The Nuclear Zero Lawsuits

Katherine Maddox Davis
Thursday, March 31, 2016, 12:21 PM

As the fourth Nuclear Security Summit gets underway, a nuclear sideshow quietly plods along. The Marshall Islands’ ten-part legal offensive against states which possess nuclear weapons, launched in April 2014, is finally proceeding beyond initial filings.

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As the fourth Nuclear Security Summit gets underway, a nuclear sideshow quietly plods along. The Marshall Islands’ ten-part legal offensive against states which possess nuclear weapons, launched in April 2014, is finally proceeding beyond initial filings.

The Marshall Islands brought their self-titled “Nuclear Zero Lawsuits” against each of the nine nuclear weapons states before the International Court of Justice, and additionally against the United States in the U.S. District Court for the Northern District of California.

The Marshall Islands interest derives from its painful nuclear history. The United States, having gained military control of the Marshall Islands from Japan in 1944, tested nuclear weapons on the islands in the 1940’s and 1950’s. The testing caused mammoth devastation, and the United States made extensive reparations. The Marshall Islands is now sovereign, though it conducts foreign relations pursuant to the 2004 Amended Compact of Free Association with the United States.

While the Nuclear Zero Lawsuits represent an emotional stance by the Marshallese, the legal grounds are shaky at best. But the lawsuits could be consequential. The federal suit may revive an old practice of taking treaty breaches to U.S. courts. And the ICJ suits could prompt multiple major powers to withdraw from the ICJ’s compulsory jurisdiction, trimming the court’s legitimacy.

The Marshall Islands claim that nuclear weapons states breached the Nuclear Nonproliferation Treaty (NPT) by not undertaking “good faith” pursuits toward nuclear disarmament negotiations. In the more curious cases against India and Pakistan—both non-parties to the NPT—the Marshall Islands asserts that the NPT obligations for good faith disarmament negotiations rise to the binding level of customary international law and obligations erga omnes. Those claims derive from an attenuated read of the ICJ’s 1996 advisory opinion on the legality of the threat or use of nuclear weapons.

A federal district judge in Oakland granted the United States’ motion to dismiss in February 2015. The Marshall Islands appealed to the Ninth Circuit and briefs were filed later in the year. Oral argument is yet to be scheduled. As I’ve written elsewhere, the domestic suit, while likely destined for failure, is savvier than it might initially appear.

Meanwhile, in the Hague, cases were docketed against the United Kingdom, India, and Pakistan—the only nuclear weapons states which submit to the ICJ’s compulsory jurisdiction. Predictably, the United States, Russia, China, France, North Korea, and Israel did not accept invitations to submit to the Court’s jurisdiction for this case. The submitting states challenged the ICJ’s jurisdiction and the admissibility of the Marshall Islands’ claims. The ICJ heard oral argument earlier this month and will issue its rulings “in due course.” I’ve previously noted why these cases lack merit and may ultimately harm the ICJ’s legitimacy.

While we wait to hear from the ICJ and the Ninth Circuit, the legal claims and procedural idiosyncrasies are worth parsing.

Seeking Understanding

As the United States hosts this week’s NSS, some of its guests arrive in Washington wary of American exceptionalism in international relations, especially in public international law. And unhelpfully, some American commentators are quick to opine on international law without appreciating nuanced procedure.

For example, Fortune recently published a piece asserting that the ICJ suits could bring the United States and India closer. But that article was misleading as to both the nature of the suits and their potential for success, and missed the larger unfolding international relations story. That piece ignored the United Kingdom's and Pakistan’s near-identical circumstance to that of India.

Comparing the American and Indian experiences in a vacuum, the Fortune article made no mention of the Marshall Islands’ suit in federal court, nor did it distinguish that no case was filed in Indian court. Likewise, the New York Times published an editorial discussing the Marshall Islands’ ICJ litigation without acknowledging the pending case in our own courts. And contrary to the Fortune article claims, India and the United States are not similarly situated before the ICJ. India cannot simply "refuse the suit," as the author suggests, because unlike the United States, India submits to the ICJ's compulsory jurisdiction. That is why India has filed a methodical counter-memorial and participated in oral arguments.

Rather than confuse the conversation with irrelevant commentary, the legal arguments and consequences of Nuclear Zero Lawsuits are worth getting right.

ICJ Legal Claims

The Marshall Islands’ ICJ complaints allege breaches of the NPT Article VI, obligations erga omnes, and customary international law. The domestic complaint in California alleged only treaty breach.

Without reaching the merits, the ICJ claims may be barred by the 1954 Case of the Monetary Gold Removed from Rome in 1943. This case—concerning Nazi gold—established the seminal principle that the ICJ lacks jurisdiction to resolve a claim between states when one of the states is not a party. Here, the Monetary Gold bar would seem to apply where cases against six nuclear weapons states were never docketed and the treaty at issue prescribes collective action. The Marshall Islands counter the Monetary Gold argument by citing Certain Phosphate Lands in Nauru, which held that the Monetary Gold principle does not bar ICJ jurisdiction when non-party states’ legal interests are peripheral to the subject matter of a case.

But if the cases are not dismissed on jurisdictional grounds, here are the claims.

The Nuclear Nonproliferation Treaty, Customary International Law and Obligations Erga Omnes

The NPT article at issue states, “[e]ach of the Parties to the Treaty 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, and on a treaty on general and complete disarmament under strict and effective international control.” The Marshall Islands appears to conflate “good faith” pursuits with successful nuclear disarmament. The plain language of Article VI calls only for the former, though anything short of the latter seems insufficient for the island nation.

The Marshall Islands hope to pin the United Kingdom as an NPT party. But by the Marshall Islands’ logic, the NPT language binds even non-parties. Again, because India and Pakistan are not parties to the NPT, the Marshall Islands was left to cast abstract legal obligation on them. Because no written law binds the South Asian states, the Marshall Islands strove to capitalize on the unwritten tradition of customary international law.

Customary international law (CIL) exists where a majority of states conform with a practice and intend to be bound by it. States which persistently dissent from a custom are exempt from liability, unless the principle rises to an obligation erga omnes—from which no state can dissent.

The Marshall Islands now attempts to seize the 1996 ICJ advisory opinion to bootstrap up to a formidably high bar. Through the advisory opinion, the Marshall Islands assert that the NPT Article VI obligations are not only CIL, but rise to an obligation erga omnes. The Marshall Islands aim to extract conclusions that do not exist.

The advisory opinion, issued at the request of the United Nations General Assembly, was largely inconclusive. The General Assembly asked whether international law permitted the threat or use of nuclear weapons. The entirety of the ICJ’s unanimous finding was a direct Article VI quote: “[t]here 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 Court did not state that the obligation amounted to CIL. To the contrary, the Court noted that neither CIL nor treaty law addressed the threat or use of nuclear weapons; likely because of non-uniform state practice.

The assertion that an erga omnes violation can be construed through mere implication is unfounded, and the CIL claim is nearly as weak. If the claim was correct, it would mean a state could come to the World Court and argue that some unwritten legal preference of theirs was binding on the world at large—an absurd result.

Procedural Nuance Before the ICJ and in United States Court

Even submitting to the ICJ’s Optional Clause for compulsory jurisdiction, the United Kingdom, India, and Pakistan have a chance to dispose of their cases for lack of jurisdiction. As long ago as 1946, states submitted declarations when submitting to the ICJ’s Optional Clause. These declarations articulate carve-outs to a state’s jurisdictional submission. Historically popular carve-outs exclude disputes more appropriately within a state’s domestic jurisdiction, or disputes over multilateral treaties when not all treaty members are party to the dispute.

The United Kingdom, India, and Pakistan each have an Optional Clause declaration on file. Each declaration could arguably block the Marshall Islands’ claims. The declarations are fleshed out in the states’ preliminary arguments now before the ICJ. If the ICJ finds jurisdiction and the states disagree, they would not be the first to withdraw from the ICJ’s compulsory jurisdiction.

In U.S. federal court, some might presume that sovereign immunity bars the Marshall Islands’ claims. However, sovereign immunity is inapplicable because the Marshall Islands seeks no money damages. On appeal, the issues before the Ninth Circuit include political question doctrine, judicially manageable standards for treaty breach determination, standing, venue, and the availability of declaratory relief independent of injunctive relief. I posit that even a loss in this case could inspire nuanced legal strategies for other treaty parties seeking declaratory relief on American treaty obligations.

Looking Forward

Contrary to the claims of Fortune Magazine, when it comes to the Nuclear Zero Lawsuits, the compelling international relations narrative is whether this litigation may prompt the United Kingdom, India, and/or Pakistan to withdraw from the ICJ's compulsory jurisdiction. France and the United States withdrew decades earlier under similar circumstances. Because India and the United Kingdom are the only major powers currently submitting to the ICJ's compulsory jurisdiction, their withdrawals would weaken the ICJ's legitimacy. The litigation’s net worth does not justify the prospective harm to the ICJ.

These prospects present all the more reason to seek understanding and get the facts right. As leaders enter the Nuclear Security Summit, here’s to hoping they do just that.

Katherine Maddox Davis is a lawyer. She earned her law degree from Emory University, where she was Editor-in-Chief of Emory International Law Review and an ICTY intern in The Hague. Davis began studying nuclear proliferation while earning a master’s degree in Contemporary India at Oxford University. Prior to graduate school, she earned a Political Science degree from Auburn University and worked for attorneys in Kolkata.

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