By Jessie Baker
From the 1940s through to the late 1950s, the Marshall Islands, a small string of islands in the South Pacific, was the nuclear arms testing site for the United States. This was a central testing site for the Americans as the Cold War started heating up and the devastation that took place is still remembered by those living on the islands today. In total, there were 67 nuclear tests that took place mainly on the atolls of Bikini and Enewetak, with a particularly devastating failed test in March and April of 1954 known as Operation Castle, which led to massive contamination. The former Marshall Islands foreign minister Tony deBrum remembers seeing the tests being completed and recalled “[t]hat the sky turned blood red.” Because of these tests, several islands have “vaporized,” while “others are estimated to remain uninhabitable for years.” Due to the devastation that the Marshall Islands has endured and witness through the years, they have been on the forefront of nuclear arms activism and remedying the ecological harm that is done by these weapons.
The Nuclear Non-Proliferation Treaty
The Nuclear Non-Proliferation Treaty (Treaty) was entered into in 1970 and 190 countries have since subscribed to the Treaty, meaning that they intend to abide by the Treaty and holds others accountable to both the standards and consequences of the Treaty. The Treaty “covers three mutually reinforcing pillars—disarmament, nonproliferation, and peaceful uses of nuclear energy.” Ultimately, the whole point of the Treaty is that “[c]ountries with nuclear weapons will move towards disarmament; countries without nuclear weapons will not acquire them; and all countries can access peaceful nuclear technology.”
Additionally, nuclear arms have consistently been on the minds of international judicial actors. Back in 1996, the ICJ released a non-binding advisory opinion stating “that the use of threat to use nuclear weapons would ‘generally be contrary to’ the laws of war and humanitarian law.”
Due to the Marshall Islands activism in preventing the spread of nuclear arms, the Island brought suit under the International Court of Justice insisting compliance with the Treaty by the signatories. Initially, hoping that this case could force nuclear powers to disarm, the Marshall Islands brought suit against the United Kingdom, the United States, Russia, France, China, India, Pakistan, Israel, and North Korea in April 2014. The Marshall Islands sought to “hold the nine nuclear-armed states accountable for violations of international law under the 1968 Nuclear Non-Proliferation Treaty and customary international law.” Additionally, “[t]he relief requested is a declaratory judgment of breach of obligations relating to nuclear disarmament and an order to take, within one year of the judgment, all steps necessary to comply with those obligations, including the pursuit, by initiation if necessary, of negotiations in good faith aimed at the conclusion of a convention on nuclear disarmament in all its aspects under strict and effective international control.”
However, the Marshall Islands were dealt their first blow because only three of those countries actually recognized The Hague-based International Court of Justice, the remaining countries opted to not respond to the lawsuit brought by the Marshall Islands. Consequently, Pakistan, India, and the United Kingdom were the only parties that remained in the suit.
The next blow came when the Marshall Islands attempted to establish jurisdiction for the ICJ to hear the case. Under the International Court of Justice, in order for the court to have jurisdiction, a party must establish that the parties have an existing dispute. However, India argued that the parties were all on the same side when it came to nuclear disarmament, and by India actively attempting to comply with the Treaty that established a lack of dispute between the parties regarding nuclear disarmament and Treaty compliance. Noting that there was not a dispute between India and the Marshall Islands, the court in a 9-7 decision found that the court had no locus standi to allow for the case to go forward. Holding that the same was true for both Pakistan and the United Kingdom, as well, the Court ultimately dismissed the case for lack of a preexisting dispute amongst the parties.
Given that this highly contentious case was decided on procedural grounds, it is unlikely that this is the last we will hear of it. Marshall Islands has publicly noted that they are reconsidering all their options and are disappointed in the ruling. While the Court may have found that the Marshall Islands does not in fact have a dispute with the parties, there may be other parties in the future that are willing to take on the fight to enforce the Nuclear Non-Proliferation Treaty. Only time will tell.
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 Marshall Islands Nuclear Arms Lawsuit Thrown Out by UN's top Court, The Guardian, https://www.theguardian.com/world/2016/oct/06/marshall-islands-nuclear-arms-lawsuit-thrown-out-by-uns-top-court (Oct. 5, 2016).
 World Court Rejects Marshall Islands Case on Nuclear Disarmament Against India, Pakistan, UK, Devirupa Mitra, The Wire, http://thewire.in/71148/icj-world-court-marshall-islands-india-nuclear-disarmament/ (Oct. 5, 2016).