Before “Bikini” became the name of a piece of female attire, it was the name of an atoll, part of the 1,156 islands and islets making up what is now the Republic of the Marshall Islands (RMI). In 2010, at RMI’s request, Bikini was added to UNESCO’s World Heritage List because of its historic importance as the site of twenty-three nuclear tests conducted by the United States between 1946 and 1958. There were sixty-seven US tests in the Marshall Islands altogether.
Now RMI has invoked the aid of another UN agency: the International Court of Justice in The Hague (not to be confused with the International Criminal Court). Last April, in an extraordinary and commendable act of chutzpah, RMI sued all nine states currently possessing nuclear weapons—the United States, the United Kingdom, Russia, China, France, India, Pakistan, Israel and North Korea—accusing them of violating their duty to negotiate in good faith for the elimination of those horrific weapons.
The theory of the case is based on three distinct but overlapping principles. Under the Nuclear Non-Proliferation Treaty (NPT) of 1968, each party “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.” The 1996 advisory opinion of the ICJ in the nuclear weapons case asserted that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament.” The addition of the words “and bring to a conclusion” was important and made clear that just negotiating, without reaching a specific objective, was not enough. Customary international law also supports the legal obligation to eliminate nuclear weapons.
In some ways the NPT obligation, being treaty based, is the strongest arrow in RMI’s bow. But there is a small problem: four of the accused states (India, Israel, Pakistan and North Korea) are not members of the NPT. The obligation proclaimed by the ICJ and that flowing from customary international law are applicable to every country in the world. But there is another problem: of the nine accused states, only three—India, Pakistan and the UK—are subject to the compulsory jurisdiction of the ICJ. (The United States, which was a great promoter of the ICJ in its early years, renounced compulsory jurisdiction in 1985 while the case involving military and paramilitary operations against Nicaragua was pending).
RMI has asked the other six states to submit voluntarily to the court’s jurisdiction, but it remains to be seen whether any of them will do so. In the three cases actually pending, India and Pakistan have advised the court that they intend to file objections, and the UK is expected to follow suit. At this point it is not known exactly what the objections are or will be, but it stands to reason that the court will have to be satisfied that there is a genuine legal dispute between the plaintiff state and the defendants in order to proceed. In this respect RMI can argue that, as a member of the international community, it has the right and duty to enforce an obligation of fundamental and universal importance. It can also argue that, given the planetary consequences of a nuclear war, it can be adversely affected by such a war, no matter where it takes place.