158- Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India)
On April 24th, 2014, the Marshall Islands filed an Application instituting proceedings against nine States before the International Court Justice (ICJ). In six of these claims ( those against China, the United States of America, the Russian Federation, France, Israel and the Democratic People’s Republic of Korea), the claimant invoked Article 38 paragraph 5 of the Statute of the Court. This provision makes it possible to base the jurisdiction of the ICJ on a consent not yet given by the State before it. The requests were transmitted to the aforementioned states but as no agreement having been given by them, the claims did not prosper.
For the last three States of India, Pakistan and the United Kingdom, the Marshall Islands based the jurisdiction of the Court on Article 36 paragraph 2 of the Statute of the Court. The respondent States have all raised preliminary objections relating to the jurisdiction and admissibility of the claims.
The ICJ rendered its decisions in the three cases on the same day, October 05th, 2016. It considered in all the instances that the objection raised by the respondent States based on the absence of a dispute between the Parties at the time of the introduction of the application had to be retained. The Court recalled that for a dispute to exist within the meaning of Article 36 paragraph 2 of the Statute:
- The two sides must hold clearly opposite views concerning the question of the performance or non-performance of certain international obligations;
- The evidence demonstrates that the respondent was aware, or could not have been unaware, that its views were positively opposed from those of the applicant.
- The existence of a dispute is to be determined as of the date the application is submitted to the Court.
As the facts of the case did not allow a conclusion to be drawn that there was a dispute between the parties, the ICJ could not have jurisdiction to hear these cases.
This summary is provided for informational purposes only, does not involve the responsibility of Dome and should in no way be used as a substitute for a careful reading of the judgment and order of the case.