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“Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament”

Marshall Islands v. United Kingdom; Marshall Islands v. India; Marshall Islands v. Pakistan

March 7 – 16, 2016; The Hague

What is the source of the International Court of Justice’s legal authority?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in 1945 by the UN Charter. The seat of the Court is at the Peace Palace in The Hague, Netherlands. The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized UN bodies and agencies. The Court’s 15 judges are elected by the UN General Assembly and the Security Council.

Which countries are the Marshall Islands suing, and why?

The Republic of the Marshall Islands (RMI) has a unique and devastating history with nuclear weapons. From 1946 – 1958 the United States conducted 67 nuclear weapons test explosions over the Marshall Islands, the equivalent of 1.7 Hiroshima-sized bombs daily for 12 years. Castle Bravo, the largest bomb ever tested, was 1000 times more powerful than the Hiroshima bomb. Birth defects never seen before and other radiation-related health effects continue to plague the Marshallese people.

On April 24, 2014 the RMI filed individual Applications in the ICJ instituting proceedings against the nine nuclear-armed States: the U.S., Russia, the UK, France, China, India, Israel, Pakistan and North Korea. The RMI contends that each of these States is in breach of its obligations under the Nuclear Non-Proliferation Treaty (NPT) and/or customary international law to end the nuclear arms race and to engage in negotiations on nuclear disarmament.

Article VI of the NPT states: “Each of the Parties to the Treaty undertakes 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 UK is a founding member of the NPT, which entered into force in 1970. The U.S., Russia, France and China are also nuclear-armed members of the NPT; nuclear-armed India, Israel, Pakistan and North Korea are not. The RMI joined the Treaty in 1995 as a non-nuclear-weapon State and in turn received the binding legal promise of the States parties to the Treaty, including the nuclear-armed States.

In a 1996 Advisory Opinion, the ICJ issued an authoritative interpretation of Article VI and recognized a parallel customary international law obligation, concluding unanimously: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” This Opinion is not limited to NPT members; it applies to all States.

No negotiations on nuclear disarmament have ever been initiated and all of the nuclear-armed states are currently engaged in programs to modernize and qualitatively improve their nuclear arsenals, with an eye toward their indefinite retention. India and Pakistan are also engaged in quantitative arms racing.

Why were hearings held only in the cases of the UK, India and Pakistan?

At this time, only the UK, India and Pakistan – among the nuclear-armed states – accept the compulsory jurisdiction of the ICJ. The other nuclear-armed states were invited to respond to the Applications submitted by the RMI. China declined; the others did not respond.

What was the scope of the hearings?

This stage of the cases was limited to preliminary objections. The UK and India claimed that they have strong records of support for nuclear disarmament, arguing therefore that there is no dispute for the Court to adjudicate. The RMI countered that actions speak louder than words, citing the UK’s consistent record of voting against nuclear disarmament resolutions in the UN General Assembly and its plans to replace its Trident nuclear weapons system. With respect to India and Pakistan, the RMI cited programs underway for expansion, improvement and diversification of their nuclear arsenals. The UK and India also argued that the cases cannot proceed without other states possessing nuclear arms being before the Court; that the relief requested would be ineffective; and that various exceptions to their declarations accepting the jurisdiction of the Court apply, excluding jurisdiction.

Pakistan withdrew from participation in the oral pleadings at the last minute, declaring it had nothing to add to its written submission.

What will happen next?

The ICJ will issue separate rulings in each case, probably within three to six months. If the Court rules in favor of the RMI, the cases will move to the merits phase and more written arguments and hearings will be scheduled. If the Court rules against the RMI in any case, that case will be over.

What relief is the Marshall Islands seeking?

The RMI is asking the Court to declare that the UK is in violation of its obligations under Article VI of the NPT and customary international law by failing to pursue in good faith negotiations leading to nuclear disarmament, by taking action to qualitatively improve its nuclear weapons system and to maintain and modernize for the indefinite future, and by failing to pursue negotiations that would end nuclear arms racing. The RMI also requests the Court to order the UK to take all steps necessary to comply with its obligations under Article VI of the NPT and under customary international law within one year of the Judgement, including the pursuit of negotiations in good faith aimed at the conclusion of a convention on nuclear disarmament under strict and effective international control.

The RMI is asking the Court to declare that India and Pakistan are in violation of their obligations under customary international law, by failing to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament, by failing to pursue negotiations on cessation of the nuclear arms race, and by engaging in the quantitative buildup and qualitative improvement of their nuclear forces to maintain them for the indefinite future, contrary to the objectives of nuclear disarmament and cessation of the nuclear arms race. The RMI also requests the Court to order India and Pakistan to take all steps necessary to comply with its obligations under customary international law with respect to cessation of the nuclear arms race at an early date and nuclear disarmament within one year of the Judgement, including the pursuit of negotiations in good faith aimed at the conclusion of a convention on nuclear disarmament strict and effective international control.

The RMI is not seeking monetary compensation in these cases.

Where can I get more information?

A. General information about the cases is available at: nuclearzero.org. Written submissions by the RMI, UK, India and Pakistan, and verbatim records of the oral pleadings are posted at http://www.icj-cij.org/docket/index.php?p1=3&p2=3 Videos and photos from the oral pleadings are posted at www.icj-cij.org/multimedia.

Contact:
Rick Wayman
+1 805 696 5159
rwayman@napf.org

Sandy Jones
+1 805 965 3443
sjones@napf.org

16 March 2016

THE HAGUE – The International Court of Justice (ICJ) today concluded the oral arguments in the preliminary phase of the nuclear disarmament cases brought by the Republic of the Marshall Islands (RMI) against India, Pakistan and the United Kingdom. The hearings, which took place at the ICJ from 7-16 March, were the first contentious cases on nuclear disarmament ever heard at the Court. This set of hearings addressed the respondent nations’ objections to the cases relating to questions of jurisdiction and admissibility.

Tony de Brum, Co-Agent and former Foreign Minister of the RMI, recounted to the Court the Marshall Islands’ unique perspective about the effects of nuclear weapons due to 67 U.S. nuclear weapons tests conducted in its territory from 1946-58. In a stunning moment at the opening of the hearing against Pakistan on 8 March, Mr. de Brum had the full attention of the entire courtroom. He said:

Yesterday was a beautiful morning here in The Hague that featured a picture-perfect snowfall. As a tropical State, the Marshall Islands has experienced “snow” on one memorable and devastating occasion, the 1954 Bravo test of a thermonuclear bomb that was one-thousand times the strength of the Hiroshima bomb. When that explosion occurred, there were many people, including children, who were a far distance from the bomb, on our atolls which, according to leading scientists and assurances, were predicted to be entirely safe. In reality, within 5 hours of the explosion, it began to rain radioactive fallout at Rongelap. Within hours, the atoll was covered with a fine, white, powdered-like substance. No one knew it was radioactive fallout. The children thought it was snow. And the children played in the snow. And they ate it.

The Marshall Islands was clear that while their history with nuclear testing gives context to their current actions for global nuclear disarmament, the cases at the ICJ relate specifically to nuclear-armed states’ breaches of Article VI of the Non-Proliferation Treaty and/or customary international law.

Phon van den Biesen, Co-Agent of the Marshall Islands, expressed disappointment that there were not nine respondent nations present for this round of hearings. Only India, Pakistan and the United Kingdom accept the compulsory jurisdiction of the ICJ. Mr. van den Biesen said, “It is a shame that the other six nuclear-armed States [United States, Russia, France, China, Israel and North Korea] have decided that, for them, there was no need to respond to the Marshall Islands’ Applications of 24 April 2014.”

All three respondent nations – India, Pakistan and the UK – claimed in written and/or oral pleadings that they are supportive of nuclear disarmament and that they agree with the Marshall Islands about the need for a nuclear weapons-free world. The Marshall Islands presented specific examples of behavior in direct contrast to such aspirational claims.

Most telling, perhaps, was India’s decision to test-fire nuclear-capable missiles on two days on which the ICJ was hearing the case against it. On both 7 and 14 March, India tested ballistic missiles, an act that Phon van den Biesen, Co-Agent of the Marshall Islands, suggested could be called “contempt of court.”

The United Kingdom, for its part, told the Court that if it ruled against the UK in this case, it would be forced to be the “one hand clapping” among the nuclear-armed states calling for nuclear disarmament negotiations. On 11 March, responding to the UK’s statement, Tony de Brum said, “This is another way of saying that, to the UK, no parties are pursuing in good faith such negotiations. Or, put differently still, it is like the person who, caught in poor conduct, replies: ‘Everybody’s doing it.’”

Pakistan chose not to attend the oral hearings, telling Judge Ronny Abraham, President of the ICJ, in a letter, “The Government of Pakistan does not wish to add anything further to its statements and submissions made in its Counter-Memorial and therefore does not feel that its participation in the oral proceedings will add anything to what has already been submitted through its Counter-Memorial.”

In his concluding remarks, Tony de Brum said, “In its 1996 Advisory Opinion, this Court observed that nuclear weapons ‘have the potential to destroy all civilization and the entire ecosystem of the planet’. The Marshall Islands has come before this Court because of its belief in, and reliance upon, the rule of law.”

In its final submissions to the Court, the Marshall Islands asked the judges to adjudge and declare that the Court has jurisdiction over the claims of the Marshall Islands submitted in its Applications of 24 April 2014, and that the claims are admissible.

The 15 judges of the ICJ, along with judge-ad-hoc Mohammed Bedjaoui, will now deliberate on jurisdiction and admissibility issues raised in the written and oral pleadings. The Court will announce its decisions in a public sitting at a date to be announced.

For more information about these ICJ cases in a detailed Question and Answer format, click here.

Contact information for the International Legal Team:

Phon van den Biesen, Co-Agent of the RMI
Attorney at Law at Van den Biesen Kloostra Advocaten, Amsterdam http://vdbkadvocaten.eu/en/phon-van-den-biesen-en/
+31.65.2061266
phonvandenbiesen@vdbkadvocaten.eu

A complete list of the International Legal Team as well as information on the lawsuits can be found at www.nuclearzero.org. The California-based Nuclear Age Peace Foundation is consultant to the Republic of the Marshall Islands.