Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes Again in the Marshall Islands Case

Abstract

My very first publication, admittedly written in a language that many AJIL Unbound readers might be unable or unwilling to read, was an essay on the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its effects vis-à-vis third parties. Already back then, I found it difficult to justify how an international treaty could rubber-stamp such a highly uneven state of affairs. The overt acknowledgement of the discrimination between nuclear and nonnuclear states, the hypocrisy about “unofficial” nuclear states, and the Article VI obligation for nuclear states to negotiate effective measures of disarmament, largely ignored in the first twenty years of the treaty, were all elements that contributed to my perception of unfairness, if not blatant injustice. As a young researcher approaching international law with the enthusiasm of the neophyte, however, this looked like a little anomaly in an otherwise fair and equitable international legal order. It did not set off warning bells about the system as such. After all, international law was geared, at least in my eyes, towards enhancing the wellbeing of humanity. It must have been so. And it is not that I leaned particularly on the idealistic side; it seemed normal to me … at the time.