In an intriguing case, the Marshall Islands—a Pacific Island nation of about 68,000 people—filed suit in the International Court of Justice at the Hague yesterday against the world’s nine nuclear-armed nations over their failure to work toward eliminating these weapons. A separate U.S. federal lawsuit was also filed in a court in San Francisco against President Barack Obama, the secretaries of defense and energy, and the National Nuclear Security Administration.
The Marshall Islands were the site of 67 U.S. nuclear tests in the 12 years following World War II, including the famous 1954 Hydrogen Bomb test at Bikini Atoll. Some of the islands are still unlivable. “Our people have suffered the catastrophic and irreparable damage of these weapons, and we vow to fight so that no one else on earth will ever again experience these atrocities,” Marshallese Foreign Minister Tony de Brum said yesterday.
The suit is based on Article VI of the 1968 nuclear Non-Proliferation Treaty, or NPT, which obligates its parties 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.”
The Marshallese argue that the nuclear-armed states have not made these good-faith efforts. In an interview with Slate, Laurie Ashton—one of the American attorneys representing the country in the suit—said that measures such as the New START Treaty, under which the United States and Russia agreed to reductions of their nuclear arsenals, don’t pass muster.
“Reducing certain categories of arms does not satisfy the obligation to cease the nuclear arms rate,” she said. “If you’re reducing certain categories of your arms while you are modernizing and creating weapons in other categories, you’re still arms racing. Secondly, the Non-Proliferation Treaty calls for good-faith negotiations on complete nuclear disarmament, and the United States as refused to even call for such negotiations.”
The suit was filed in coordination with an activism campaign supported by a number of NGOs, but Ashton says the suit is more than just a means of raising awareness. “It’s legally grounded,” she says. “It’s a matter of treaty law, which in the United States is both an international obligation and a domestic obligation under the supremacy clause.”
The suit will still face a number of tough legal obstacles. Sovereign immunity may protect the U.S. government from such a suit in its own courts, though Ashton points out that the Marshall Islands isn’t seeking compensation, simply for the court to “interpret the treaty and decide whether [the U.S.] is in compliance or not.”
Five of the countries named in the suit—the United States, Russia, the United Kingdom, France, and China—are signatories to the NPT. But four of them—India, Pakistan, North Korea, and Israel (which has never publicly disclosed its nuclear weapons)—are not. Nonetheless, the suit argues that the obligation to disarm is part of “customary international law,” which applies to countries whether they signed the treaty or not.
Then there’s the issue of the ICJ’s jurisdiction. In most cases, countries must agree to recognize the court’s jurisdiction in a given case. Of the parties named in this suit, only Britain, India, and Pakistan recognize the compulsory jurisdiction of the court meaning that it can in theory be subject to any suit brought by another country that accepts the same obligation—the Marshall Islands in this case.
Hofstra international law scholar Julian Ku, who is generally skeptical of the lawsuit, wrote on his blog yesterday that it could have its greatest chance of producing a result with the United Kingdom, a country which is both a party to the NPT and recognizes the jurisdiction of the court. The U.K. may, at the very least, be required to come into court to present the case for why it isn’t in violation of the NPT.
While the suit seems unlikely to end in any country being compelled to disarm, it will at the very least highlight the fact that while existing nuclear powers frequently invoke international law to argue for why countries like Iran shouldn’t have nuclear weapons, they tend to gloss over the other part of the deal—that they will work to fully eliminate their own arsenals.
There are arguments to be made for why these efforts have not taken place, but the world’s nuclear powers should at least have to articulate them.
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