On 5 October 2016, the ICJ issued its judgments on preliminary objections to jurisdiction in three cases brought by the Marshall Islands against the United Kingdom, India and Pakistan relating to “Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament”.
On 24 April 2014, the Marshall Islands filed nine applications with the Registry of the ICJ. It claimed that nine States, including the United Kingdom, India and Pakistan, had failed to fulfil their obligations under Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons and customary international law concerning negotiations relating to the cessation of the nuclear arms race and to nuclear disarmament. In support of its applications against the United Kingdom, India and Pakistan, the Marshall Islands invoked Article 36(2) of the ICJ Statute as a basis for jurisdiction, referring to the declarations accepting the compulsory jurisdiction of the Court made under Article 36(2) by the Marshall Islands (24 April 2013), the United Kingdom (5 July 2004), India (18 September 1974) and Pakistan (13 September 1960).
As no similar declarations had been made by China, France, Israel, North Korea, Russia and the United States, the Marshall Islands’ applications against those States required consent to the Court’s jurisdiction pursuant to Article 38(5) of the ICJ Statute. Such consent has not been given.
On 15 June 2014, the United Kingdom raised five preliminary objections to the jurisdiction of the Court and the admissibility of the application against it, including a preliminary objection based on the alleged absence of a dispute between the parties at the time of the filing of the application. India and Pakistan also raised preliminary objections, including with respect to the issue of whether a dispute existed between the parties at the time of the filing of the application.
By eight votes to eight with the President’s casting vote in the case against the United Kingdom, and nine votes to seven in the cases against India and Pakistan, the ICJ upheld each State’s preliminary objection based on the absence of a dispute between the parties. The ICJ recalled in its judgments that the existence of a dispute between the parties is a condition of the Court’s jurisdiction, that it is “a matter for objective determination by the Court which must turn on an examination of the facts” and that it remains for the applicant State to demonstrate that, on the facts, a dispute exists. The Court found that the Marshall Islands had failed to demonstrate the existence of a dispute between it and the United Kingdom, India and Pakistan respectively. By majority, the Court thus decided that it could not proceed to the merits in any of the cases.
For the ICJ judgment concerning the United Kingdom, click here; India, click here; and Pakistan, click here.