In what will be one of the more historic developments in the agonising saga of nuclear disarmament, the Marshall Is. has stunned the world by laying charges against nine countries for not fulfilling their obligations with respect to the cessation of the nuclear arms race at an early date and to nuclear disarmament.
This is an application for contentious case, not a request for an advisory opinion.
What the World Court (ICJ) will make of the charges will prove secondary to the fact that the charges have simply been laid. It forces the international community to confront the obvious – the intrinsic truth that is contained in the charges. That is because of the clawing difference that exists between self-evident fact, the application of imperfect law, and the dodge-and-weave of political statecraft. All will get a hearing.
Every so often, above the grinding minutiae of disarmament diplomacy, there rises a seminal moment of change. This is one, among the few.
– Bilaterally, there has been the advent of nuclear weapons in 1945, the onset of deterrence theory and the nuclear arms race (MAD) in the early ‘50s; the shift to hair-trigger alert with ballistic missiles in the early ‘60s, the failed flirtation with ballistic missile defence of the ‘80s; and the reduction in numbers of offensive weapons since the ‘90s (from some 60,000 to 17,000 today).
– Multilaterally, there has been the failed attempt to place nuclear weapons under international control in 1946, the successful NPT curbing their spread in ’68, the ICJ advisory opinion declaring them to be ‘generally contrary to international law’ in ’96 – and now this.
The Applicant state distinguishes between the three countries that have accepted compulsory jurisdiction (UK, India & Pakistan), and the other 6 that have not. And within that, it makes a sub-distinction between the 5 states that are parties to the NPT (US, UK, Russia, France, China) and the 4 that are not (India, Pakistan, DPRK, Israel). That is enough for some glorious legal complexities.
It may well be that the Court declines to assert its jurisdiction over the case. That will be the easy way out. But it will be difficult in the case of the UK which has accepted compulsory jurisdiction. There is, as always, a loophole: the UK entered a reservation against any state that has adopted compulsory jurisdiction for the purposes of a specific case. Although the Marshalls became a party to the Court a decade ago, it only accepted compulsory jurisdiction one year and one day before lodging the case.
So, it will be a true test of British character.
And it may even be difficult for India and Pakistan which, while not being parties to the NPT, nonetheless carry significant obligations in customary international law (CIL); indeed the Applicant contends that NPT’s Article VI obligations exist today in CIL.
Specifically in the case of the UK, the Applicant contends that it has breached, and continues to breach, its legal duty to perform its obligations under the NPT. It does this by ‘not actively pursuing 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 might argue that the ‘nuclear arms race’ has effectively ceased. But it cannot credibly argue that it has actively pursued negotiations on nuclear disarmament – the Applicant accuses it of opposing UNGA resolutions calling for negotiations to begin, and repeatedly declaring its intention to rely on its nuclear arsenal for decades to come.
Similar complexities attend to the other states. An issue of specific interest will be the Applicant’s contention that Israel is a nuclear weapon state, and / or Israel’s denial. It is of passing significance that in its Application, the Marshalls has laid the charges against ‘nine states’, not labelling them ‘nuclear-weapons states’.
But even if the Court does not accept jurisdiction, there will be enough court theatre preceding such a decision for the legitimate political objective to be achieved. And if jurisdiction is denied, that will speak eloquently, if shamefully, about the state of traditional international law (mid-20th century style) as it confronts modern political imperatives (21st-century style).
New Zealand should associate itself with (‘intervene in’) the Marshall Islands initiative, and be prepared to argue a supporting case at the World Court. In the 1970s, it worked with Australia on French testing in the Pacific, and again in the ‘90s over the advisory opinion on the illegality of nuclear weapons. Just this year, it associated with Australia at the Court over Japanese whaling. This is tailor-made for New Zealand action.
Down here, we tend to think we are pure on nuclear disarmament, with our nation zone legislation and nuclear-armed ship ban. But our policy integrity is not total; we have, even since the heady Lange days, voted at the UN against certain resolutions calling for nuclear disarmament measures, simply on the grounds of their provenance (some member states whose political credentials we may disapprove of).
We do better with regard to the movement of the past decade relating to a nuclear weapons convention. The Marshall Is. initiative and the nuclear weapons convention go hand-in-hand. The initiative is an opportunity to move more purposefully on the Convention (whose basic elements exist but not yet a specific draft).
New Zealand should respond, positively and with purpose.