Deconstructing Dud Disarmament Disputes

2020 ◽  
Author(s):  
James D Fry ◽  
Saroj Nair
Keyword(s):  
Nuclear Weapon ◽  
Marshall Islands ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Uk

Abstract This Article explores the limits of judicial settlement of nuclear-weapon disputes through a case study of the Marshall Islands’ cases against India, Pakistan and the UK before the International Court of Justice in 2016. It posits that judicial settlement is limited mainly by the quality of the arguments and evidence submitted by the disputants, not by any limitations inherent in judicial settlement with such politically sensitive disputes. The lawyers in the Marshall Islands’ cases should have taken greater care in crafting their arguments and in tying them explicitly to Article VI of the Nuclear Non-Proliferation Treaty and its customary equivalent.

MULTILATERAL DISPUTES IN BILATERAL SETTINGS: INTERNATIONAL PRACTICE LAGS BEHIND THEORY

2017 ◽  
Vol 76 (01) ◽  
pp. 1-4
Author(s):  
Federica I. Paddeu
Keyword(s):  
Arms Race ◽  
Marshall Islands ◽  
Customary Law ◽  
Nuclear Disarmament ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Nuclear Arms Race ◽  
The Uk ◽  
Nuclear Arms

ON 5 October 2016, the International Court of Justice handed down its decision in the three parallel proceedings involving the Marshall Islands (as applicant) and India, Pakistan and the UK (as respondents): Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India). The Marshall Islands claimed that the respondent states had failed to meet their obligation to negotiate the cessation of the nuclear arms race and nuclear disarmament in good faith, either under Article VI of the Non-Proliferation Treaty (claim against the UK) and/or customary law (against all three respondents). All three respondents formulated objections to jurisdiction and admissibility. In all three cases, they objected that a “dispute” did not exist between them and the applicant. The Court, by a narrow majority (extremely narrow in the case against the UK: by the casting vote of the President), declined to exercise jurisdiction on the basis that no dispute existed between the parties.

International Obligations Concerning Disarmament and the Cessation of the Nuclear Arms Race: Justiciability over Justice in the Marshall Islands Cases at the International Court of Justice

2019 ◽  
Vol 24 (3) ◽  
pp. 449-472
Author(s):  
Jonathan Black-Branch
Keyword(s):  
International Law ◽  
Arms Race ◽  
Marshall Islands ◽  
Sufficient Evidence ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
International Obligations ◽  
Nuclear Arms Race ◽  
The Uk

Abstract The International Court of Justice rulings in cases from the Marshall Islands against India, Pakistan and the UK not only failed to answer important questions regarding obligations to negotiate a nuclear cessation treaty and to disarm, but also raise new questions relating to the existence of a dispute under general international law. The Respondents objected to the Court’s jurisdiction to hear the case on the grounds that there was no justiciable dispute between them and the Marshall Islands, arguing that the issues should not be adjudicated within this forum. The Court agreed, finding there was not sufficient evidence of a dispute, per se, and consequently did not have jurisdiction to hear these cases on their merits as the Respondents were not aware of contentious issues. In the case of the UK, in particular, it was decided by a narrow majority, raising important questions about the Court’s strictly formalistic, and more importantly, unprecedented, approach regarding the existence of a dispute under international law. More significantly, the ruling avoided answering important questions relating to long-standing international obligations regarding disarmament and negotiations toward a treaty to cease the arms race pursuant to Article VI of the Nuclear Non-Proliferation Treaty, 1968. This article provides an overview and analysis of the Marshall Islands cases, examining the main legal issues and arguments, focusing on the Court’s reasoning and highlighting the division within the Court on substantive matters pertaining to obligations of nuclear-armed states.

The International Court of Justice Lives up to its Name

1987 ◽  
Vol 81 (1) ◽  
pp. 78-86 ◽  
Author(s):  
Herbert W. Briggs
Keyword(s):  
Convincing Evidence ◽  
Legal Issues ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Present Summary

The Judgment of June 27, 1986 of the International Court of Justice provides convincing evidence of the high judicial quality of the Court and its Members. The really exceptional wealth of legal issues considered, carefully weighed and balanced, and decided in this case will long be a source of study for international lawyers. The present summary observations can examine only selected issues.

Additional Opinions and Judicial Diversity at the International Court of Justice

2020 ◽  
pp. 246-262 ◽  
Author(s):  
Hemi Mistry
Keyword(s):  
Gender Diversity ◽  
Personal Characteristics ◽  
International Court Of Justice ◽  
The Public ◽  
Court Of Justice ◽  
International Court ◽  
The Public Sphere ◽  
The Individual ◽  
The Impact

Additional opinions—that is, dissenting opinions, separate opinions, and declarations—are, by definition, the primary institutional mechanism through which judges can express their individual views on a particular decision, as distinct from the judgment or decision proclaimed on behalf of the institution. Therefore, within the public sphere they are the principal institutional manifestation of the individual—and thus the individuality—of the judge. Consequently, for those who seek to understand the impact of certain personal characteristics upon how a judge discharges their professional functions and, in turn, the wider institutional and systemic implications of the participation of individuals bearing those characteristics, the study of additional opinions would seem a useful analytical enterprise. Using gender diversity at the International Court of Justice as a case study, the purpose of this chapter is twofold: first, to explain the relationship between diversity and additional opinions, and second, to explore the methodological potential, and challenges, that the study of additional opinions entails.

The Lockerbie case continues

1998 ◽  
Vol 57 (3) ◽  
pp. 429-471
Author(s):  
Christine Gray
Keyword(s):  
Civil Aviation ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Usa ◽  
The Uk

THE background to the Cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Jurisdiction and Admissibility) 1998 I.C.J. Rep. is well known; in 1988 Pan Am Flight 103 was blown up over Scotland and 270 people were killed. The USA and the UK accused two Libyans of the bombing and sought their extradition. Libya argued on the basis of the Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation that it was not bound to extradite its own nationals but could try them in its own courts, if appropriate. Libya took the cases to the International Court of Justice. It failed in its requests for provisional measures (see Lowe, (1992) 51 C.L.J. 408), but continued with its claims that the USA and the UK should respect its rights under the Montreal Convention and not put pressure on it to surrender the accused. The respondents made preliminary objections to the jurisdiction of the Court and to the admissibility of the application.

Case Analysis: To Review or Not to Review? The Lockerbie Cases Before the World Court

1999 ◽  
Vol 12 (2) ◽  
pp. 401-423 ◽  
Author(s):  
Nigel White
Keyword(s):  
Security Council ◽  
Case Analysis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Us ◽  
The World ◽  
The Uk

On 27 February 1998, the International Court of Justice rejected the preliminary objections of the US and of the UK in the cases concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie. The arguments made to the Court, and its decisions on jurisdiction and admissibility, are examined with a view to ascertaining the issues facing the Court, as well as the possible outcomes, if the cases reach the merits stage. The disputes over the Montreal Convention are considered, but particular attention is paid to the legal effects and, more widely, the legality of the relevant Security Council resolutions (Resolutions 748 and 883). The underlying question to be considered is whether there are any indications in the judgments that the Court is moving towards review of those resolutions.

scholarly journals Assessing the Role of Resolutions in the ilc Draft Conclusions on Identification of Customary International Law

2017 ◽  
Vol 14 (2) ◽  
pp. 227-253 ◽  
Author(s):  
Rossana Deplano, PhD
Keyword(s):  
International Law ◽  
International Organizations ◽  
International Court Of Justice ◽  
Customary International Law ◽  
Court Of Justice ◽  
International Court ◽  
State Practice ◽  
International Law Commission

On 30 May 2016, the International Law Commission (‘ilc’) adopted a set of 16 Draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in article 38(1)(b) of the Statute of the International Court of Justice, the ilc study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognising that the practice of international organizations (‘ios’) as such may be constitutive of custom. This article critically examines the ilc Draft Conclusions concerning the role of ios in the process of custom creation. It examines the concept of resolution adopted by the ilc and assesses the coherence of the interpretive methodology devised by the ilc using the un General Assembly resolutions as a case study. The findings show that the Draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

scholarly journals Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice

2019 ◽  
Vol 30 (2) ◽  
pp. 509-535
Author(s):  
Sondre Torp Helmersen
Keyword(s):  
Highly Qualified ◽  
High Quality ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
The Icj

Abstract Article 38(1) of the Statute of the International Court of Justice (ICJ Statute) instructs the Court to ‘apply … the teachings of the most highly qualified publicists’. This raises the question of how to decide who these ‘publicists’ are and how to rank them. This article suggests four factors that the Court’s judges apparently use when assessing the weight of ‘teachings’: the quality of the work, the expertise and official positions of the author(s) and agreement between multiple authors. Judges may invoke these factors because it can make their opinions more authoritative and saves time, and in order to conform with Article 38 of the ICJ Statute. Counting the authors and teachings that judges have highlighted as having high quality, being experts and holding prestigious official positions provides a list that is different from the lists of writers who are cited most often and by the most judges. While this gives a rough idea of who ‘the most highly qualified publicists’ may be, it also shows that a final, conclusive ranking cannot be given.

scholarly journals Investigating the Petition of Marshall Islands against Britain in the International Court of Justice

2017 ◽  
Vol 10 (4) ◽  
pp. 15
Author(s):  
Sahar Asadi Moghadam ◽  
Abu Mohammad Asgar Khani
Keyword(s):  
Nuclear Weapons ◽  
The United States ◽  
Marshall Islands ◽  
International Court Of Justice ◽  
Federal Judiciary ◽  
Court Of Justice ◽  
International Court ◽  
The Hague ◽  
Nuclear Tests ◽  
First Time

The international court of justice was established by Charter of the United Nations and is considered as one of its integral parts in which only experienced and knowledgeable judges and lawyers can be employed. In fact, it consists of several independent judicial institutions. Marshall Islands, a country which was cruelly imposed to nuclear tests, was brave enough to sue powerful countries with nuclear weapons. In 1996, nuclear weapons case was considered by the international court of justice for the first time. All the court’s members came to this conclusion that these countries should stop their nuclear activities and they are not permitted to use any nuclear weapon. As a result they ratified a bill. Then, Marshall Islands’ petition was considered by the international court of justice in The Hague. This country also took legal action against U.S.A. and the federal judiciary of the United States accepted to take it into consideration. This paper aims at analyzing the petition of Marshall Islands against Britain in the international court of justice. According to the content of this petition, countries can’t develop their nuclear weapons which threat men and the world. As a result, the destruction of present nuclear weapons is the only effective way to achieve this goal.

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