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

The Marshall Island officially known as the Republic of Marshall Islands (Republic of Marshall Island) is an island country near the equator of the Pacific Ocean which is blooming and evolving its diplomatic and cultural ties with India since April,1995.

The Republic of Marshall Island is an official member of the Pacific island forum on which India is also a recognised partner. In 2014, the Modi government led to the foundation of a wonderful initiative i.e. the India-Pacific Islands Cooperation (IPIC) which resulted in more robust relation among the two republics.


After the end of World War II, United States sought out a location where it could test and develop its newly proven and developed Nuclear Arsenal. The location decided upon was a series of Atolls in the Marshall Islands in South Pacific.

They also had the backing of United Nations. [1] Thus from the very inception of the new era after the World War II, Marshall Island were the victim of vicious Nuclear testing. In the long run it ultimately led to environmental damage and problems to the civilisation that flourished there. Taking all these variables into cognisance, Marshall Island made many efforts for non-proliferation of nuclear weapons.

In April 2014, the Republic of Marshall Island made an unprecedented move by instituting proceedings against the five permanent members of the United Nations (United States, China, United Kingdom, Russia, France) and also against India, Pakistan, Israel and North Korea at the International Court of Justice.

The main contention was that these nuclear weapon states breached the customary international law obligations on nuclear disarmament[2] flowing from Article VI of the Non - Proliferation Treaty.[3] Of these nine states India, Pakistan and United Kingdom had accepted the compulsory jurisdiction of the ICJ. ICJ refused to take cases against the remaining countries as they had not recognised the court’s compulsory jurisdiction. They claimed that though India and Pakistan were not party to the NPT they were bound by the similar obligations posed by customary International Law.

Facts
On 24 April 2014, the Republic of Marshall Island filed a number of Applications, including one against India. 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.[4]

In an order of 16 June 2014, India found it necessary to unravel the pertinent question regarding the jurisdiction of the court. It was the view of India that the court was not competent enough to try this alleged dispute. India wanted to find solution to this problem before beginning of the proceedings on its merits. This was stated in the order submitted to the court on the above-mentioned date. Although India is not a party to the Non - Proliferation treaty, it was the postulation of Republic of Marshall Island that the Article VI[5] of the treaty places some important obligation among all the parties who are not a party to it by the virtue of Customary International Law.

After the filing of memorial and counter - memorial by Republic of Marshall Island and India respectively, the court heard the public hearing concerning the questions of jurisdiction and admissibility from 7th - 16th March.[6] Republic of Marshall Island wanted the court to adjudge and declare that India has failed in its duty to respect the international obligations under customary international law with respect to cessation of nuclear arms race at an early date by quantitative build-up of its nuclear force contrary to the objective of nuclear disarmament.[7]

They also state that India has failed to perform in good faith its obligations under by effectively preventing the great majority of non - nuclear weapon states from fulfilling their part of the obligations.[8] Thus, Republic of Marshall Island requests the court to order India to take all steps necessary to comply with its obligations under customary international law.[9]

Existence of Dispute
Many crucial questions of law have appeared before the I.C.J in this particular case. The most pivotal one raised by the Marshall Island was regarding the existence of a legal dispute between the two countries. This question was followed by the jurisdiction of the court. It is quite easy to comprehend that if there is no legal dispute, the case cannot be tried under the court’s jurisdiction.

One could think without any shred of doubt that India was going to strongly object to this argument and prove before the court that no substantial legal dispute was present before the court of law. In doing so the court do not have the jurisdiction to try this case and other important questions of law such as of customary international law do not need to be deliberated upon. Here is the analysis of the arguments of Marshall Islands and India regarding the above discussed subject matter.

Marshall Island

Marshall Island heavily rely on ocean for food supplies. This because of the unsuitable farming soil.[10] Thus Marshall Islands rely heavily on imports from other countries, for example United States. It is butt natural that any change in earth’s atmosphere cam lead to a widespread food shortage. As RMI have a limited amount of food resources is their calculation that they will find themselves starving most likely before the rest of the world.

The maintenance and expansion of this threat, while at the same time not living up to its central 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, in itself is a clear demonstration of the scale and the nature of the dispute that exists between the two Parties to the present case.[11]

The researcher thinks that this argument has an emotional value to it but lacks a legal background. The researcher will explain about the voidness of legal background subsequently. However, this argument made by the Marshall Islands puts various concerns before us regarding the sanctity of our environment. It is no denying of the fact that these vicious nuclear tests conducted by the states possessing nuclear arsenal has grave impact on our ecosystem which in the long run can also affect the humanity.

Thus, the researcher thinks that even though the claim did not have a legal backing, the nuclear weapon states should be more methodical about forming an effective nuclear doctrine for their respective states.

The court has identified some clear parameters regarding the definition of dispute. As per of the established case of the court  Dispute is a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons.[12]

One more important judgement that gives a backing to their claim is A disagreement on a point of law or fact, a conflict of legal views or interests, or the positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by inference, whatever the professed view of that party.[13]

As per Marshall Islands all these criteria are fulfilled. The statements and conduct of India reflect the existence of a valid legal dispute over whether India is complying with its obligation to pursue in good faith and bring to a conclusion negotiation leading to nuclear disarmament in all its aspects under strict and effective international control.

On 13 February 2014, at the Second Conference on the Humanitarian Impact of Nuclear Weapons, the RMI expressly stated that the failure of States possessing nuclear weapons to engage in negotiation leading to nuclear disarmament amounted to a breach of their international obligations. It observed that The Marshall Islands is convinced that multilateral negotiations on achieving and sustaining a world free of nuclear weapons are long overdue.

Indeed, we believe that states possessing nuclear arsenals are failing to fulfil their legal obligations in this regard. Immediate commencement and conclusion of such negotiations is required by legal obligation of nuclear disarmament resting upon each and every state under Article VI of the Non Proliferation Treaty and customary international law.[14] This unambiguous statement correctly points out towards all the nuclear armed states including India and RMI unequivocally raises a dispute against all these nations. It also acknowledges regarding customary international law that it is duty of the states to follow the treaty for the greater good even when they are not a party to it.

The researcher contemplates that although it is the duty of the states to respect customs under International Law, a mere statement in a conference regarding failure to fulfil their legal obligations does not make a case for a the RMI that there is a dispute between them and the other nine nuclear arsenal nations. The researcher thinks that this public statement[15] made by RMI in a conference in which India participated is not sufficient enough to raise question of law. Subsequent behaviour of the nations does count as of significant importance though. The Marshall Islands upon these arguments claim that the International Court of Justice has the jurisdiction to try this case under Article 36, paragraph 2[16] of the statute of the court.

India

India’s stance was crystal clear from the beginning. They only stressed upon the fact the there is no existence of a valid legal dispute in their counter - memorial and thus the court lacks jurisdiction to try this case. It also apprised the court of the fact the even if it is proved that there is a valid dispute the court still lacks jurisdiction. Regarding its stance India has presented its counter arguments beautifully leaving no room for doubt that the court can try this case.

India expressed it thoughts regarding nuclear disarmament and nuclear proliferation. India has always been in support of nuclear disarmament and has showed lack of interest for the same. Since 1988, the government has taken steps for nuclear weapon free and non - violent world and forwarded the same initiatives to the United Nations General Assembly.

India’s subsequent proposals in the General Assembly and the Conference on Disarmament are testimony to their consistent support for nuclear disarmament based on the key principles of the Rajiv Gandhi Action Plan for achieving nuclear disarmament in a time bound manner.

India formulated its nuclear doctrine in the year 1999 in which it focused upon some important principles such as credible minimum deterrence policy and no-first use policy.[17] India has also refused to participate in nuclear arms race and is also ready to negotiate a global No- First Use Treaty and a proposal for a convention banning the use of nuclear weapons. India has consistently for the General Assembly resolution welcoming the Court’s conclusion regarding the disarmament obligation.

India’s own resolutions at the UN General Assembly i.e. Convention on the Prohibition of the Use of Nuclear Weapons, tabled every year since 1982 and Reducing nuclear danger, tabled every year since 1998 give further expression to India’s desire to work with other member states of the United Nations to achieve the goal of nuclear disarmament. This shows that India was always serious regarding nuclear disarmament and never took the matter lightly.

The argument has a valid ground to stand on as explained above by the researcher. It is the view of India that the Application submitted by RMI is a dispute in itself. India postulates that for a dispute to arise there has to be an attempt to raise an issue and failure to resolve the issue which gives rise to a dispute. It also stresses upon the fact that, if RMI was serious in relation to the matters raised in its application it should have sought to start negotiations with India. The RMI never brought these claims to India’s cognisance before filing it in the court. No consolations were made for bilateral negotiations.

Thus, the researcher also agrees with India’s claim regarding the artificiality of RMI’s claim. A close analysis of the Application of the RMI shows that the main aim of the party is to compel India to respect and abide by the Article VI[18] of the NPT. In more lucid terms it wants the court to declare that India is subject to the obligation provided for in Article VI of the treaty.

India asserts that this article cannot be viewed in isolation; it is a part of the treaty that has been found unacceptable by several states including India. Adding to their assertion, the court does not have the power to compel a State to accept treaty obligations to which it has not provided its sovereign consent.

India has always been crystal clear regarding its position for the NPT. Regarding Customary International Law India state in its counter - memorial that  India submits that any suggestion of the existence of a jurisdiction to compel States to accept obligations under a Treaty – in whole or in part – does not vest in this Court, and any invitation to cast upon States obligations other than those that flow from clear and well defined principles of customary international law would seriously erode the principle of sovereignty of States. It is not within the Court’s jurisdiction to extend Article VI obligations to India which is not a party to the NPT.[19]

The researcher feels that Even if it were to be assumed that there is a rule of customary international law obliging sovereign States to negotiate in good faith to arrive at a consensus on nuclear disarmament and nuclear non-proliferation, the question whether the actions of a State are lacking in good faith or fail to measure up to the so-called obligation can only be a dispute among the States engaged in the negotiations, and can only be examined in the presence of the States which were under the alleged common obligation to negotiate complete elimination of nuclear weapons.

One more important point that the researcher thinks was correctly pointed out by India that the remedies sought by the RMI should not be granted in the absence of other states. Only India, Pakistan and UK respected the jurisdiction of the court by virtue of Article 36(2)[20] of the statute.

Other states did not consent to the jurisdiction of the court. This would have shown that it is pure bilateral issue between India and the RMI and separate from the eight other cases filed by the RMI. The researcher thinks that India quite convincingly expressed its standby well founded and plausible arguments.

Judgement and the dissenting opinion

The judgement
The judgement given by the court explains why the RMI’s argument regarding the environmental concerns and sufferings to the humanity does not have a legal leg to stand on. The determination of a dispute by the court is a matter of substance and not a question of form or substance. Whether a dispute exists is a matter for objective determination by the Court which must turn on an examination of the facts.

The court points out that, India relies on the fact that the Marshall Islands did not commence negotiations or give notice to it of the claim that is the subject of the Application to support its contention that there is no dispute between the Parties.[21] India refers to Article 43 of the ILC Articles on State Responsibility[22] which requires an injured state to give notice of its claim to the allegedly responsible state.

The Marshall Islands does not refer to any bilateral diplomatic exchanges or official communications between it and India, or to any bilateral consultations or negotiations that have taken place, concerning the breach of India’s obligations alleged in the Application. This is so despite the fact that there have been bilateral meetings and exchanges on other matters between the two States in recent years.

Even the researcher reckons that just the expression of two mere statements in a conference by India is not a good enough reason for the RMI to establish the existence of dispute. Same reasoning applies for the statements put forward by RMI. In all the circumstances, on the basis of those statements whether taken individually or together it cannot be said that India was aware, or could not have been unaware, that the Marshall Islands was making an allegation that India was in breach of its obligations. The court does rightly upheld that the objection made by India regarding the jurisdiction must be upheld.

It follows that The court does not have the jurisdiction under Article 36, paragraph 2[23], of its statute’’.[24]Consequently It is not necessary for the court to deal with the other objections raised by India. Court finds that no dispute existed between the parties prior to the filing of the Application, and consequently lacks jurisdiction to consider these questions.[25]

Dissenting opinion of Judge Bennouna:

Judge Bennounna is of the opinion that the court exercised pure formalism for coming to a decision in this case. He contends that when the parties disagreed clearly before the court on points of fact and law, it demonstrated the existence of a legal dispute. He says that the disputes are indeed there and it would be sufficient for the Marshall Islands to file fresh applications before the Court in order to prevent the ground of lack of jurisdiction on which it has based itself in handing down its Judgments from being invoked again![26]

As per his knowledge of Jurisprudence and interpretation of law the only issue that had the scope of scrutiny was the obligation to negotiate laid down in Article VI of the NPT, an obligation that is also part of customary international law according to the Marshall Island. The RMI turned to seek justice to one of the principal organs of the United Nations when the population suffered terribly from the nuclear testing carried out in its territory.

The court however approached a novel way by concluding that no dispute exists. This is the first time that a case in the ICJ has been ruled of the basis of non-existence of dispute. Judge Bennouna feels that the court is limiting its interpretation of Jurisprudence, which is none the less both visible and credible One cannot deny the reasoning of Judge Bennouna. Although RMI did not have a legal leg to stand on, the court should not have exercised this level of pragmatism for deciding the existence of dispute.

The court did limit its store of jurisprudence by giving this decision. The importance of customary international law should have been given a more depth interpretation by the courts. Although India made its stance pretty clear by producing arguments being not a party to the NPT the judges should have seen this broad aspect and not just pondering upon one nation. Nuclear disarmament is a global concern and not just hinged upon nine countries.

The Aftermath of the judgement with respect to environmental concerns

International judges have a duty to be even more vigilant in the present case, which concerns a question of crucial importance for security in the world. In the present case they also needed to look from the perspective of Marshall Island, a small State whose population of a few tens of thousands of people has suffered terribly from the nuclear testing carried out in an area of its territory. The researcher however thinks that the court has not sent a strong message to the world after delivering the judgement.

Although they followed the formal process, the determination of jurisdiction on the basis of existence of legal dispute does not help in solving any problems and difficulties posed by the expansion of nuclear energy. In the researcher’s view the ICJ failed in fostering nuclear disarmament in international community. Approximately 14,900 nuclear warheads remain in the arsenals of the nine states, approximately 4,000 of these warheads are actively deployed.[27]

The majority of countries in the world, the non-nuclear-weapon states (NNWS), are committed to remain free of nuclear weapons, including some countries that once possessed nuclear weapons. The United States has reduced its stockpile by about 87% from a Cold War peak of 31,255 warheads in 1967, to the current stockpile of approximately 4,000 operational and reserved warheads.[28] While France has reduced its arsenal unilaterally, and the United Kingdom announced ambitious reductions to its arsenal in 2010, both states plan to maintain a credible nuclear deterrent for the foreseeable future.[29]

So, if one looks rationally the judgement hardly had any impact on the international community. The above facts just show that the countries are covering their tracks. Environmental concern is the last priority for them. Although it will be wrong to say that no steps have been taken for protection of the environment as a whole, a robust and an effective solution regarding environmental damage due to nuclear testing is still yet to find its way in United Nations resolutions.

Conclusion
The verdict adjudicated by the ICJ in the case of Marshall v. India raises many important questions. It was for the first time that the ICJ gave the decision considering the existence of a legal dispute. Although RMI did not have a legal leg to stand on, we should also consider the losses and sufferings they have endured because of nuclear proliferation.

India demolished the arguments of RMI beautifully, however a good introspection of the subject matter will let them ponder if there is any actual unity among the nuclear armed nations for nuclear disarmament and non - proliferation. It is no secret that all these nuclear armed nations are still carrying out surreptitious activities and still exploring the mightiness of nuclear energy. North - Korea is one step forward regarding the same irrespective of numerous sanctions against the nation.

However, there is also no denying of the fact that RMI lacked some skill and judgement. Take their Memorial and The Application submitted to the court as an example. India could rightfully point out that there were some contradictory claims and thus made the case for difficult for the RMI to prove that the court has jurisdiction.

If the RMI pointed out that India should have taken some effective measures for nuclear disarmament even though it is not a party to the NPT as per the customary international law, it was also the responsibility of RMI to initiate bilateral negotiations before filing the case. This is also accepted as a common custom, that the nations should have prior talks before moving to court. However, as we are taking International Law into consideration, there are some shortcomings.

This judgement sets many parameters for other countries too for instituting a case on similar lines. To sum it all up, the researcher asserts that the step taken by RMI was not a political move or any type of retaliation. It was a genuine concern raised by them which lacked legal proficiency. They should not lose hope and take further initiatives which are reasonable and help in overall improvement of the nuclear disarmament situation.

Bibliography

  • The Application submitted by The Republic of Marshall Island on 24th April 2014. Memorial of the Republic of Marshall island.
  • Counter - Memorial of India.
  • Draft Report of National Security Advisor Board on Indian Nuclear Doctrine, August 17,1999.
  • The Judgement of Obligations Concerning Negotiations Relating to Cessation of The Nuclear Arms Race and To Nuclear Disarmament (Marshall Island V. India)
  • International Law Commission on Responsibility of States for Internationally Wrongful Acts, 2001.


Statutes Referred

  • The Statute of The International Court of Justice.
  • The Treaty on Non - Proliferation of Nuclear Weapons (NPT).


End-Notes:
[1] Matthew Gutwald, MARSHALL ISLANDS NUCLEAR TESTINGAND HEALTH EFFECTS (July 5,2019, 12:05 PM), STANFORD, http://large.stanford.edu/courses/2017/ph241/gutwald2/.
[2] MARSHALL ISLAND MOVES UN, FILES CASEAGAINST INDIA FOR NOT STOPPING NUCLEAR ARMS
RACE (July. 5,2019, 12:41 PM), FIRSTPOST, https://www.firstpost.com/world/marshall-islands-moves-un-files-case-against-india-for-not-stopping-nuclear-arms-race-2661412.html.
[3] Article VI of the Non - Proliferation Act 1968 - 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.
[4] https://www.icj-cij.org/en/case/158 (July. 6, 2019 11:30PM).
[5] supra note 3.
[6] Obligations concerning Negotiations relating to Cessation of Nuclear Arms Race and to Nuclear
Disarmament Marshall Island v. India), Jurisdiction and Admissibility, Judgement, I.C.J reports 2016, p. 25, para 31,32,35.
[7] Ibid.
[8] Ibid.
[9] Ibid.
[10] http://www.fao.org/ag/AGP/AGPC/doc/Counprof/southpacific/marschall.htm(July 16,2019 12:50 AM).
[11] http://www.icj-cij.org/files/case-related/158/158-20141216-WRI-01-00-EN.pdf(July 16,2019 1:15 AM).
[12] Mavromattis Palestine Concessions, Judgement No.2, 1924, P.C.I.J.,SeriesA, No.2, p. 11, and most recently, Application of the International Convention on application of all forms of racial discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgement, I.C.J Reports 2011 (I), p.84, para. 30.
[13] Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary Objections, Judgement, I.C.J. Reports 1998, p. 315, paras. 89 ff.
[14] Marshall Islands Statement, Second Conference on the Humanitarian Impact of Nuclear Weapons Nayarit, Mexico, 13-14 February 2014 (available at http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/ nayarit- 2014/statements/MarshallIslands.pdf).
[15] Supra note 14.
[16] Article 36 of the statute of I.C.J  The state parties to the present statute may at any time declare that they recognise as compulsory ipso facto and without special agreement in relation to any other state accepting the same obligation the jurisdiction of the court in all legal disputes concerning:
a. the interpretation of the treaty;
b. any question of international law;
c. the existence of any fact, if established, would constitute a breach of international obligation;
d. The nature and extent of reparation to be made for the breach of International obligation.
[17] Draft Report of National Security Advisor Board on Indian Nuclear Doctrine, August 17,1999
Objectives No 3- India shall pursue a doctrine of credible minimum nuclear deterrence. In this policy of "retaliation only", the survivability of our arsenal is critical. This is a dynamic concept related to the strategic environment, technological imperatives and the needs of national security. The actual size components, deployment and employment of nuclear forces will be decided in the light of these factors. India's peacetime posture aims at convincing any potential aggressor that:
(a) any threat of use of nuclear weapons against India shall invoke measures to counter the threat: and (b) any nuclear attack on India and its forces shall result in punitive retaliation with nuclear weapons to inflict damage unacceptable to the aggressor.
Objective No 5 - India will not resort to the use or threat of use of nuclear weapons against States which do not possess nuclear weapons or are not aligned with nuclear weapon powers.
[18] Supra Note 3.
[19] Counter - Memorial of The Republic of India (submitted on 16th September), para 24.
[20] Supra Note 16
[21] Obligations concerning Negotiations relating to Cessation of Nuclear Arms Race and to Nuclear Disarmament (Marshall Island v. India), Jurisdiction and Admissibility, Judgement, I.C.J reports 2016, page 21, para 42.
[22] Article 43 of International Law Commission on Responsibility of States for Internationally Wrongful Acts, 2001 - An injured State which invokes the responsibility of another State shall give notice of its claim to that State 2. The injured State may specify in particular (a) The conduct that the responsible State should take in order to cease the wrongful act, if it is continuing;(b) What form reparation should take in accordance with the provisions of part two.
[23] Supra Note 16.
[24] Obligations concerning Negotiations relating to Cessation of Nuclear Arms Race and to Nuclear Disarmament (Marshall Island v. India), Jurisdiction and Admissibility, Judgement, I.C.J reports 2016, page 25, para 54,55.
[25] Ibid.
[26] Dissenting Opinion of Judge Bennouna, Pg 64, https://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-05-EN.pdf.
[27] NUCLEAR DISARMAMENT RESOURCE COLLECTION (Aug. 8, 12:34 AM) http://www.nti.org/analysis/reports/ nuclear disarmament/.
[28] Ibid.
[29] Ibid.

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