TOPIC – Obligations concerning negotiations relating to Cessation of

the Nuclear arms race and to Nuclear disarmament

(Marshall Islands v. India)

Submitted By- Submitted To-

Aditya Gupta Mrs. Sugandha Sinha

Roll No.-1401

Semester:- 5th

Final Draft submitted in the partial fulfilment of the subject Public International
Law for the course BBA LL.B (Hons.).

CHANAKYA NATIONAL LAW UNIVERSITY

NYAY NAGAR, PATNA

 MARSHALL ISLANDS V. INDIA

DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BBA LL.B (Hons.) Project Report entitled
“Obligations concerning negotiations relating to cessation of the Nuclear arms race and to
Nuclear disarmament (Marshall Islands v. India)” submitted at Chanakya National Law
University, Patna is an authentic record of my work carried out under the supervision of Mrs
Sugandha Sinha. I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.

ADITYA GUPTA

Chanakya National Law University, Patna

Date - 31/10/2017

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 MARSHALL ISLANDS V. INDIA

ACKNOWLEDGEMENT

Writing a research paper is a herculean task, well finishing the same on the other hand seems to
give utmost satisfaction. This research though has been presented as written by single personnel,
there are quite a number of people without whose guidance and support the research work could
never have been completed. The research topic was suggested by my subject teacher and I am very
grateful to my subject teacher Mrs Sugandha Sinha for her support and guidance. I would like to
thank the library staff for their support and for providing me with books without which completion
of the research seemed a distant reality. I would also like to thank my friends and family who stood
by me and not only provided me with valuable advices regarding writing a research paper but also,
provided me with moral and emotional support.

Aditya Gupta

BBA LL.B(HONS.)

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 MARSHALL ISLANDS V. INDIA

RESEARCH METHODOLOGY

The researcher has adopted the doctrinal form of research in completing this project. Primary as
well as secondary sources of information have been used from the Library. Also, secondary soft
copy sources of information have been perused from online databases.

HYPOTHESIS

The researcher believes that the present case is outside the Jurisdiction of the International Court
of Justice.

AIMS & OBJECTIVES

1. To acquaint with obligations relating to the cessation of the nuclear arms race and to nuclear
disarmament.

2. To analyze the decision of the ICJ.

SCOPE AND LIMITATION

There are vast data available for this topic and the researcher has tried and managed to concise the
data in effective manner and stick to the core point.

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 MARSHALL ISLANDS V. INDIA

Contents
1 INTRODUCTION ................................................................................................................................ 6
1.1 HISTORICAL BACKGROUND .................................................................................................. 6
1.2 OVERVIEW OF THE CASE ....................................................................................................... 7
2 FACTS OF THE CASE ........................................................................................................................ 9
3 ISSUES IN THE CASE ...................................................................................................................... 10
4 RATIO OF THE DECISION .............................................................................................................. 13
5 ANALYSIS ......................................................................................................................................... 15
6 CONCLUSION ................................................................................................................................... 18

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1 INTRODUCTION

1.1 HISTORICAL BACKGROUND

The International Court of Justice (ICJ), while discussing the role played by the United Nations in
disarmament, identified three bodies having a ‘role in international disarmament efforts’. These
bodies are the United Nations General Assembly (UNGA), the United Nations Security Council
and the Military Staff Committee. It was notable that it omitted itself, the ICJ, from the list. The
omission came at a time when the ICJ was confronted with a case brought by the Marshall Islands
against states holding nuclear arsenal, on the grounds of violation of the international obligation
of nuclear disarmament and cessation of the nuclear race.

Nuclear disarmament falls in line with the purpose of the UN under Article 1 of its Charter.2
Article IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT), which has been signed
by 191 states, provides for cessation of nuclear arms race and disarmament.3 The UNGA had
called for a convention on nuclear disarmament in 19544 and has repeated its call in subsequent
resolutions.5 The ICJ has addressed the issue of nuclear weapons in two prior judgments. In the
Nuclear Tests Cases, it refrained from commenting on whether France had acted in contravention
of international law by conducting nuclear tests in the South Pacific Ocean.6 In the Legality of the
Threat or Use of Nuclear Weapons, it held that ‘[t]here exists an obligation to pursue in good faith
and bring to a conclusion negotiations leading to nuclear disarmament’ under Article VI of the
NPT.1 The then President Mohammad Bedjoui also declared that the obligation ‘has acquired a
customary character’2, However, the ICJ refrained from giving a decisive judgment and held that
it cannot ‘conclude definitively whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence’. Some commentators have argued that the
ICJ has been cautious in its engagement with issues 3relating to nuclear matters due to its fear of
trespassing into ‘political issues’10 and antagonising powerful states.4

1
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 1 para 105 (2) F.
2
Legality of the Threat or Use of Nuclear Weapons (Declaration of President Bedjaoui) [1996] ICJ Rep 1 para 23.
3
Surabhi Ranganathan, ‘Nuclear Weapons and the Court’ (2017) 111 American Journal of International Law Unbound
88.
4
Nico Krisch, ‘Capitulation in The Hague: The Marshall Islands Cases’ EJIL:TALK!
<https://www.ejiltalk.org/capitulation-in-the-hague-the-marshall-islands-cases/> accessed 18 Nov 2017.

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 MARSHALL ISLANDS V. INDIA

There lies an apparent contradiction in understanding the role of nuclear weapons during the “long
peace” maintained between the two poles of the Cold War, the United States and the Soviet Union.
The pessimist conclusion rests on the argument that the main causes of war and peace are
distribution and character of military power. The fact that two superpowers avoided factual war
between them is widely attributed to the fact that each was armed with a large nuclear arsenal, as
well as to their rough military equality. Thus, it was stated that such weapons had a pacifying effect
on international politics in the period that followed World War II. On the other hand, it is similarly
widely believed that the spread of nuclear weapons will greatly increase the likelihood of a nuclear
war, as emergent nuclear powers may not maintain such stable deterrence.

1.2 OVERVIEW OF THE CASE

On 24 April 2014, the Marshall Islands 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.

While India is not a party to the Treaty on Non-Proliferation of Nuclear Weapons (NPT), the
Marshall Islands — which has ratified it — argues that certain obligations laid down in the Treaty
apply to all States as a matter of customary international law. It contends in particular that this
applies to Article VI, whereby the parties “[undertake] 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”.

India having indicated, however, that it considers that the Court does not have jurisdiction in the
alleged dispute, the Court found that it was necessary to resolve that question first of all, which
should accordingly be separately determined before any proceedings on the merits.

After holding hearing, the Court delivered its Judgment on the objections raised by India to the
jurisdiction of the Court and the admissibility of the Application on 5 October 2016, finding that
India’s objection to jurisdiction based on the absence of a dispute between the Parties must be

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upheld. It further concluded that, lacking jurisdiction under Article 36, paragraph 2, of its Statute,
it cannot proceed to the merits of the case. Given this conclusion, the Court found no need to
consider the other objections raised by India.5

In the present case, the ICJ had the opportunity to address questions relating to cessation of the
nuclear arms race and nuclear disarmament, including the assertion by the Marshall Islands that
the obligation of nuclear disarmament is a part of customary international law. However, the ICJ
denied its jurisdiction over the case since there was an absence of a legal dispute between the
parties. The ICJ held that the respondents were not aware of the existence of a dispute between the
parties, hence in absence of such awareness, there cannot be any legal dispute to invoke the ICJ’s
jurisdiction. It was only Judge Yusuf who sought to distinguish the case against the United
Kingdom from the cases against India and Pakistan, observing that the latter states have
consistently shown support for nuclear disarmament. Hence, there is no dispute between the
Marshall Islands and India and Pakistan respectively.

5
http://www.icj-cij.org/en/case/158 Accessed on 4/11/17

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2 FACTS OF THE CASE

The Marshall Islands was a testing site for nuclear weapons from 1946 to 1958. As result of the
endured suffering of its people, it has shown special concern regarding nuclear disarmament. On
24 April 2014, the Government of the Marshall Islands submitted an application to the ICJ against
nine other states, for failing to comply with their obligations under customary international law
relating to cessation of the nuclear arms race and of nuclear disarmament. The ICJ listed the cases
against three states: India, Pakistan and United Kingdom, each of which had made an optional
declaration under Article 36, paragraph 2, of the ICJ Statute. Marshall Islands requested the ICJ to
order the respondents to take all the required steps to comply with their obligations under
customary international law by ceasing the nuclear arms race at an early date and conducting
nuclear disarmament within one year of the ICJ’s judgment.2

The respondents contested the jurisdiction of the ICJ over the alleged dispute.23 On 16 June 2014,
the ICJ ordered that in light of the circumstances, it was first required to adjudicate on the issue of
jurisdiction under Article 79, paragraph 2, of the Rules of the ICJ.

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3 ISSUES IN THE CASE

In the Application, the following claims were made by the Marshall Islands:

“On the basis of the foregoing statement of facts and law, the Republic of the Marshall Islands
requests the Court

to adjudge and declare

(a) that India has violated and continues to violate its international obligations under customary
international law, by failing 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
particular by engaging a course of conduct, the quantitative buildup and qualitative improvement
of its nuclear forces, contrary to the objective of nuclear disarmament;

(b) that India has violated and continues to violate its international obligations under customary
international law with respect to cessation of the nuclear arms race at an early date, by taking
actions to quantitatively build up its nuclear forces, to qualitatively improve them, and to maintain
them for the indefinite future;

(c) that India has failed and continues to fail to perform in good faith its obligations under
customary international law by taking actions to quantitatively build up its nuclear forces, to
qualitatively improve them, and to maintain them for the indefinite future; and

(d) that India has failed and continues to fail to perform in good faith its obligations under
customary international law by effectively preventing the great majority of non-nuclear-weapon
States from fulfilling their part of the obligations under customary international law and Article
VI of the NPT with respect to nuclear disarmament and cessation of the nuclear arms race at an
early date. In addition, the Republic of the Marshall Islands requests the Court

to order

India to take all steps necessary to comply with its obligations under customary international law
with respect to cessation of the nuclear arms race at an early date and nuclear disarmament within
one year of the Judgment, including the pursuit, by initiation if necessary, of negotiations in good

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 MARSHALL ISLANDS V. INDIA

faith aimed at the conclusion of a convention on nuclear disarmament in all its aspects under strict
and effective international control.”

In the written proceedings, the following submissions were presented by the Parties:

On behalf of the Government of the Marshall Islands, in the Memorial on the question of the
jurisdiction of the Court:

“In accordance with the Order of the Court of 16 June 2014, this Memorial is restricted to questions
of jurisdiction raised by India. As for the merits of the case, the Applicant maintains its
Submissions, including the Remedies requested, as set out in the Application of 24 April 2014.
For further stages of the procedure the Applicant reserves its right to clarify, modify and/or amend
these Submissions.

On the basis of the foregoing statements of facts and law, the Republic of the Marshall Islands
requests the Court to adjudge and declare that it has jurisdiction with respect to the present case.”
On behalf of the Government of India, in the Counter-Memorial on the question of the jurisdiction
of the Court:

“In view of the above and all the arguments it would develop or supplement during the Hearings,
the Republic of India requests the Court to adjudge and declare that it has no jurisdiction with
respect to the present case.”

In the oral proceedings, the following submissions were presented by the Parties:

On behalf of the Government of the Marshall Islands, at the hearing of 14 March 2016:

“The Marshall Islands respectfully requests the Court:

(a) to reject the objections to its jurisdiction of the Marshall Islands’ claims, as submitted by the
Republic of India in its Counter-Memorial of 16 September 2015;

(b) to adjudge and declare that the Court has jurisdiction over the claims of the Marshall Islands
submitted in its Application of 24 April 2014.”

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 MARSHALL ISLANDS V. INDIA

On behalf of the Government of India, at the hearing of 16 March 2016:

“The Republic of India respectfully urges the Court to adjudge and declare that:

(a) it lacks jurisdiction over the claims brought against India by the Marshall Islands in its
Application dated 24 April 2014;

(b) the claims brought against India by the Marshall Islands are inadmissible.”

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 MARSHALL ISLANDS V. INDIA

4 RATIO OF THE DECISION

In majority and sharply divided decisions a 16-judge bench at the international court of justice
(ICJ) ruled there was no evidence that the islands’ government had a prior dispute with any of the
three nuclear powers or had sought negotiations on the issue.

“The court upholds the objection to jurisdiction” raised by each of the countries, presiding judge
Ronny Abraham said in separate rulings, and therefore the tribunal “cannot proceed to the merits
of the case”.6

The entire case is based on one statement in the 1996 Advisory Opinion on the Legality Of The
Threat Or Use Of Nuclear Weapons7, also filed at the ICJ. In the case, the judges unanimously
decided:

“There exists an 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"

This part of the opinion is customary international law and in most cases; creates legal obligations.
This is because Article 38 (1) (b) of the Statute of the International Court of Justice allows
customary law to be introduced as evidence in a case.8Realising this, keep in mind that India has
engaged in nuclear disarmament negotiations for decades and a case to force India to negotiate is
unnecessary. It may also amount to duress or interfering in the internal matters of a nation.9

In The decision (which is final and without appeal) the ICJ held that it had no jurisdiction due to
a lack of a dispute between the parties, and found therefore that it could not proceed to consider
the merits of the case. The basis for doing so is set out below.

6
https://www.theguardian.com/world/2016/oct/06/marshall-islands-nuclear-arms-lawsuit-thrown-out-by-uns-top-
court
7
"LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS."International Court of Justice. . Web.
<http://www.icj-cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case....
8
"Statute Of The International Court of Justice." International Court of Justice, n.d. Web. <http://www.icj-
cij.org/documents/?p1=4&p2=2>.
9
http://www.southasiaanalysis.org/node/1622

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 MARSHALL ISLANDS V. INDIA

In Marshall Islands v India, the ICJ:

(1) Upheld, by nine votes to seven, the objection to jurisdiction raised by India, based on the
absence of a dispute between the Parties;
(2) Found, by ten votes to six, that it could proceed to the merits of the case.

In its reasoning, the Court held that it was a precondition of jurisdiction that a dispute –
where the two sides held clearly opposite views concerning the question of the performance
or non-performance of certain international obligations – must exist.
Whether a dispute existed was to be determined at the date of the time of the application, and
would be found when the evidence demonstrated that the respondent was aware, or could not
have been unaware, that its views were positively opposed by the applicant.
The ICJ (by a majority) rejected the RMI’s assertions that the existence of a dispute could, in
the circumstances of the case, be established on the basis of one or more of:
 the RMI’s statements in multilateral fora (namely statements made at the High-level
Meeting of the General Assembly on Nuclear Disarmament, on 26 September 2013; and
in the context of the Second Conference on the Humanitarian Impact of Nuclear Weapons
on 13 February 2014);
 the filing of the Application itself;
 inferences from India’s conduct.10

10
www.mcnairchambers.com

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5 ANALYSIS
The ICJ’s dismissal of the application submitted by Marshall Islands is significant as it is founded
on a subjective conception of establishing a legal dispute. The ICJ in determining the existence of
a dispute has relied on the respondents’ awareness of the applicant’s positive opposition to its
views.11 This section aims to comprehend and examine the aforementioned conception and its
politico-legal effects in the development of international law. In doing so, the section examines
the awareness test, the jurisprudence on determining a dispute and the impact of the judgment.

The ICJ has substantially diverged from its past jurisprudence, which had demonstrated a
consistent approach commencing with the decisions12 of the Permanent Court of International
Justice (PICJ) and culminating in recent cases such as Croatia v Serbia. As noted in the dissenting
opinion of Judge Robinson and the separate opinion of Judge Sebutinde, the aforementioned cases
have illustrated a preference for an objective and flexible approach that consciously steers away
from procedural firmness and formal rigour.

In the present case, the ICJ referred to an established understanding of a dispute as ‘a disagreement
on a point of law or fact, a conflict of legal views or of interests’. While relying on the Nicaragua
v Columbia13 case, the ICJ also observed that ‘whether a dispute exists is a matter for objective
determination by the ICJ which must turn on an examination of the facts’. However, while
determining the existence of a dispute between Marshall Islands and the respondent states, the
majority of the ICJ introduced a ‘subjective physical criterion’, namely the requirement of the
respondents being aware that ‘Marshall Islands was making an allegation that India [respondent]
was in breach of its obligations’. This required Marshall Islands to prove that it has expressed its
indictment of the respondents in a particular form, making them aware of the dispute, for instance
by explicitly naming them in an international conference.

The ICJ in this case, however, has adopted a relatively restrictive and narrow understanding of the
awareness test, when compared with the De Curzio case. This requirement has entrenched the
importance of procedure and has made the judicial process comparatively inaccessible. Such

11
Marshall Islands v. India (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament) [2016] ICJ GL No 158 (Dissenting Opinion of Judge Robinson) para 4.
12
Mavrommatis Palestine Concessions (n 12) 14.
13
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v Colombia),
(Preliminary Objections) [2012] ICJ Rep 624 para 50.

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 MARSHALL ISLANDS V. INDIA

procedural firmness and formal rigour was deliberately reduced in the preceding cases. For
instance, the ICJ has held that the establishment of a dispute is a question of substance and not a
matter of form or procedure. However, the requirement of making the respondents aware of the
dispute, especially in an individualised bilateral form, is a procedural prerequisite rather than one
of substance.14 The ICJ has also held that the prior negotiation is not a sine qua non requirement
for the existence of a dispute. In the Nicaragua v Colombia case the ICJ held ‘although a formal
diplomatic protest may be an important step to bring a claim of one party to the attention of the
other, such a formal protest is not a necessary condition’ for the existence of a dispute.57

In the present case the ICJ has obscured the distinction in the aforementioned cases between a
procedural lapse and the existence of a dispute. Though the ICJ in the present case clarified that
there is no requirement of a notification to the respondent before the filing of the case to establish
the existence of a dispute, the novel requirement of the awareness of the respondent of the
existence of a dispute prior to filing of the application comes dangerously close to the requirement
of a notification.

As highlighted in Judge Tomka’s separate opinion, the ICJ recognises that nuclear disarmament
cannot be achieved through unilateral acts of the state and advocates the need for collective action
and cooperation.58 However the ICJ refrains from acknowledging the multilateral nature of the
issue and continues to construct an understanding of same that falls within the ambit of
bilateralism. The ICJ’s focus on bilateral relations fails to consider the changing contours of
international law and the growing need to address multilateral issues. The ICJ while addressing
the statements made by Marshall Islands in the multilateral fora, held that the statements must
address the respondents directly.15

The jurisprudential shift towards multilateralism has been sidelined in the process. The ICJ’s
decision in cases such as the South West Africa case has emphasised the increasing formulation of
disputes in multilateral fora including a plurality of states. Judge Crawford is his dissenting opinion
has referred to the same and held that ‘No doubt any multilateral dispute must ultimately be fitted

14
George R B Galindo, ‘On Form, Substance, and Equality Between States’ (2017) 111 American Journal of
International Law Unbound 75, 76.
15
Marshall Islands Cases (n 1) para 47.

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within the bilateral mode of dispute settlement. But this does not require the ICJ to treat the
underlying relations as bilateral ab initio’.16

It may be pertinent to note that Judge Tomka and Judge Xue differed from Judge Crawford by
remaining reluctant to exercise jurisdiction over multilateral disputes. Judge Tomka considered
the nature of the ICJ and its jurisdictional structure as an impediment to adjudicating multilateral
disputes. Judge Tomka in his separate opinion further stated that the ICJ cannot adjudicate on
matters regarding a single state’s conduct in the absence of an explication of ‘the positions taken
by the other States with which that State (the Respondent in the case at hand) would need to have
negotiated, …in order to achieve the overall goal of nuclear disarmament’. Judge Xue adopted a
congruent approach, and distinguished the disagreement between non-nuclear weapon states and
nuclear weapon states from the existence of a dispute. On the contrary Judge Crawford construed
the aforementioned conceptualisation of a dispute as a limiting principle and aimed to
accommodate the multilateral trends within the existing juridical framework.

The judgment has streamlined a dangerous trend in international law by increasing the threshold
for admissibility of a dispute and by crystallising a standard without any legal basis. In the Separate
Opinion, Judge Sebutinde stated that the awareness test has increased the evidentiary burden on
the applicant and has done so without any jurisprudential or statutory basis.68 This has a
catastrophic effect as no guidelines or criteria for establishing the subjective element have been
laid down. This also contributes to rendering justice and judicial adjudication inaccessible. While
there is a dispute that has unfolded before the ICJ, the ICJ has remained reluctant in addressing it.
The judgment acknowledged the suffering the people of Marshall Islands have endured ‘as a result
of it being used as a site for extensive nuclear testing programs’ and accepted that Marshall Islands
‘has special reasons for concern about nuclear disarmament’.69 In his dissenting opinion Judge
Cancado Trindade stated that ‘in my perception, it unduly creates a difficulty for the very access
to justice (by applicants) at international level, in a case on a matter of concern to the whole of
humankind. This is most regrettable’

16
Marshall Islands v. India (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and
to Nuclear Disarmament) [2016] ICJ GL No 158 (Dissenting Opinion of Judge Crawford) para 20.

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6 CONCLUSION
Although caution must be exercised in attributing a policy to the International Court of Justice, it
is difficult not to see the Marshall Islands judgments as part of a longer trend of the Court using
formalistic reasoning to decline cases concerning nuclear weapons.

The Marshall Islands judgments rely on a fresh pretext: that there was no dispute between the
applicant and the respondent states, because it could not be established that the latter were “aware,
or could not have been unaware” of the dispute. The Marshall Islands had not done enough to
bring the “opposition of views” to their notice. In this respect, a few points are worth noting.
Thereafter, the essay focuses on the Court’s function in nuclear weapons cases, in view of the
shape taken by nuclear governance in recent years.

“Mahatma Gandhi himself condemned the atomic bombings in Japan, declaring that “The only
weapon that can save the world is non-violence.” On April 2, 1954, Prime Minister Nehru
responded to tests of hydrogen bombs by calling upon the United States and the Soviet Union to
conclude a “standstill agreement” on further tests pending progress in disarmament. India
presented this proposal to Secretary-General Dag Hammarskjöld a few days later.”

While one may argue that the disarmament of nuclear weapons is also “general practice” in the
context of the “principles of humanity”, this is a case of trying to force a member-State of the
United Nations to abide by a treaty, specifically the “Non-Proliferation Treaty” (NPT). This is
illegal and any signing would amount to duress which would make the treaty null. First, we cite
Article 34 of the 1969 “Vienna Convention On The Law Of Treaties”

This is fairly straight forward as the ICJ cannot force India to abide by the NPT without its consent.
While the argument may be that the ICJ should force India into entering negotiations in “good
faith” towards disarmament, no progress can be made in the actual disarmament nor can the court
force India to negotiate as that is a breach of sovereignty.

Clearly, requesting the courts to force India to negotiate without any mandate from the
international community is an intervention into the external affairs of the nation in violation of
Article 2 of the United Nations Charter.

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 MARSHALL ISLANDS V. INDIA

The situation may be different if the United Nations or its bodies had a mandate drafted for India
for this specific purpose but none exists till this day. There are only resolutions encouraging
member-States to join the NPT and disarm nuclear weapons. Even when Kosovo declared
independence from Serbia with the United Nations mandate but Serbia refused to negotiate until
the ICJ rendered its opinion on the matter.

In addition, the court will not have the proper jurisdiction to hand down a verdict on this matter as
it relates to national defence. Observing Judge Ignacio Pinto’s statement from the nuclear case at
the ICJ; the Court “has no right to hand down a decision against a State which by a formal
declaration excludes its jurisdiction over disputes concerning activities connected with national
defence”.

It is also worthy to mention India was the first country to call for a ban on nuclear testing in 1954!
India even participated in the negotiations for the Comprehensive Nuclear Ban Test Treaty. This
is not to mention the decades long negotiations India has promoted in nuclear disarmament
according to the Permanent Mission of India to the United Nations. As we can see, India has a
long history of involvement in the disarmament of nuclear weapons and as late as 2006, voted in
favour of nuclear disarmament at the United Nations General Assembly and participating in the
Committee for Nuclear Disarmament.

So, for the ICJ to dictate to India that it must participate in negotiations, it would have to keep
India’s national interests in mind and surely it will not be the authority to legislate India’s interests.
Furthermore, India has been willing and is ready to negotiate.

Every forced negotiation has had a mandate by the concerned body, either regional or international.
In this case, there is simply no mandate by the international community calling upon India to enter
negotiations for nuclear disarmament and the ICJ as the opinion juris of the nuclear case at the ICJ
has been realised through India’s willingness to negotiate and previous negotiations.

The right of India to maintain nuclear weapons also has to do with its national defence strategy
with regards to the neighborhood of the world it is in, surrounded by nuclear powers. Perhaps most
importantly, the ICJ may not have the proper jurisdiction as well according to the judiciary which
presided over the case of evidence itself.

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BIBLIOGRAPHY

 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 1
para 105 (2) F.
 Legality of the Threat or Use of Nuclear Weapons (Declaration of President Bedjaoui)
[1996] ICJ Rep 1 para 23.
 Surabhi Ranganathan, ‘Nuclear Weapons and the Court’ (2017) 111 American Journal of
International Law Unbound 88.
 Nico Krisch, ‘Capitulation in The Hague: The Marshall Islands Cases’ EJIL:TALK!
https://www.ejiltalk.org/capitulation-in-the-hague-the-marshall-islands-cases/
 https://www.theguardian.com/world/2016/oct/06/marshall-islands-nuclear-arms-lawsuit-
thrown-out-by-uns-top-court
 "LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS."International
Court of Justice. . Web. <http://www.icj
cij.org/docket/index.php?sum=498&code=unan&p1=3&p2=4&case....
 "Statute Of The International Court of Justice." International Court of Justice, n.d. Web.
<http://www.icj-cij.org/documents/?p1=4&p2=2>.
 http://www.southasiaanalysis.org/node/1622
 http://www.icj-cij.org/en/case/158

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