Marshall Islands sues nuclear nations on multiple fronts



 Worldwide nuclear disarmament has been a goal of much of the international community since the end of World War II. However, the countries that currently possess nuclear arms, known as the “Nuclear Nine,” have been reluctant to move forward with nuclear disarmament.[1] Non-nuclear countries have typically failed to bring about any change in this area.[2] However, the Republic of the Marshall Islands (“Marshall Islands”) recently filed separate actions against each of the Nuclear Nine in the International Court of Justice (“ICJ”).[3] These actions could potentially compel the progress of nuclear disarmament.

Nuclear testThe U.S. tested dozens of nuclear weapons in the Marshall Islands.
 
The Marshall Islands were in a unique position to file these actions, given that the archipelago of 1156 islands was used for nuclear weapon tests by the United States from 1946 until 1958.[4] At least sixty-seven nuclear tests were conducted on various islands in the chain over this period of time.[5] The U.S. government did not consult with any of the indigenous population before carrying out these tests.[6]

In April 2014, the Marshall Islands filed actions in the International Court of Justice (“ICJ”) against the United States and the eight[7] other nations that possess nuclear arms.[8] The actions focus mainly on the Nuclear Nine’s alleged failure to “fulfill the obligations of customary international law with respect to cessation of the nuclear arms race and nuclear disarmament . . . [as] declared by the court.”[9] The Marshall Islands brought these actions under the ICJ’s “contentious case” jurisdiction.[10] In this type of case the ICJ has the power to make a binding judgment so long as the involved countries consent to such a decision.[11] As of 2015, only the United Kingdom has consented to a binding decision by the ICJ in these cases.[12] The U.S. government has said only that it is "examining" the Marshall Islands's filing.[13]

In 1996, the ICJ issued an advisory opinion that came to two conclusions on the issue of the possession of nuclear weapons by states.[14] First, that “nuclear weapons were only lawfully usable, if ever, if the survival of the state was credibly at issue.”[15] Secondly, that “the nuclear powers had a good faith obligation to negotiate both an end to the arms race and a disarmament plan.”[16] The international community has satisfied the first point since 1996. However, in the nearly two decades since the advisory opinion was handed down, virtually no progress has been made in satisfying the second.[17]

The Marshall Islands also filed a federal lawsuit in the Northern District of California, which alleged that the United States “breached, and continues to breach, certain obligations under the [Treaty on the Non-Proliferation of Nuclear Weapons].”[18] This allegation’s validity has yet to be tested in court, since the District Court dismissed the suit on February 3.[19] The court held that the “injury [the Marshall Islands] claims cannot be redressed by compelling the specific performance of only one nation to the Treaty.”[20] Therefore, the Marshall Islands had no standing to bring an action in the United States District Court. The Marshall Islands has appealed the ruling to the Ninth Circuit.[21]

Following that dismissal, the Marshall Islands appears to be focusing its legal resources on the ICJ and the pending cases against the Nuclear Nine.[22] Numerous amicus curiae briefs have recently been filed on the Marshall Islands’ behalf, by groups including Nuclear Watch New Mexico, the Rocky Mountain Institute, the Global Justice Center, and the Lawyers Committee on Nuclear Policy.[23] The flurry of activity may suggest that the ICJ is moving forward with the case against the United Kingdom. However, it is unclear whether the other eight countries (PDF) named by the Marshall Islands will consent to a binding decision by the ICJ.[24]

The remedial options available to the ICJ are inherently limited because the implicated countries can merely deny consent to a binding decision; it is therefore unlikely that the Marshall Islands will “win” any of these suits in the traditional sense. The Marshall Islands may be unlikely to win relief in this case, but the issue of nuclear disarmament could gain publicity from the proceedings alone. Enough publicity might push the international community to at least consider the costs and benefits of disarmament.[25] The countries that now have nuclear arms do not yet have a practically compelling reason to begin the complex and costly disarmament process.[26] Countries are loath to “relinquish nuclear weapons if they expect their own security or their allies’ security to diminish.”[27] This is a large political hurdle for a small island nation such as the Marshall Islands to solve. However, as the first state to bring this type of action against the Nuclear Nine, the Marshall Islands may once again begin to open an international dialogue that has been closed for many decades.




[1] David A. Koplow, What Would Zero Look Like? A Treaty for the Abolition of Nuclear Weapons, 45 Geo. J. Int'l L. 683, 684 (2014).
[2] Id. at 685.
[3] Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1070 (N.D. Cal. 2015); see also U.S. Judge Dismisses Marshall Islands’ Nuclear Zero Lawsuit, Nuclear Age Peace Found. (Feb. 6, 2015), http://www.wagingpeace.org/u-s-judge-dismisses-marshall-islands-nuclear-zero-lawsuit.
[4] Id.
[5] Id.
[6] Id.
[7] The Nuclear Nine are the United States, Russia, the United Kingdom, France, the People’s Republic of China (mainland China), Israel, India, Pakistan, and the Democratic People’s Republic of Korea (North Korea). E.g., Nuclear Arsenals, Int’l Campaign to Abolish Nuclear Weapons, http://www.icanw.org/the-facts/nuclear-arsenals (last viewed Sept. 20, 2015).
[8] Nuclear Age Peace Found., supra note 3.
[9] Application of Obligation to Pursue in Good Faith and Conclude Negotiations Leading to Nuclear Disarmament (India & Marshall Islands.), 2014 I.C.J. 3, ¶ 2 (April 24, 2014), available at http://www.icj-cij.org/docket/files/158/18292.pdf (PDF). “Customary international law” is roughly analogous to federal common law, having derived from the prevailing and accepted legal practices among various sovereign nation-states. Ved P. Nanda & David K. Pansius, 2 Litigation of Int’l Disputes in U.S. Courts § 9:1.
[10] Id.
[11] Id.
[12] Id.
[13] David Brunnstrom, U.S. examining Marshall Islands’ nuclear lawsuits, defends record, Reuters (Sep. 24, 2015), http://www.reuters.com/article/2014/04/25/us-usa-nuclear-marshalls-idUSBREA3O23Y20140425.
[14] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8, 1996).
[15] Id.
[16] Id.
[17] NUCLEAR AGE PEACE FOUND., supra note 3.
[18] Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1070 (N.D. Cal. 2015).
[19] Id.; NUCLEAR AGE PEACE FOUND., supra note 3.
[20] Marshall Islands v. United States, 79 F. Supp. 3d at 1072.
[21] Republic of the Marshall Islands v. United States, Case No. 15-15636.
[22] Koplow, supra note 1, at 685.
[23] See In the Courts, Nuclear Zero, http://www.nuclearzero.org/in-the-courts (last visited Sep. 20, 2015).
[24] The Republic of the Marshall Islands files Applications against nine States, Press Release (Apr. 25, 2014), available at http://www.icj-cij.org/presscom/files/0/18300.pdf (PDF).
[25] Alexander S. Rinn, A Behavioral Economic Approach to Nuclear Disarmament Advocacy, 46 Vand. J. Transnat'l L. 969, 990 (2013).
[26] Id. at 977.
[27] Id.
Posted by Nicholas D. Decker on Thu. September 24, 2015 7:53 PM
Categories: Marshall Islands, Nuclear weapons, United States, WMD   http://blogs.law.unc.edu/ncilj/2015/09/24/marshall-islands-sues-nuclear-nations-on-multiple-fronts/