Marshall Islands sues nine nuclear powers at International Court of Justice for breaching disarmament obligation

by Yumi Kanazaki, Staff Writer

The Marshall Islands, a Pacific nation that has suffered from damages caused by nuclear tests performed by the United States from 1946 to 1958, sued the nine nuclear powers on April 24 at the International Court of Justice (ICJ), located in The Hague, the Netherlands. The Marshall Islands is asking that the ICJ rule that, under international law, these countries are in breach of the obligation to eliminate their nuclear arsenals, and requested, too, that the ICJ demand that the nuclear powers commence negotiations leading to the early conclusion of a convention on nuclear disarmament. The move is an unprecedented legal action, with suits brought against the nuclear weapon states in connection with nuclear disarmament.

Separately, the Marshall Islands has sued the nine nuclear powers, including the United States, Russia, France, the United Kingdom, and China, which are parties to the Nuclear Non-Proliferation Treaty (NPT); India, Pakistan, and Israel, which possess nuclear weapons outside the NPT regime; and North Korea, which has repeatedly conducted nuclear tests. The Marshall Islands also filed a similar lawsuit against the United States in the U.S. federal court system.

The complaints recount the current state of these nations, including how they are putting vast sums into modernizing their nuclear arsenals, and emphasize that the United States, Russia, and other nations are in breach of their nuclear disarmament obligations under the NPT. The complaints also argue that these nuclear disarmament obligations have now been established as customary international law so that all states, including those refusing to join the NPT, have the obligation to pursue nuclear disarmament.

Among the nine countries, however, six, including the United States and Russia, do not recognize compulsory jurisdiction, which obliges states to accept lawsuits. This means it is unlikely that the suits filed by the Marshall Islands will be accepted by these nations. The focus will be on the countries that recognize compulsory jurisdiction, namely the United Kingdom, India, and Pakistan.

The United States carried out 67 nuclear tests in the Marshall Islands. The damage done to the health of island residents, as well as the contamination of the environment, are still serious. Frustrated by the scant progress in nuclear disarmament, the Marshall Islands decided to file lawsuits to coincide with the 60th anniversary of the hydrogen bomb test at Bikini Atoll, in which the Daigo Fukuryu Maru (“The Lucky Dragon No. 5”), a Japanese fishing boat, was also exposed to radioactive fallout. The Marshall Islands is not demanding compensation in these lawsuits.

The lawsuits are being spearheaded by Tony de Brum, foreign minister of the Marshall Islands, as well as the members of the International Associations of Lawyers Against Nuclear Arms (IALANA) and other anti-nuclear NGOs. Mr. de Brum said, “No one else on earth should ever experience the sort of tragedy we did, but nuclear weapons still continue to exist.”

Significant legal discussion

Toshinori Yamada, a board member of IALANA and a lecturer in international law at Meiji University, commented: “The U.K. and other nations will probably try to avoid the lawsuits, referring to the conditions that they attached when they accepted compulsory jurisdiction and so on. There may be people who question the benefit of filing lawsuits at the ICJ. I understand there are high hurdles from the outset, but it is significant that legal deliberations on nuclear weapons will take place at the ICJ.”

Comment: Is NPT still valid?

by Yumi Kanazaki, Staff Writer

The Marshall Islands, a nation with a population of about 50,000 people, has resorted to legal action against nuclear powers which hold a total of 17,000 warheads. The Nuclear Non-Proliferation Treaty (NPT) permits five nuclear weapon states, including the United States and Russia, to possess nuclear weapons for the time being but imposes on them the obligation to pursue nuclear disarmament. This obligation, however, has been virtually ignored. Before the Preparatory Committee meeting for the NPT Review Conference, which opens on April 28 to assess the implementation of the treaty, the move by the Marshall Islands is designed to raise questions about the validity of the NPT.

In the complaints, the Marshall Islands has asked that the International Court of Justice (ICJ) adjudge and declare that the nine states are violating their obligations. It also requested that the ICJ order the states to commence negotiations aimed at the conclusion of a convention on nuclear disarmament. The Marshall Islands may refer to a nuclear weapons convention, which is also advocated by non-nuclear weapon states, A-bomb survivors, and various NGOs that are frustrated by the NPT regime and are emphasizing the humanitarian consequences of nuclear arms to call for nuclear disarmament.

With regard to nuclear weapons, the ICJ issued an advisory opinion in 1996, saying that the threat or use of nuclear weapons would generally be contrary to the rules of international law and that there exists an obligation for nuclear weapon states to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament. The ICJ also said that this applies, as customary international law, to the countries that are not parties to the NPT.

The U.S. and U.K. lawmakers, among others, who led civil society in obtaining the advisory opinion from the ICJ are also among the attorneys of the lawsuits filed by the Marshall Islands. Based on the outcomes of the past 18 years, they are attempting to make a step forward toward the abolition of nuclear weapons.

Hiroko Takahashi, a lecturer at Hiroshima City University’s Hiroshima Peace Institute, has met Tony de Brum, foreign minister of the Marshall Islands, which filed the lawsuits. She said, “I was impressed to see that the foreign minister himself was collecting an enormous number of documents from the United States to illuminate the damages. The international community is now paying less attention to this matter. By filing these lawsuits, the Marshall Islands is asking us not to forget what happened there.”

The Marshall Islands reportedly carried out preparations for these lawsuits over the past year and a half in strict secrecy in order to avoid any interference. The Nuclear Age Peace Foundation, a U.S. NGO, is playing a leading role to support the lawsuits. David Krieger, president of the NGO, said emphatically, “A nation whose economy depends heavily on the United States has shown its courage. I would like to see other countries follow suit.” The A-bombed nation, as well as the cities of Hiroshima and Nagasaki, must give serious consideration to how they will respond to this development.

(Originally published on April 26, 2014)