Vol. 37 Executive Editor
Vol. 36 Associate Editor
On April 24, 2014, the Republic of the Marshall Islands (RMI) filed applications against all nine nuclear-armed nations in the International Court of Justice (ICJ), alleging violations of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).[i] The RMI also filed suit against the United States in U.S. Federal District Court, which was tentatively dismissed on January 16, 2015.[ii] Despite this dismissal, it still remains to be seen what will happen in the ICJ.
The RMI has firsthand knowledge of the effects of nuclear weapons. Between 1946 and 1954, the United States tested sixty-six nuclear bombs on RMI atolls.[iii] The nuclear tests have had both immediate and long-lasting consequences for the Marshallese. The radiation affected every island in the Marshall Islands chain. In fact, the radiation from one test bomb alone was so great that it affected every continent in the world.[iv] The Marshallese suffered not only immediate physical ailments as a result of the radiation, but also long term health problems as they continued their tradition of living off of the land and ocean, not realizing or being informed that doing so subjected themselves to radiation.[v] Within a few years of the tests, some Marshallese were even resettled by the United States government onto islands that had served as testing sites, despite the high levels of radioactivity and contamination that lingered.[vi]
The United States, however, was not alone in developing nuclear weapons, and the Marshallese were not the only people to be directly affected by nuclear testing. After the United States dropped the first atomic bombs on Hiroshima and Nagasaki in 1945,[vii] the Soviet Union was the next country to test nuclear weaponry in 1949, followed by the United Kingdom in 1952, France in 1960, and China in 1964.[viii] As countries began building up their nuclear arsenals, the international community began discussions on how to address the existence and proliferation of nuclear weapons and devices.
The United Nations General Assembly passed a resolution in 1946 that sought the “elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.”[ix] In 1963, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water, also known as the Partial Test Ban Treaty (PTBT), was presented, “seeking to achieve the discontinuance of all test explosions of nuclear weapons for all time… and desiring to put an end to the contamination of man’s environment by radioactive substances.”[x] Several years later, in 1968, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was opened for signature and entered into force on March 5, 1970.[xi] 182 states are parties to the NPT.[xii]
The NPT creates obligations for both nuclear-weapon states and non-nuclear weapon states.[xiii] Since nuclear-weapon states were defined as countries “which [have] manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967,”[xiv] the provisions for nuclear-weapon states apply only to the United States, the Soviet Union, the United Kingdom, France, and China.[xv] The treaty prohibits each nuclear-weapon state from transferring any nuclear weapons or nuclear explosive devices to any recipient or “assist[ing], encourag[ing], or induc[ing]” non-nuclear weapon states in manufacturing or acquiring nuclear weapons or nuclear explosive devices.[xvi] Likewise, non-nuclear weapon states are prevented from receiving nuclear weapons or nuclear explosives from any party and cannot seek or receive assistance in producing nuclear weaponry or explosives.[xvii]
In addition, Article VI requires all 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.”[xviii] The ICJ clarified the Article VI requirement in its 1996 Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons stating: “The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects…”[xix] Even further, the General Assembly has expressed the importance of the NPT parties’ fulfillment of their obligations undertaken in the treaty, particularly under Article VI.[xx] As the NPT indicates, the international aspiration is to cease the production of nuclear weapons, liquidate existing stockpiles, and eliminate nuclear weapons from national arsenals.[xxi]
Today, the RMI is pushing to hold the nuclear-weapon states accountable. In its applications to institute proceedings against the nuclear nations, submitted to the ICJ, the RMI claimed that the United States, Russia, the United Kingdom, France, and China have failed to meet their obligations to disarm under the Nuclear Non-Proliferation Treaty.[xxii] The RMI argues that the signatory countries breached their Article VI obligation to pursue good faith negotiations leading to nuclear disarmament because of their refusal to begin multilateral negotiations with the goal of nuclear disarmament and their implementation of policies that encourage nuclear proliferation.[xxiii] In addition, the RMI believes that by engaging in the modernization of nuclear forces and quantitatively building up their nuclear arsenals, the countries have breached their obligation to pursue good faith negotiations to cease the nuclear arms race at an early date.[xxiv] The RMI accuses the countries of failing to perform their obligations under the Treaty by “effectively preventing the great majority of non-nuclear weapon states from fulfilling their part of those obligations.”[xxv] And although Israel, India, Pakistan, and North Korea are non-signatory countries, the RMI argues that they are still liable under customary international law.[xxvi]
If the lawsuits are dismissed, the ICJ would be sending a message to the international community: sustaining, modernizing, and continuing to develop one’s existing nuclear weapons is allowable under the NPT while, at the same time, failure to abide by the NPT is not a violation of customary international law. This could set a dangerous precedent, particularly since several non-signatory countries have already begun to build their own nuclear weapons, and in light of the clear plans of signatory countries, like the United States, to expand their nuclear arsenals.[xxvii] Admittedly, because of the existence and threat of nuclear weapons, it is unrealistic to expect complete disarmament in the foreseeable future. However, if the lawsuit before the ICJ are dismissed, the result will be that the smaller and less developed countries like the RMI will be powerless against the nuclear-weapon states and thus disadvantaged in the weapons race and in the international arena.
Whatever happens at the ICJ, these lawsuits are significant. The mere act of bringing these suits is symbolic from a humanitarian perspective because of the history of the RMI and nuclear testing. It is clear from statements made by the Foreign Minister of the RMI, Tony deBrum, that the RMI’s continued problems dealing with the effects of the 1946-1958 nuclear testing are a large motivation behind filing the lawsuits.[xxviii] As deBrum stated: “Our people have suffered the catastrophic and irreparable damage of those weapons, and we vow to fight so that no one else on Earth will ever again experience these atrocities.”[xxix] Filing in the ICJ has allowed the RMI to refocus international attention on the dangers of nuclear weaponry and its proliferation, and at this point in time, perhaps keeping the conversation alive is realistically the most that can be done.
[i] See NAPF Press Office, Pacific Nation Challenges Nine Nuclear-Armed States in Lawsuits Before the World Court, Nuclear Age Peace Foundation (Apr. 24, 2014), http://www.wagingpeace.org/pacific-nation-challenges-nine-nuclear-armed-states-in-lawsuits-before-the-world-court/.
[ii] See Bob Egelko, Judge Tentatively Dismisses Marshall Islands Suit Against U.S. Over Nuke Treaty, SFGate Blog (Jan. 15, 2015, 3:07 PM), http://blog.sfgate.com/stew/2015/01/15/judge-tentatively-dismisses-marshall-islands-suit-against-u-s-over-nuke-treaty.
[iii] See Zohl de Ishtar, Nuclear Proliferation: Poisoned Lives, Contaminated Lands: Marshall Islanders Are Paying a High Price for the United States Nuclear Arsenal, 2 Seattle J. Soc. Just. 287, 288 (2004).
[iv] See Holly M. Barker, Bravo for the Marshallese: Regaining Control in a Post-Nuclear, Post-Colonial World 21 (2004).
[v] Id. at 51-56.
[vi] Id. at 44-48.
[vii] Application Instituting Proceedings Against the United States of America (Marsh. Is. v. U.S.) ¶ 19 (Apr. 24, 2014), available at http://www.wagingpeace.org/documents/us_application.pdf [hereinafter U.S. Application].
[ix] G.A. Res. 1(I), at 9, U.N. Doc. A/RES/1/I (Jan. 24, 1946).
[x] Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water preamble, Aug. 5, 1963, 14 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43.
[xi] U.S. Application, supra note 6, at ¶ 21.
[xii] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, ¶100 (July 8).
[xiii] See Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 [hereinafter NPT].
[xiv] Id. at art. 9.
[xv] U.S. Application, supra note 7, ¶ 20.
[xvi] NPT, supra note 13, at art. 1.
[xvii] Id. at art. 2.
[xviii] Id. at art. 6.
[xix] Legality, supra note 12, at ¶ 99.
[xx] Id. at ¶ 103.
[xxi] NPT, supra note 13.
[xxii] NAPF Press Office, supra note 1.
[xxvii] See DeNeen L. Brown, Protesters Rally Outside White House, Demanding ‘Total Elimination’ of Nuclear Weapons, The Washington Post (Jan. 31, 2015), http://www.washingtonpost.com/news/local/wp/2015/01/31/protesters-rally-outside-white-house-demanding-total-elimination-of-nuclear-weapons.
[xxviii] See Tyler Hayden, Feds Look to Quash Nuclear Treaty Lawsuit, Santa Barbara Independent (July 28, 2014), http://www.independent.com/news/2014/jul/28/feds-look-quash-nuke-treaty-lawsuit/.
[xxix] Id. See also Giff Johnson, Thinking Locally Before Acting Globally, Pacific Politics (Apr. 2014), http://pacificpolitics.com/2014/05/thinking-locally-before-acting-globally/ (quoting deBrum: “We do this lawsuit with the greatest respect and greatest admiration for the big countries of the world, but we think it must be done. As small as we are, we have a story to tell, we have an experience to share, and we have the motivation to pursue it to its just and peaceful end.”).