Oral hearings on the preliminary phase of the nuclear disarmament cases brought by the Marshall Islands against India, Pakistan and the United Kingdom took place at the International Court of Justice in The Hague from 7-16 March. Members of the World Future Council have been involved in this unprecedented legal action since its launch in 2014 and some were present during the oral arguments at the Court. This Q&A, created by the Nuclear Peace Foundation, explains the cases.
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.