Marshall Islands Sues to Enforce Nuclear Non Proliferation Treaty; UK May Be Dragged Into ICJ

by Julian Ku

This lawsuit is mostly just grandstanding by a very small nation with the help of a savvy (but sloppy) US law firm.  But there is one possibly meaningful outcome.  It could result in an ICJ proceeding involving the United Kingdom.

The tiny Pacific nation of the Marshall Islands is taking on the United States and the world’s eight other nuclear-armed nations with an unprecedented lawsuit demanding that they meet their obligations toward disarmament and accusing them of “flagrant violations” of international law.

The island group that was used for dozens of U.S. nuclear tests after World War II was filing suit Thursday against each of the nine countries in the International Court of Justice in The Hague, Netherlands. It also was filing a federal lawsuit against the United States in San Francisco, naming President Barack Obama, the departments and secretaries of defense and energy and the National Nuclear Security Administration.

Reviewing the complaint and the ICJ applications, I conclude these cases are (mostly) going nowhere.

As for the U.S. complaint, the Marshall Islands is suing both the United States itself, and its President, and various military and civilian departments.  As an initial matter, there should be grave doubts about whether the NPT is self-executing. It is hard to imagine that it is.  And there are some grave doubts as to whether the U.S. has waived its sovereign immunity for this kind of claim in its own courts. And there are a variety of other problems: standing? political question? justiciability? that will no doubt make themselves felt here.

With respect to the ICJ applications, none of the target countries have accepted ICJ compulsory jurisdiction except the UK.  Indeed, the ICJ application against China mistakenly refers to it as the “Republic of China”, which is the name of the government in Taiwan, not China. I think Taiwan would be thrilled to be sued here, since they are not even allowed to join the ICJ or the U.N.  The China they want is the “People’s Republic”.

Putting both Chinas aside, the key here is that the UK has accepted compulsory jurisdiction of the ICJ, so this might require the UK to litigate this.  This seems like the one aspect of this case that might come to a real judicial outcome.

So if we get to the merits, I am deeply dubious.   What exactly is the “obligation to negotiate in good faith”? How can you ever tell if it has been violated?  The affidavit by Prof. Weston of the University of Iowa gives some content to this idea, but I don’t find it very persuasive.  

My basic thought is that this case is going nowhere, but will get some attention of the UK is forced to show up at the Hague and argue the merits.  Only then will we get to see if Prof. Weston’s idea tested by the ICJ.

http://opiniojuris.org/2014/04/24/marshall-islands-sues-enforce-nuclear-non-proliferation-treaty-uk-may-dragged-icj/

8 Responses

  1. Hi Julian,
    I’m just looking through the documents as well, but I would note that the RMI has brought suit not just against the NPT NWS 5, but also against Israel, NK, India, and Pakistan. And that India and Pakistan have also accepted the compulsory jurisdiction of the ICJ. So it appears to me that the cases against the UK, India, and Pakistan should go forward procedurally. I blogged about this briefly earlier today at http://armscontrollaw.com/2014/04/24/marshall-islands-brings-lawsuits-against-all-nine-nuclear-weapons-possessing-states-in-the-international-court-of-justice/

  2. Actually, now that I read India’s and Pakistan’s declarations of compulsory jurisdiction, they may well be able to argue lack of ICJ jurisdiction in this case. See my short post on this here: http://armscontrollaw.com/2014/04/24/india-and-pakistan-may-successfully-argue-lack-of-the-icjs-jurisdiction-in-the-marshall-islands-case/
    That would indeed leave the UK as the last state standing.

  3. Sorry, this is my last comment for a while. After a conversation with a commenter over at my blog, I take back my last assertion about India and Pakistan being able to use the multilateral treaty exception to jurisdiction. RMI is asserting their breach not on the basis of the NPT, but on the basis of CIL. So it would appear that India and Pakistan could still be on the jurisdictional hook.

  4. On the jurisdiction issue, there are other elements that might be considered in India’s declaration.
    First, it excludes “disputes relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved;”
    Perhaps it could be argued that India’s nuclear program is an action taken in self-defence or “similar or related acts or measures”, whatever that is supposed to mean.
    Furthermore, disputes prior to Indias September 1974 delcaration are inapplicable, meaning that, perhaps, it could be argued that disputes arising from a program established before this is either partially or completely excluded.
    The UK excludes “(iii) any dispute in respect of which any other Party to the dispute has accepted the compulsory jurisdiction of the International Court of Justice only in relation to or for the purpose of the dispute; ”
    I haven’t checked whether this 2004 exception has been invoked by the UK earlier, but now would seem like a good time to test it, especially as the Marshall Islands’ claim was submitted 12 months and one day after the Marshall Islands accepted the Court’s compulsory jurisdiction, whereas the UK declaration requires the other party to accept compulsory jurisdiction 12 months earlier.
    Interestingly, the Marshall Islands seems to have anticipated such an argument from the UK by including an identical excluding provision for acceptance ” only in relation to or for the purpose of the dispute”
     

  5. In dicta the ICJ said that the UK’s reservation is appropriate to protect itself against “surprise filings”:

    In order to protect itself against the filing of surprise applications, in 1965, Nigeria could have inserted in its Declaration an analogous reservation to that which the United Kingdom added to its own Declaration in 1958. Ten or so other States proceeded in this way. (Cameroon v. Nigeria, Preliminary Objections, ¶45.)  

  6. @Dan Joyner & Erlend Leonhardsen

    India’s declaration of Compulsory Jurisdiction has several exceptions. Para 7 of the Declaration is quite clear – India will not accept jurisdiction of the ICJ concerning the interpretation of a multilateral treaty – NPT is one such treaty – unless all the parties to the treaty are also parties to the case. 
    I will try and post a detailed analysis on my blog.

  7. May I humbly suggest that you refer to the June 1983 formal Agreement Between the Government of the United States and the Government of the Marshall Islands for the Implementation of Section 177 of the Compact of Free Association was entered into (Section 177 Agreement). In that agreement, the U.S. recognized the contributions and sacrifices made by the people of the Marshall Islands in regard to the Nuclear Testing Program and accepted the responsibility for compensation owing to citizens of the Marshall Islands for loss or damage to property and person resulting from that testing.  But refuse to continue to finance the reclamations after a first payment of $150 million.   http://www.nuclearclaimstribunal.com/

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