Day Six Part Two: Appealing to Sentiment

By |2016-03-15T07:23:09-07:00March 15, 2016|

Yesterday afternoon, the United Kingdom completed its oral arguments in the case brought against it by the Marshall Islands at the International Court of Justice. Sir Daniel Bethlehem, Counsel for the United Kingdom, opened his pleadings on a seemingly conciliatory note. He recognized the Marshall Islands’ “special interest that is borne of an historical legacy [of nuclear weapons testing] that is not of their making, and with consequences that are shocking to us all.”

Sir Bethlehem continued: “I make these observations to underline that we take the Marshall Islands seriously and would not wish the fact of our objections to jurisdiction and admissibility to be taken for dismissiveness or a lack of regard for the issues that they raise. We are neither dismissive nor do we minimize the seriousness of the issues that they highlight.”

He quickly changed his tone, however, when he told the Court, “The relief that [the Marshall Islands] would wish from the Court does not become more consonant with the judicial function simply because it comes with an appeal to sentiment.”

Last Friday after the Marshall Islands finished its first round of oral arguments against the UK, Judge Mohamed Bennouna of Morocco asked both sides to prepare a response – to be delivered this week – about the position of each country regarding the interpretation and application of Article VI of the Non-Proliferation Treaty. Sir Bethlehem recounted many instances of the UK stating that it takes its Article VI obligations seriously and that it believes in a “step-by-step” approach to nuclear disarmament. Judge Bennouna was clear in asking each side to answer “each for its own part,” or to speak only about its own position and not to speculate on the other side’s.

Nevertheless, Sir Bethlehem engaged in lengthy speculation about what the Marshall Islands might say in its response to the question on Wednesday. Some of the 16 Judges on the bench appeared quite annoyed at his disregard for the clear order of Judge Bennouna.

In its final submissions to the Court on Monday, “The United Kingdom requests the Court to adjudge and declare that it lacks jurisdiction over the claim brought against the United Kingdom by the Marshall Islands, or that the claim brought against the United Kingdom by the Marshall Islands is inadmissible.”

The Marshall Islands will present its final oral arguments in the case against the UK tomorrow, 16 March, starting at 3:00 pm CET. The hearings can be livestreamed on the ICJ website at www.icj-cij.org.

Also tomorrow, starting at 10:00 am CET, India will present its final oral arguments at the ICJ.