On October 25, 2016, the International Court of Justice delivered its judgements on the objections raised by Pakistan, India and the United Kingdom regarding the jurisdiction of ICJ to accept and entertain Marshall Island’s case of ‘Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament’. Upholding the objections, the Court reasoned that there did not exist a prior legal dispute, a prerequisite or a necessary condition for any case to be accepted in ICJ between either of these countries and Marshall Islands during the filing of the case in April 2014. Moreover, this ruling precludes any further proceedings on the other merits of the case. None of the states agreed to become part of the oral proceedings, refusing to recognise the jurisdiction of ICJ as they had no dispute with the plaintiff.

It is important to reflect upon the ICJ’s judgement which vindicated Pakistan’s position reflected in its letter submitted by its co-agent to the court and before that in its counter-memorial. The letter states, “The case brought up by RMI (Republic of Marshall Islands) does not fall within the scope of those specific issues over which Pakistan recognises ICJ’s jurisdiction,” thus seeking the dismissal of the case. Moreover, it asserts, “Pakistan’s nuclear programme is a matter of its national defence and security which falls exclusively within domestic jurisdiction and therefore not to be called into question…” The letter claims Pakistan does not have any dispute, let alone a legal one, with RMI. In addition, it’s a basic principle of international law that both parties should consent to the Court’s jurisdiction prior to the beginning of proceedings. In this case, Pakistan does not recognise the jurisdiction of the ICJ. Nor is Pakistan a member of the NPT, Article VI of which RMI invoked to build up its legal case against nuclear weapons states not fulfilling their obligations to nuclear disarmament and not getting embroiled in an arms race. But since the court upheld Pakistan’s objection to ICJ’s jurisdiction, it did not proceed to the other merits of the case.

Marshall Islands had filed a case against nine nuclear weapons states in ICJ on April 25, 2014, for failing to fulfil their obligations of eliminating their nuclear arsenals. The filing of the simultaneous nine applications related to the same matter of ‘halting the nuclear arms race,’ though it distinguished between states recognising ICJ’s jurisdiction and others that did not. Moreover, it also made a distinction between states which are signatories of NPT and others that are not. Since only India, United Kingdom and Pakistan recognise the jurisdiction of ICJ, RMI invoked Article 36, paragraph 2 of the Statute of Court, to bring cases against these countries in the ICJ.

Besides the legal aspect, it is important to understand the significance of the case in the context of what Avner Cohen calls ‘the politics of nuclear disarmament.’ The lawsuit reflected a fledging movement to link nuclear disarmament to humanitarian issues and make efforts to materialise that vision. In 2010, the NPT Review Conference’s final document touched upon the humanitarian consequences of nuclear weapons. The momentum generated by it got a fresh impetus when the Conference on the Humanitarian Impact of Nuclear Weapons, was held in Oslo in 2013, highlighting the negative and destructive power of nuclear weapons on environment, economy and human beings. Unsurprisingly, none of the nuclear powers attended it. Thus, terming the lawsuit in ICJ as an attempt to keep the momentum and revitalise the discourse by inextricably linking it with humanitarian issues would not be far off the mark. The recurring use in the legal proceedings of phrases like ‘breaching of the customary international law’ clearly hints at attempts to bring NPT, which is not currently considered a part of international customary law, at par with it. Had ICJ come up with a ruling in its support, then it would have further buttressed its credentials and kindled a debate on these issues.

The greatest strength of the case emanated from Marshall Islands’ own experience with catastrophic consequences of nuclear tests. From 1946 to 1958, Marshall Islands , then a trustee territory of the USA, sustained 67 US atmospheric nuclear weapons tests, making hundreds of people flee Bikini and Enewetak atolls, as radiological fallout and contamination affected thousands more. Six thermo-nuclear weapons tests, also known as Castle Series, were conducted in RMI between March 1 and May 14, 1954, totalling nearly 48 megatons of explosives. Robert Alvarez of the Institute of Policy Studies says that the radioactive releases of the Bravo bomb, the 15-megaton thermos-nuclear bomb (making it 1,000 times as powerful as the US nuclear weapons used on Hiroshima and Nagasaki in 1945), were more than the radioactive iodine released by Fukushima and Chernobyl accidents combined. The humanitarian initiative on the part of RMI has much to do with its own experience of having borne the brunt of US nuclear and biological weapons tests. Interestingly, the RMI case was widely reported to have been prompted by humanitarian NGOs which were behind the Republic of Marshall Islands in filing the case, as they were themselves not entitled to sue a sovereign state in the ICJ.

As mentioned before, Marshall Island’s case is a reflection of the ‘movement’ of linking nuclear disarmament to humanitarian issues but its efforts to materialise the vision of the cessation of the nuclear arms race and nuclear disarmament gets seriously undermined when it fails to bring the bigger nuclear powers with the largest stocks of nuclear weapons into the fold, for they have neither recognised the jurisdiction of ICJ nor do they comply with NPT in its true spirit. The ruling in favour of the objections of Pakistan, India and United Kingdom and Northern Island might further dent these efforts.