Marshall Islands vs. United Kingdom

MARSHALL ISLANDS vs.
UNITED KINGDOM
October 5, 2016
Summary of the facts:

This is a case of obligations concerning Negotiations relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament
On 24 April 2014, the Marshall Islands filed a number of Applications, including
one against the United Kingdom. It accuses the latter of not fulfilling its obligations
relating to the cessation of the nuclear arms race at an early date and to nuclear
disarmament. The Marshall Islands contends more specifically that the United Kingdom
is in breach of Article VI of the Treaty on Non-Proliferation of Nuclear Weapons (NPT),
to which they are both party. According to this Article, each party “undertakes to pursue
negotiations in good faith on effective measures relating to cessation of the nuclear
arms race at an early date and to nuclear disarmament, and on a treaty on general and
complete disarmament under strict and effective international control”.
The Applicant further accuses the United Kingdom, inter alia, of opposing United
Nations General Assembly resolutions calling for such negotiations to begin; engaging
in “negative and obstructive” conduct with regard to the cessation of the nuclear arms
race at an early date; and repeatedly declaring its intention to rely on its nuclear arsenal
for decades to come. By an Order of 16 June 2014, the Court (ICJ) fixed 16 March 2015
and 16 December 2015 as the respective time-limits for the filing of a Memorial by the
Marshall Islands and a Counter- Memorial by the United Kingdom. On 15 June 2015,
i.e., within the three-month time-limit provided for in Article 79, paragraph 1, of the Rules
of Court, the United Kingdom raised certain preliminary objections in the case. Under
the provisions of Article 79, paragraph 5, of the Rules of Court, the proceedings on the
merits were consequently suspended and the President of the Court, by an Order dated
19 June 2015, fixed 15 October 2015 as the time-limit within which the Marshall Islands
might present a written statement of its observations and submissions on the
preliminary objections raised by the United Kingdom.
Issues: Whether the court must uphold the preliminary objection to jurisdiction raised by
the United Kingdom of Great Britain and Northern Ireland, based on the absence of a
dispute between the Parties and whether the court must proceed to the merits of the
case.
Decisions:
After holding hearings from 9 to 16 March 2016, the Court delivered its Judgment
on the preliminary objections raised by the United Kingdom on 5 October 2016, finding
that the United Kingdom’s first preliminary objection must be upheld. It further
concluded that, lacking jurisdiction under Article 36, paragraph 2, of its Statute, it cannot
proceed to the merits of the case. Given this conclusion, the Court found no need to
consider the other preliminary objections raised by the United Kingdom. Denominated
as follows:
(1) By eight votes to eight, by the President’s casting vote, Upholds the first
preliminary objection to jurisdiction raised by the United Kingdom of Great Britain and
Northern Ireland, based on the absence of a dispute between the Parties; IN FAVOUR:
President Abraham; Judges Owada, Greenwood, Xue, Donoghue, Gaja, Bhandari,
Gevorgian; AGAINST: Vice-President Yusuf; Judges Tomka, Bennouna, Cançado
Trindade, Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui;
(2) By nine votes to seven, Finds that it cannot proceed to the merits of the case.
IN FAVOUR: President Abraham; Judges Owada, Tomka, Greenwood, Xue, Donoghue,
Gaja, Bhandari, Gevorgian; AGAINST: Vice-President Yusuf; Judges Bennouna,
Cançado Trindade, Sebutinde, Robinson, Crawford; Judge ad hoc Bedjaoui.
In his declaration, President Abraham explains that he voted in favour of the
Judgment because he considers the Court’s decision to be fully consistent with its
recent jurisprudence relating to the requirement for a “dispute” to exist between the
parties, as established by a series of Judgments handed down over the past five years,
in particular the Judgment of 1 April 2011 in the case concerning Application of the
International Convention on the Elimination of All Forms of Racial Discrimination
(Georgia v. Russian Federation), the Judgment of 20 July 2012 in the case concerning
Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) and
the Judgment of 17 March 2016 in the case concerning Alleged Violations of Sovereign
Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia). It is
apparent from these Judgments, he explains, that, in order to determine whether the
condition relating to the existence of a dispute has been met, the date to be referred to
is the date of the institution of the proceedings, and that the Court can only find that it
has jurisdiction to entertain a case where each party was  or must have been 
aware on that date that the views of the other party were opposed to its own. President
Abraham explains that, even though he expressed reservations at the time the Court
established this jurisprudence, he nevertheless considers himself to be bound by such
jurisprudence and therefore voted in conformity with it.
Reference: https://www.icj-cij.org/files/case-related/160/19228.pdf. INTERNATIONAL
COURT OF JUSTICE Peace Palace, Carnegieplein 2, 2517 KJ The Hague,
Netherlands Tel.: +31 (0)70 302 2323 Fax: +31 (0)70 364 9928 Website: www.icj-cij.org
Twitter Account: @CIJ_ICJ
Submitted by:
JOHN MICHAEL C. BANTONARE

Student - Public International Law

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MARSHALL ISLANDS vs.

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JOHN MICHAEL C. BANTONARE

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