Marshall Islands Lose Nuclear Cases

November 2016

By Alicia Sanders-Zakre

The International Court of Justice on Oct. 5 dismissed on procedural grounds the cases filed by the Marshall Islands against India, Pakistan, and the United Kingdom, the first nuclear disarmament challenges brought before the court by a state. The Marshall Islands, a group of Pacific Ocean islands and atolls, still suffers from the effects of being used for nuclear tests by the United States from 1946 to 1958.

In April 2014, the Marshall Islands filed complaints against all nine nuclear states (China, France, India, Israel, North Korea, Pakistan, Russia, the UK, and the United States). It alleged a failure to initiate nuclear disarmament negotiations in good faith, a breach of Article VI of the 1968 nuclear Nonproliferation Treaty (NPT) and of customary international law. India, Pakistan, and the UK were the only states to participate in the lawsuits because the others do not recognize the court’s compulsory jurisdiction to mediate disputes between states. 

The court held hearings on March 7-16 this year to determine if there was sufficient evidence of an international dispute to give it jurisdiction to review the merits of the cases in future hearings. India, Pakistan, and the UK denied that any dispute existed and cited strong disarmament records. 

The Marshall Islands countered that the three countries’ verbal commitments to disarmament were contradicted by their actions. It pointed to the UK’s voting record in the UN General Assembly against beginning disarmament discussions and to India’s and Pakistan’s expanding nuclear weapons programs. India test-fired a nuclear capable K-4 submarine-launched ballistic missile on March 7, the first day of the hearings.

The 16-member court upheld the arguments of the nuclear states in two 9-7 votes in the cases of India and Pakistan and in an 8-8 vote in the case of the UK, in which Judge Ronny Abraham, president of the court, broke the tie. Judge Abdulqawi Ahmed Yusuf, who voted in favor of the Marshall Islands in its UK case and against it on India and Pakistan, argued in his dissent that the UK’s obligation under Article VI of the NPT distinguished it from India and Pakistan, which are not NPT signatories. 

The UK welcomed the decision and reasserted its strong record on nuclear disarmament and commitment to working toward a nuclear-weapon-free world, a UK Foreign Office spokesman told Arms Control Today in an Oct. 13 email. The Marshall Islands in a statement deplored the gridlocked disarmament negotiations, remarking that it was “no way to honor or respond to the lesson the Marshallese people have brought the world.” 

Despite the court decisions, representatives of the Marshall Islands said the cases brought the frustratingly slow pace of disarmament negotiations to the world’s attention. “The Marshall Islands’ bringing of these cases in and of itself is significant because it squarely challenged the nine nuclear states to comply with the legal obligation to pursue and conclude negotiations on nuclear disarmament,” John Burroughs, a member of the Marshall Islands’ legal team and the executive director of the Lawyers Committee on Nuclear Policy, told Arms Control Today in a phone interview Oct. 12. Looking ahead, Burroughs recommended that the UN General Assembly request an advisory opinion from the court, akin to the one issued in 1996, that would expand on nuclear-armed states’ legal obligation to negotiate disarmament.

Two days before the ruling, efforts to jump-start nuclear disarmament negotiations commenced at the opening of the UN General Assembly First Committee on disarmament, where member states discussed beginning negotiations on a legal instrument prohibiting nuclear weapons. The push for the nuclear weapons ban has been driven by non-nuclear-weapon states participating in the humanitarian initiative movement that, like the Marshall Islands, are frustrated by stalled progress on nuclear disarmament.