Marshall Islands and Pakistan

The case has no basis

On 8 March, 2016, Marshall Islands, a cluster of small islands in Pacific, faced off against United Kingdom of Great Britain, Pakistan and India in International Court of Justice (ICJ), to get a ruling, obliging these states to ‘fulfill their obligations with respect to the cessation of the nuclear arms race and to nuclear disarmament’.

Marshall Islands had filed a lawsuit against nine nuclear weapons states in ICJ on 25 April, 2014, for failing to fulfill their obligations of eliminating their nuclear arsenals. The filing of the simultaneous nine applications related to the same matter of ‘halting nuclear arms race and to nuclear disarmament’, though it distinguished between states recognising ICJ’s jurisdiction and others that did not. Moreover, it also made a distinction between states which are signatories of NPT and others that are not. Since only India, United Kingdom and Pakistan recognise the jurisdiction of ICJ, MRI invoked Article 36 Paragraph 2 of the Statute of Court, to bring cases against these countries in ICJ.

Presenting his opening remarks in the oral proceedings in the case against Marshall Islands v Pakistan, Mr deBrum, Co-Agent for the Republic of the Marshall Islands, shared his experience of ‘Snow on one memorable and devastating occasion,’ the result of the Bravo test of thermonuclear bomb conducted by United States of America in 1954, with its catastrophic repercussions for the islanders in the form of radiological fallout and contamination. Invoking Article 33 of the United Nations, he claimed Marshall Islands was entitled to seek ‘judicial settlement’ to its dispute with Pakistan, alleging that Pakistan was in breach of customary international law with respect to negotiations for nuclear disarmament and arms race. He pleaded before ICJ to determine whether Pakistan was fulfilling its legal obligations ‘to negotiate in good faith disarmament and an end to nuclear arms testing.’

As Pakistan had made known through its Co-Agent in its letter, dated 2 March, 2016, to the Court that it would not be a part of the oral proceedings, it is, however, worth highlighting the main arguments against participating in the court proceedings. These arguments are, in essence, the succinct reiteration of its Counter-Memorial submitted to ICJ in December, 2015. The letter states, “The case brought up by RMI (Republic of Marshall Islands) does not fall within the scope of those specific issues over which Pakistan recognises ICJ’s jurisdiction,’ thus seeking the dismissal of the case. Moreover, it asserts, “Pakistan’s nuclear programme is a matter of its national defence and security which falls exclusively within domestic jurisdiction and therefore not to be called into question….” The letter claims Pakistan does not have any dispute, let alone a legal one, with MRI. In addition, it’s a basic principle of international law that both parties should consent to the court’s jurisdiction prior to the beginning of proceedings. In this case, Pakistan does not recognise the jurisdiction of ICJ. Nor is Pakistan a member of NPT, Article VI of which MRI invokes to build up its legal case against nuclear weapons states not fulfilling their obligations to nuclear disarmament and arms race.

That the lawsuit will have no significant impact on nuclear disarmament is true, because only three of the nine states named by MRI in the case, abide by ICJ’s rulings. Furthermore, how does usually court react to security issues, in this case nuclear issues, that some states term as impugning on their genuine rights of national defence and security? Even if the court does pass a ruling, it does not have the authority to enforce it. As Pakistan rightly points out in its letter to ICJ that if MRI invokes Article VI of NPT to make its legal case but is unable to bring most of the nuclear weapons states signatory to the Treaty to the court, MRI’s pleading before ICJ to nuclear weapons possessors ‘to pursue negotiations in good faith on effective measures relating to cessation of nuclear arms race and to nuclear disarmament’ becomes extremely weak.

As states await the ruling of ICJ, it is important to understand the significance of the case in the context of what Avner Cohen calls ‘the politics of nuclear disarmament’. The lawsuit reflects a fledging movement to link nuclear disarmament to humanitarian issues and make efforts to materialize that vision. In 2010, the NPT Review Conference final document touched upon the humanitarian consequences of nuclear weapons. The momentum generated by it got a fresh impetus when Conference on the Humanitarian Impact of Nuclear Weapons, was held in Oslo in 2013, highlighting the negative and destructive power of nuclear weapons on environment, economy and human beings. Unsurprisingly, none of the nuclear powers attended it. Thus, terming the lawsuit in ICJ as an attempt to keep the momentum and revitalise the discourse by inextricably linking it with humanitarian issues would not be far off the mark. The recurring use in the legal proceedings of phrases like ‘breaching of the customary international law’ clearly hints at attempts to bring NPT, which is not currently considered a part of international customary law, at par with it. If the ICJ comes with a ruling in its support, it would further buttress its credentials.

The greatest strength of the case emanates from Marshall Islands’ own experience with catastrophic consequences of nuclear tests. From 1946 to 1958, Marshall Islands, then a trusty territory of USA, sustained 67 US atmospheric nuclear weapons tests, making hundreds of people to flee Bikini and Enewetak atolls, radiological fallout and contamination affecting thousands more. Six thermonuclear weapons tests, also known as Castle Series, were conducted in MRI between March 1 and May 14, 1954, totaling nearly 48 megaton of explosives. Robert Alvarez of Institute of Policy Studies says that the radioactive releases of Bravo bomb, the 15-megaton thermonuclear bomb, were more than the radioactive iodine released by Fukushima and Chernobyl accidents combined. The humanitarian initiative of the part of MRI has much to do with its own experience of having borne the brunt of US nuclear and biological weapons tests.

Notwithstanding Pakistan’s recognition of ICJ’s – though not in this case– and the supposed humanitarian initiative of MRI, the case can never have any significant impact if all other nuclear weapons states, both NPT and Non-NPT states, are not included in the overall process of ‘disarmament’. As alluded to before, MRI builds its case on Article VI of NPT, of which Pakistan is not a part nor is it obliged to abide by it. Furthermore, Pakistan is situated in a region beset with regional tension and hostility and nuclear weapons offset its adversary’s conventional force edge. So it is not just a matter of whether ICJ has jurisdiction or not, this issue is inextricably intertwined with state security and defence. Until and unless all the nuclear weapons states, including the one that wreaked catastrophe on a small cluster of islands in Pacific, are held accountable for their failure to fulfill their obligations to NPT and other international obligations, the whole talk of disarmament and humanitarian initiative will be pursuing a mirage.