SEMESTER 1

LEGAL METHODS

RESEARCH PAPER ON:

INTERNATIONAL LAW

CASE STUDY ON:

MARSHALL ISLANDS V. INDIA, 2016 ICJ

(OBLIGATIONS CONCERNING NEGOTIATIONS RELATING TO

CESSATION OF THE NUCLEAR ARMS RACE AND TO NUCLEAR
DISARMAMENT)

SUBMITTED TO:
PROF.SHRIKANTH AITHAL
NMIMS KIRIT P MEHTA SCHOOL OF LAW

SUBMITTED BY:
ANOUSHKAA N V
BA LLB DIVISION C
C043
 Introduction

International law -

‘International Law’ this term was coined by an English philosopher Jeremy Bentham. This law
provides a framework to regulate organized and stable international relations between States.
The term ‘states’ in international law refers to individual nations. It is a system of treaties and
agreements that govern the relations between states. Apart from States, non-state actors like
individuals, multinational companies, international non-government organizations etc. are also
governed by the International Law. Most of the international laws are governed by treaties or
written agreements whereby participating states bind themselves legally to act in a particular
way and to set up or acknowledge the relationships between the states.

An important governing body of international law and one of the

judicial organs of the United Nations – International court of justice (hereinafter ICJ)
established in 1945 through the Article XIV (14) of the UN Charter. Headquartered in The
Hague, Netherlands, it is a forum for peaceful dispute resolution between States, rather than
through a conflict. The ICJ has jurisdiction over two types of cases – contentious cases and
advisory opinions. It comprises of a 15-judge bench, elected by the UN General Assembly and
Security Council for a tenure of 9 years. Mr. Abdulqawi Yusuf, a prominent Somalian lawyer
is the present president of ICJ.
 Background

Since the inception of the United Nations (UN), arms disarmament has been one of its central
objectives under article 1 of its Charter. The charter had given three bodies the responsibility
of the international disarmaments, namely – the General Assembly, the Security Council and
the Military Staff Committee. The first commission to deal with nuclear disarmament was
established in 1946, but this commission was dissolved when the United Nations Disarmament
Commission was formed in in 1952. The Republic of India (hereinafter, the respondent),
conducted its first nuclear test on 1974 and also possesses nuclear weapons.

The Nuclear Non-Proliferation Treaty, was entered into force on 5

March 1970. It had both Nuclear as well as Non-Nuclear states and review conferences were
held every five years. Marshall Islands is a member while India did not enter the treaty. The
aim of the treaty is to limit the proliferation of nuclear weapons and provide certain rights and
obligations to the parties. The Preamble to the NPT also declares, under Article VI, “Each of
the Parties to the Treaty 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.”
 Facts of the Case

The Marshall Islands filed an application instituting proceeding against India at the ICJ. The
contention held by the applicant, Marshall Islands was that the respondent, India did not fulfill
its obligation under the international customary law, relating to the cessation of nuclear arms
race and to nuclear disarmament. After world war 2 the United States needed a location to
develop and test its newly proven nuclear arsenals. For this, the US with the backing of UN,
chose a series of atolls in the Marshall Islands in the South Pacific Ocean. Due to uncontrolled
nuclear testing, the Island is now a victim of deep environmental damage and problems to the
civilization that is flourishing there. In 2014, the Republic of Marshall Islands filed application
instituting proceedings against the five-permanent members of United Nations Security
Council (US, UK, France, Russia and china) and India, Pakistan, Israel and North Korea at the
ICJ, intending that these states had violated the cessation of nuclear arms race and to nuclear
disarmament followed from the nuclear non proliferation treaty. India is not a party to the
nuclear non-proliferation treaty but is obliged under International customary law to contribute
to the arms disarmament. The Marshall Islands is a party to the treaty and has requested the
court to take the matter into cognizance. India accepted the compulsory jurisdiction of the ICJ
and went forth with the proceedings.
 Case Details

▪ Name of the case – Marshall Islands v India

▪ Presiding Judge – Mr. Ronny Abraham
▪ Vice President – Abdulqawi Ahmed Yusuf
▪ Other Judges on the Bench – Hisashi Owada, Peter Tomka, Mohamed Bennouna,
Antonio Augusto Cançado Trindade, Sir Christopher Greenwood, Hanqin Xue, Joan E.
Donoghue, Giorgio Gaja, Julia Sebutinde, Dalveer Bhandari, Patrick Lipton Robinson,
James Richard Crawford, Kirill Gevorgian
▪ Ad hoc Judge appointed by The Republic of Marshall Islands - Mohammed Bedjaoui
▪ Registrar – Mr. Philippe Couvreur
▪ Representatives of Marshall Islands: Mr. Tony deBrum, Mr. Phon van den Biesen, Mr.
Nicholas Grief, Mr. Luigi Condorelli, Ms Laurie B. Ashton, Mr. John Burroughs, Mr.
Paolo Palchetti, Mr. Roger S. Clark, Ms Christine Chinkin.
▪ Representatives for India: Ms Neeru Chadha, Mr. Amandeep Singh Gill, Mr. Harish
Salve, Mr. Alain Pellet.
 Issue of the Case

▪ The Republic of Marshall Islands has been used by the United States and several other
nuclear states to test their nuclear weapons since the end of world war 2.

▪ The Island is now facing irreversible damage to its ecosystem and the population living
there.

▪ To hold countries responsible for negotiations on the cessation of nuclear arms race and
nuclear disarmament, The Island country initiated proceedings against the major
nuclear power states of which, The Republic of India is also a part.

▪ The Republic of India has contended that the international court did not have
jurisdiction over the case and should dismiss the application.

▪ The court had to look into the existence of a legal dispute between both the states.
 Memorial by The Republic of Marshall Islands

The Republic of Marshall Islands (hereinafter the applicant) states that the Republic of India
(hereinafter, the respondent) has violated its international obligations under customary
international law, by not withdrawing their nuclear weapons and failing to bring to conclusion,
negotiations leading to nuclear disarmament. Particularly the respondent has been engaged in
the quantitative build-up, qualitative improvement of its nuclear forces and to maintain them
for indefinite future. Thus, violating the international law with respect to the cessation of
nuclear arms race. It was also contended by the applicant that the respondent had effectively
prevented the great majority of non-nuclear states from fulfilling their obligations under the
international law and Article VI of the Nuclear Non-Proliferation Treaty. Respondent points
out that as per the International Law Commission’s articles on ‘responsibility of the States for
Internationally wrongful acts’ an injured state need not check for admissibility or jurisdiction
with respect to cases brought in International courts or tribunals.

Counter Memorial by the Republic of India

The respondent requested the court to declare that it lacked jurisdiction over the present case
and all the claims brought by the applicant be inadmissible against the respondent. Also, the
respondent pointed out that the court should declare its lack of jurisdiction due to absence of
proceedings of ‘indispensable parties’, other states possessing nuclear weapons. Respondent
asserted that even if court has jurisdiction over the case, it should decline to exercise this power
as the proceedings based on merit would serve no legitimate purpose and would not have any
practical consequence. The respondent argued that it has been a strong supporter of nuclear
disarmament since its accession to independence. It claims that the applicant never brought its
issue to the attention of the respondent, or invoked its responsibility.
 Judgement

Article 36 of the ICJ statute1 says that the court has the jurisdiction in all “legal dispute” that
may arise between states. Hence the existence of a dispute is of importance to decide whether
the case needs to be proceeded on the basis of merits. The court stated, for a dispute to exist
the claims of one party should be positively opposed by the other party and the formal
diplomatic protest although an important step to bring a claim of one party to the attention of
another party, is not a necessary condition. The court acknowledged that the date for
determining the existence of a dispute among the parties is the date on which the application
has been submitted to the court.

The court notes that the applicant has suffered grave environmental issues because of
uncontrolled testing of nuclear weapons by other countries but this does not override the need
for the existence of the court’s jurisdiction over the case.

The court had argued that the applicant failed to show that at the time of initiating proceedings
against the respondent, the latter had no knowledge about the existence of a legal dispute with
the applicant. The court noted that the statements by the applicant could not be taken as an
allegation that India was in breach of any legal obligation. The court also added that since there
is no clarity on the applicant’s statements, those made at the international multilateral fora
doesn’t meet the requirements of a dispute. There has been a general criticism of the conduct
of all nuclear states, there hasn’t been any specific conduct of India that led to the breach.

The Court found that no dispute existed between the parties prior to the filing of the application,
and consequently it lacks jurisdiction to consider these questions, the existence and extent of
the customary international law obligations in the field of nuclear disarmament, pertaining to
the merits of the case.

1
Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and To
Nuclear Disarmament (Marshall Islands v. India), Jurisdiction and Admissibility, 2016 ,ICJ.
Notwithstanding the arguments made by the applicant, the Court held by a majority vote of
9:7, that the applicant could not prove the existence of any legal dispute between both the
parties at the time of institution of the suit which negates the jurisdiction of the ICJ on this
matter. Hence, the ICJ upheld the objection raised by the Respondent on the ground of absence
of a legal dispute and did not consider other objections raised by the Respondent in its counter-
memorial.
 Personal Comments

In the case the respondent, Marshall Islands was exploited by some of the nuclear states since
the end of world war 2, for their nuclear testing and development which has left a devastating
situation for the Island country. The country was right in its decision to hold the powerful
nuclear states at the International Court for their non-compliance to the Nuclear Proliferation
Treaty which says about the negotiations for the cessation of nuclear arms race and nuclear
disarmament. In this case the respondent, India held nuclear resources and is not a part of the
nuclear proliferation treaty. Although the respondent has taken clear stance against nuclear
weaponization, the state itself is a nuclear state and it nurtures and develops more nuclear arms.
Although both countries held bilateral meetings and exchanges on other matters, there wasn’t
any exchange or meetings held between both the parties regarding the respondent’s breach of
its legal obligation, which leads to a lack of legal dispute.

In this case, for the first time ever in the international court of justice, it has used the objective
awareness2 of the respondent to find out the existence of a legal dispute. India although a
nuclear power state has not utilised the applicant country’s land to test and does not have any
direct obligation, except for the customary international law. The respondent maintains nuclear
weapons for defence as it shares border with two nuclear states.

The Marshall Islands, have underwent several nuclear activities post the world war 2, is now
facing environmental degradation like rising sea levels, cancers attributable to immense
radiological activity affecting the Marshallese population. The applicant’s stance against the
nuclear states is well within importance taking into account the grave situation the country is
facing, but the concerns doesn’t have a legal leg to stand on.

The has not been much international activism against the nuclear disarmament, and most of the
countries’ hold nuclear weapons with or without the knowledge of the international watchdogs.
Hence this issue would not be resolved by pin pointing a few countries. Nuclear weaponization
is a stepping stone for a bigger environmental hazard in our future. The ICJ as well other
international organisations should work towards nuclear disarmament together considering the

2
Rajput1 A, “Necessity of ‘Objective Awareness’ for the ‘Existence of Dispute’” (Indian Journal of International
LawOctober 5, 2018) <https://link.springer.com/article/10.1007/s40901-018-0091-x> accessed January 2,
2021
grave possibilities of destruction and injustice towards smaller countries like the applicant who
are at the receiving end as victims. The ICJ’s decision regarding the existence of a dispute was
well written but since the issue brought up by the applicant is of much importance to the
international community, and needs to be critically examined by the court.
 Review of Literature

▪ Marshall Islands Case: Analysis of the New Pre-requisite of ‘Legal Dispute’ and
considering the objections by Archita Mohapatra3

In this article, the author has put light on the court’s decision to decline jurisdiction on the
basis of objective awareness, that is, the respondent must be aware of the dispute. This move
of the court to decline jurisdiction on the basis of objective awareness received criticism from
jurists. The other discrepancies raised were that the ICJ overlooked other objections raised by
India which had a stronger ground to decline the jurisdiction. It has been pointed out that if
there are unjustified decisions by the court, it could lead to serious repercussions. This case has
added another condition to the test of the existence of a legal dispute.

▪ Case Comment: Marshall Island v. India (Regarding Nuclear Disarmament) by Soni

Shivansh4

In this piece of article, the historical background of the nuclear testing in the Marshall Islands
is discussed. It was started by the United States after World War 2, with the backing of UN. It
is discussed that also India, not a member of the nuclear non-proliferation treaty was still bound
by the virtue of Customary International Law. The researcher puts emphasis on the
environmental imbalance in the Island country and why although there is voidness in the
applicant’s memorial, it has put forward serious concerns regarding the vicious nuclear test.
The researcher is of the opinion that even though there is lack of a legal dispute the nuclear
states should be proactive about taking some measures to form an effective nuclear doctrine.

3
Archita Mohapatra A, “Marshall Islands Case: Analysis of the New Pre-Requisite of 'Legal Dispute' and
Considering the Unconsidered Objections” (Society of International Law and PolicyDecember 1, 2017)
<https://silpnujs.wordpress.com/2017/10/04/marshall-islands-case/> accessed January 2, 2021

4
Soni Shivansh S, “Case Comment: Marshall Island v. India (Regarding Nuclear Disarmament)” (Legal Service
India - Law, Lawyers and Legal Resources) <http://www.legalserviceindia.com/legal/article-1365-case-
comment-marshall-island-v-india-regarding-nuclear-disarmament-.html> accessed January 2, 2021
 ▪ Choice and (the Awareness of) its Consequences: The ICJ’s “Structural Bias” Strikes
Again in the Marshall Islands Case by Andrea Bianchi5

The author is of the opinion that there has been ignorance among the international community
about the discrimination between nuclear and non-nuclear states. There has not been enough
knowledge about the unofficial nuclear states and their obligation to negotiate effective
measures of nuclear disarmament.

5
Bianchi, Andrea. (2017). Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes
Again in the Marshall Islands Case. AJIL Unbound. 111. 81-87. 10.1017/aju.2017.26.
<https://www.researchgate.net/publication/317308233_Choice_and_the_Awareness_of_its_Consequences_The
_ICJ's_Structural_Bias_Strikes_Again_in_the_Marshall_Islands_Case>