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
They also had the backing of United Nations.  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.
contention was that these nuclear weapon states breached the customary
international law obligations on nuclear disarmament flowing from Article VI
of the Non - Proliferation Treaty. 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.
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.
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
Although India is not a party to the Non - Proliferation treaty, it was the postulation of Republic of
Marshall Island that the Article VI 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. 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.
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. Thus, Republic of Marshall Island requests the court to order
India to take all steps necessary to comply with its obligations under customary
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
Marshall Island heavily rely on ocean for food supplies. This because of the unsuitable farming
soil. 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.
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.
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.
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.
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.
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. 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 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 of the statute of the court.
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.
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. 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
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
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 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.
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) 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 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. India refers to Article 43 of the ILC Articles on State Responsibility which requires an injured state to
give notice of its claim to the allegedly responsible state.
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
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, of its statute’’.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.
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!
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.
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. 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.
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.
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
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.
- 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.
- The Statute of The International Court of Justice.
- The Treaty on Non - Proliferation of Nuclear Weapons (NPT).
 Matthew Gutwald, MARSHALL ISLANDS NUCLEAR TESTINGAND HEALTH EFFECTS (July
5,2019, 12:05 PM), STANFORD, http://large.stanford.edu/courses/2017/ph241/gutwald2/.
 MARSHALL ISLAND MOVES UN, FILES CASEAGAINST INDIA FOR NOT STOPPING
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.
 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.
 https://www.icj-cij.org/en/case/158 (July. 6, 2019 11:30PM).
 supra note 3.
 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.
16,2019 12:50 AM).
16,2019 1:15 AM).
 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,
 Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v.
Nigeria), Preliminary Objections, Judgement, I.C.J. Reports 1998, p. 315, paras.
 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/
 Supra note 14.
 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
 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.
 Supra Note 3.
 Counter - Memorial of The Republic of India (submitted on 16th September),
 Supra Note 16
 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.
 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.
 Supra Note 16.
 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.
 Dissenting Opinion of Judge Bennouna, Pg 64, https://www.icj-cij.org/files/case-related/158/158-20161005-JUD-01-05-EN.pdf.
 NUCLEAR DISARMAMENT RESOURCE COLLECTION (Aug. 8, 12:34 AM) http://www.nti.org/analysis/reports/