and law relevant to its case against the UK, the memorial is very weirdly and unclearly organized.  The recitation of facts regarding the UK’s history of diplomatic engagement, or lack thereof, with efforts of nuclear disarmament comes first.  Then the memorial switches to talking about why there is in fact a dispute in this case. This is followed by a long section addressing the negotiating history of the NPT and its object and purpose.  Only at this point does the memorial actually address in a focused way Article VI of the NPT, which is the entire substantive legal basis of the RMI’s case.

Once the memorial does get around to analyzing Article VI, the legal discussion is decent, and brings out the main points of necessary interpretation.  But having already discussed the facts and negotiating history at length in previous sections, the legal analysis of Article VI is not then followed by a clearly structured application of the law to the facts of the case, leaving the reader confused at the hodgepodge organization of the whole of the memorial.

Basic principles of professional legal writing and treaty interpretation would have recommended a much more clearly organized presentation, beginning with a rigorous interpretation and exposition of the law in Article VI, read in light of the provision’s context and the treaty’s object and purpose.  Only after this exposition should a clearly structured application of law to facts be presented, showing how the respondent has failed to uphold its legal obligations, correctly interpreted.

So yes, what I’m saying is that the RMI’s memorial is shit legal writing.

Substantively, the RMI’s memorial also makes some completely unnecessary and confusing arguments about the erga omnes character of the obligations in NPT Article VI, and about the customary law nature of those obligations – neither of which arguments are at all necessary to make in the context of a respondent state which is without question a party to the NPT.

Turning then to the UK’s preliminary objections memorial, basically this memorial should serve as an instructive foil to the RMI’s legal team, helping them to see what a memorial submitted to the ICJ should look like.  The UK’s memorial is well written and well organized.  It focuses on the relevant legal questions the court needs to answer at this stage in the proceedings, and presents its legal arguments concisely and clearly, applying well-researched interpretations of law to facts.

I have to say also that substantively, I found the UK’s procedural arguments overall to be highly persuasive. This is particularly the case with regard to the UK’s arguments relative to the parties’ optional clause declarations.  I can very easily see the court agreeing with these bases for dismissing the action.

I would take issue, though, with a couple of the UK’s substantive arguments.  The first is the argument that the court cannot proceed jurisdictionally with this case against the UK alone as respondent, because the court’s considerations will necessarily implicate the legal interests of other states.  I think the court would be perfectly capable in the merits phase of assessing the UK’s individual responsibility for its individual action or inaction in complying with its own individual obligation under NPT Article VI.  The fact that Article VI imposes shared obligations on states does not produce a mutual exclusivity with its imposition in parallel of individual obligations on states.  As I argued in my 2011 book, Article VI should be read as imposing obligations of effort upon states individually to pursue negotiations, and not as imposing only shared obligations of negotiation and result.

I also disagree with the UK’s argument that this is a case in which the court should withhold an assertion of jurisdiction because it would not be in a position to “render a judgment that is capable of effective application.”   The NPT is ongoing in its application as a treaty between the parties to the dispute.  The court could, at least in principle, give a declaratory judgment to the effect that the UK is in continuing breach of the NPT.  It could also in principle order the UK to take individual efforts that would satisfy its individual obligations under NPT Article VI.