By Jacqueline Cabasso

The recent Nuclear Security Summit hosted by President Obama in Washington, DC generated a goodly amount of hype, including some well-deserved criticism of its narrow focus on securing civilian highly enriched uranium (HEU) and other modest, voluntary steps aimed at preventing terrorists from acquiring weapons-useable nuclear and radiological materials. The Summit was silent on the huge stocks of HEU and plutonium in military programs and the more than 15,000 existing nuclear weapons possessed by States, including the Summit’s host – the only country that has used nuclear weapons in war.

Another kind of nuclear security summit took place last month in The Hague, as the tiny Pacific nation of the Marshall Islands took on three nuclear-armed giants before the highest court in the world. Hubris and hypocrisy on one side, courage and vision on the other were on global display.

In April 2014, the Republic of the Marshall Islands (RMI) initiated proceedings in the International Court of Justice (ICJ) against all nine nuclear-armed nations, the United States, Russia, the United Kingdom, France, China, India, Israel, Pakistan and North Korea, contending that each of them 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.

Regrettably, only three of the nine would-be defendants – the UK, India and Pakistan – accept the compulsory jurisdiction of the Court. The other six declined the RMI’s invitation to defend their records on nuclear disarmament. Oral proceedings in the three separate cases were held 7 – 16 March, 2016. While these proceedings were limited to preliminary objections, the merits were in plain view.

In his opening observations in the case against India, Phon van den Biesen, Co-Agent for the RMI and lead attorney for its international legal team, noted that “the elimination from national armaments of atomic weapons and all other weapons of mass destruction” was  called for in the very first resolution of the United Nations, and he lamented: “It’s a shame that the other six nuclear-armed States have decided that, for them, there was no need to respond to the Marshall Islands’ Applications of 24 April 2014.”

This was particularly true in the case of the United States, which from 1946 – 1958 conducted 67 nuclear weapons test explosions over the Marshall Islands, the equivalent of 1.7 Hiroshima-sized bombs daily for 12 years. Birth defects never seen before and other radiation-related health effects continue to plague the Marshallese people. Describing his own experience, Tony deBrum, former Foreign Minister and Co-Agent for the Marshall Islands told the Court that in March 1954, as a nine-year old child fishing with his grandfather, he witnessed the entire sky turn “blood red” as a result of the 15-megaton Bravo test 200 miles away. “While these experiences give us a unique perspective that we never requested, they are not the basis of this dispute,” he said. “But they do explain why a country of our size and limited resources would risk bringing” the cases.

Article VI of the NPT requires States parties 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.” The UK is a founding member of the NPT, which entered into force in 1970. The Marshall Islands joined the Treaty in 1995 as a non-nuclear-weapon State. India and Pakistan have refused to join the NPT, calling it a discriminatory two-tier treaty. In its 1996 Advisory Opinion on Legality of Threat or Use of Nuclear Weapons, the ICJ, referring to Article VI and the long history of UN General Assembly resolutions on nuclear disarmament, unanimously found: “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.” The RMI contends that this opinion recognized an obligation binding on all states, not only NPT members, as a matter of customary international law.

Pakistan withdrew from participation in the oral pleadings at the last minute, declaring it had nothing to add to its written submission. However, the RMI did make an opening presentation in the Pakistan case, responding to Pakistan’s written arguments.

During the hearings, the UK and India claimed 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 (declaratory relief and within one year of the Judgement, the pursuit of negotiations in good faith aimed at the conclusion of a convention on nuclear disarmament under strict and effective international control) would be ineffective; and that various exceptions to their declarations accepting the jurisdiction of the Court apply, excluding jurisdiction.

In his opening preliminary objections for the UK, Sir Daniel Bethlehem asserted that there “is no dispute” between the RMI and the UK: “We agree with the objective at the heart of their Application, namely, that more should and must be done towards the objective in Article VI of the Non-Proliferation Treaty (NPT) to pursue negotiations in good faith on effective measures towards nuclear disarmament.  We also acknowledge our obligation under Article VI of the NPT, in common with all the other NPT parties.  This case should never have reached the Bar of the Court.”

“Indeed,” Sir Daniel continued, “the United Kingdom had thought, although naively, as it now appears, that we had a strong record on nuclear disarmament,” concluding, “This is an artificial case.” A ruling by the Court against the UK, he argued, could force the United Kingdom to “be the one hand clapping” for good faith nuclear disarmament negotiations among the five nuclear-armed NPT signatories.

Phon van den Biesen countered for the RMI: “The standard against which the conduct of the United Kingdom needs to be tested in this case is not ‘less’ or ‘more’, but is whether or not the United Kingdom is ‘pursu[ing] in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control’. The United Kingdom is not engaged in just this, on the contrary, it is explicitly opposed to such negotiations.”

The appearance of the UK’s legal team, wearing powdered wigs and gowns, only added to the impression of arrogance on their part. In contrast, Tony deBrum exuded gravitas and authenticity. In response to the UK he described the “very genuine nature” of his country’s claims and its motivation. Citing the RMI’s written submission in the 1995 nuclear weapons case before the ICJ, he quoted Lijon Eknilang, a woman from Rongelap Atoll: “[W]omen on the island have given birth to babies that look like blobs of jelly.  Some of these things we carry for eight months, nine months.  There are no legs, no arms, no head, no nothing.  Other children are born who will never recognize this world or their own parents.  They just lie there with crooked arms and legs and never speak.  Already we have seven such children.”

DeBrum described the significance of the NPT to the Marshall Islands: “The RMI eagerly joined the NPT in 1995 as a non-nuclear-weapon State and in return received the binding legal promise of the States parties to the Treaty, including the UK.  The fact that the obligation is multilateral does not immunize the United Kingdom from a legal action based on its own conduct.” He added: “We heard in oral pleadings from the United Kingdom that a hypothetical order requiring it to comply with its obligation to pursue in good faith such negotiations would force it to be the ‘one hand clapping.’  So the point we take from that is that the United Kingdom’s position is that no hands, including its own, are clapping — or negotiating — yet.” And he concluded: “Given what the Marshall Islands knows first-hand about these weapons, how could it not bring this legal dispute to this Court?”

Responding for the UK, Sir Daniel condescendingly recalled his own reaction to hearing Lijon Eknilang’s testimony in 1995. “It was the most affecting testimony that anyone could hear…. No one who heard that testimony, or who read it, or who is aware of the legacy of nuclear weapons, whether used in anger or in experiment, could fail to recognize and to endorse, and to take to heart to pursue the injunction towards good faith negotiations on effective measures of nuclear disarmament that is found in Article VI of the NPT.”

Reciting a long list of India’s public statements, since 1964, and votes on disarmament resolutions in the UN General Assembly, India argued it is fully aligned with the Marshall Islands on the need for disarmament. India rejected the Marshall Islands allegation that India’s conduct is “clear evidence of India’s ongoing breach of the obligation regarding cessation of the nuclear arms race.”

Like the UK, India argued that it has no dispute with the RMI and that the cases cannot proceed without other states possessing nuclear arms being before the Court. India also claimed exceptions, including self-defense, to its declaration accepting the jurisdiction of the Court. India additionally emphasized the obvious point, fully acknowledged by the RMI, that as a non-member of the NPT, it is not subject to Article VI as a treaty obligation. India did not squarely accept a nuclear disarmament obligation under customary international law.

In his opening statement in the case against India, Tony deBrum underscored the importance his country places on the rule of law. Noting that the Marshall Islands, with a population of under 70,000 people is dwarfed by India, with more than 1.2 billion people, he explained: “Before this Court, however, and as a member State in the United Nations, the Marshall Islands stands as an equal. To a very small country, the rule of international law, and the equality of all States under such law, cannot be overstated and is acutely significant.  The Marshall Islands rely on that rule of law before this Court.”

Amandeep Singh Gill, Co-Agent for India, and other members of India’s legal team repeatedly insisted that India, alone among the nuclear-armed states, is fully committed to global nuclear disarmament. Only India, they said, co-sponsors the annual UN General Assembly resolution, “Follow-up to the advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons.” Reciting a long list of India’s public statements since 1964 and votes on disarmament resolutions in the UN General Assembly, India argued it is fully aligned with the Marshall Islands on the need for disarmament. Curiously, India’s Co-Agent claimed: “Among the nuclear weapons states, India’s nuclear program is unique in being technology driven rather than weapons driven.” In a stunning example of Orwellian doublespeak, he stated: “Even when India declared itself a nuclear-weapon State in 1998, India’s commitment to nuclear disarmament, a basic tenet of its foreign policy, was reiterated at the highest level solemnly in parliament and in the United Nations General Assembly.”

The huge gap between India’s lofty disarmament rhetoric and the reality of its commitment to nuclear weapons was revealed during the course of the proceedings. As Phon van den Biesen told the Court (quoting from a news story in the New Indian Express): “On the first day that India, before this Court, was publically criticized for not acting in good faith in relation to its obligation to pursue negotiations towards nuclear disarmament, India ‘conducted a test of its home grown intermediate range Submarine Launched Ballistic Missile – secretly from an undersea platform in the Bay of Bengal’…. [O]ne is tempted to call this ‘contempt of Court’ simply because naming this an ‘unfortunate coincidence’ would be grossly understating the meaning of this event.”

He continued: “The newly developed missile is the ‘best in the world in its class and it’s faster and stealthier’ and it is ‘capable of delivering a two tonne [nuclear] warhead up to a distance of 3,500 kilometers’…. [T]his provides some additional evidence in support of the Marshall Islands and also it provides some context for India’s pleadings of last Thursday, in which it claimed, ‘it is ironic, indeed perverse, that India should be here at this tribunal in this manner to speak about its commitment to nuclear disarmament’.”

Reciting a long list of India’s public statements, since 1964, and votes on disarmament resolutions in the UN General Assembly, India argued it is fully aligned with the Marshall Islands on the need for disarmament. India rejected the Marshall Islands allegation that India’s conduct is “clear evidence of India’s ongoing breach of the obligation regarding cessation of the nuclear arms race.”

The hearings generated a fair number of news stories in the mainstream international press. Unfortunately, most of them included some variant of language used by the New York Times in a 27 March 2016 editorial: “Though no one expects the court to force the nuclear states to disarm, a verdict against them could increase pressure on them to exercise more restraint.” On the contrary, the Marshall Islands fully expects that the respondent states would comply with judgments on the merits, in accordance with their legal obligation under the UN Charter, Article 94(1): “Each member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.”

The indomitable courage of the Marshall Islands in bringing the cases was evident throughout the hearings. That spirit was captured when, following the UK’s 14 March presentation, in the hallway outside the courtroom, Tony deBrum was overheard quoting from Patrick Henry’s famous “Give Me Liberty Or Give Me Death” speech: “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger?”

The RMI’s courageous deed has engendered worldwide support. The RMI was brilliantly represented in the ICJ by a team of international lawyers from the Netherlands, Italy, the UK, New Zealand and the U.S.  Eight Nobel Laureates, dozens of prominent persons, legal scholars, and more than one hundred organizations have joined the “Nuclear Zero” consortium in support of the Marshall Islands. And well over five million individuals around the world have signed the “Nuclear Zero” petition.

The ICJ is expected to issue rulings in three to six months. If the Court rules in favor of the RMI, the cases will proceed to the merits; if the Court rules against the RMI in any case, that case will be over.


Jacqueline Cabasso is the Executive Director of the Western States Legal Foundation. She attended the 7 – 16 March hearings at the International Court of Justice in The Hague.