The Nuclear Challenge: Relying on International Law – Marshall Islands Nuclear Zero Litigation (9)
WEAPONS OF MASS DESTRUCTION, 19 Oct 2015
Two prior posts, The Nuclear Challenge (1) & (2) address indirectly the efforts of international law and lawyers to highlight the clash between international law and nuclear weapons. In this post I combine a focus on international law with a continuation of the inquiry into the role of civil society activism that was the theme of The Nuclear Challenge (8). Here I attempt a more concrete gaze at the promise and limitations of international law as a policy instrument by which to pursue the goal of a world without nuclear weapons. The Nuclear Zero Lawsuits filed by the Republic of the Marshall Islands on April 24, 2014 offers an occasion for such an appraisal. This litigation represents both an encounter with futility and a mode of global consciousness-raising at a time of dangerous complacency about the threats posed by the continuing possession and deployment of nuclear weaponry, as well as the warping of the security mind by supposing that human security can ever be ethically and effectively safeguarded by current doctrine surrounding the roles assigned to this weaponry by the military planners and political leaders of the nine nuclear weapons states.
From the time of the atomic explosions at the end of World War II, there have been two contradictory sets of tendencies at work: the repudiation of the weaponry and its contemplated uses as ultimate criminality and the secret feverish refinement of the weaponry to enhance its precision, destructive effects, battlefield capabilities, and delivery systems. To date, the latter tendency has prevailed, but so far, belying the worst fears, avoiding uses (but not threats to use or high alert crises linked to unseemly risks of nuclear war).
From the beginning international law was a tool relied upon by those who challenged the legitimacy of both the atomic attacks themselves and the later developments and doctrines associated with the weaponry and its central role in the superpower rivalry at the core of the Cold War. In the immediate aftermath of the atomic attacks, there were many governmental pronouncements about nuclear disarmament as an imperative of human survival, and it was assumed that international law through the medium of a negotiated treaty containing procedures to assure compliance by all parties was the correct approach to unconditional declearization and principled repudiation, and this remains the consensus view of pro-disarmers at present.
Especially the UN General Assembly from the outset of the nuclear age was a political venue within which the criminality of the weaponry was confirmed, although gradually the impact of nuclear geopolitics moved disarmament off-stage and shifted policy attention to the supposedly more realistic goals of managing the nonproliferation regime and minimizing the spread of the weaponry. As discussed in previous posts, whatever political energy for a world without nuclear weaponry existed has been transferred over time to a variety of civil society venues. During the Cold War Europe, then the most likely setting for a nuclear confrontation, a variety of anti-nuclear movements emerged, with Campaign for Nuclear Disarmament (CND) being the best known, but also the German Green Party gained anti-nuclear prominence. Since the end of the Cold War the most activist anti-nuclearism has been associated with advocacy and educational efforts that were oriented around the presumed authoritativeness of international law as reinforced by political commitment and international morality in two major respects:
- the unconditional unlawfulness of the weaponry with respect to threat, use, possession, and development;
- a reliance on a treaty-making approach that decreed nuclear disarmament by carefully calibrated stages, and subject to monitoring, verification, compliance, and dispute settlement procedures, and setting forth the response mechanisms in the event of non-compliance or cheating.
In other words, the case against all facets of nuclearism and the framework for total denuclearization are both guided and governed by international law.
At the same time, there are difficulties with an uncritical acceptance of this centrality of international law. First, the evidence is strong that the nuclear weapons states, above all the United States, will not override its security policies as related to nuclear weapons out of deference to international law, even if such an assessment of international law enjoys the strong backing of the International Court of Justice, the world’s highest judicial body. The 1996 Advisory Opinion of the ICJ reached two conclusions that should have led to operational adjustments in the announced doctrine and political behavior of governments possessing nuclear weapons: (1) nuclear weapons were only lawfully usable, if ever, if the survival of the state was credibly at issue; and (2) a unanimous views of the judges that the nuclear powers had a good faith obligation to negotiate both an end to the arms race and a disarmament plan, and what is more, and should not be overlooked, that these governments had “an obligation..to bring to a conclusion negotiations leading to nuclear disarmament.”
True, this was an advisory opinion, not formally binding on the parties, and of contested legal weight as to the issues at stake. Also, the ICJ judges were badly divided, with a slim majority (and even that resting on the President’s second casting vote to break a tie) favoring the view of conditional unlawfulness of the weaponry. Actually, the unlawfulness side was stronger than it seemed as three of the ICJ judges were so committed to unconditional unlawfulness that they refused to support the majority conclusion, which was consistent with a very narrowly construed deterrence doctrine. What is more notable is that the nuclear weapons states paid not the slightest operational attention to what these most distinguished judges from the world’s main legal system had determined in the only systematic review of the arguments about legality that had gone on since the first atomic explosion in wartime. This disdain was apparent even before the ICJ issued its advisory opinion, taking the form of the vigorous opposition led by the United States to referring the question of legality to the World Court, insisting, in effect, that international law was not relevant to the status of nuclear weapons. The substantive claim was that the U.S. Government was doing all that it could reasonably do to reduce risks of nuclear war, through arms control, nonproliferation, and deployment policies. Any more foundational judgment was thus deemed inappropriate by a judicial body not equipped to evaluate security policy, and thus at best, ‘moral’ and ‘political’ at its core.
The same line of reasoning was relevant with respect to the second conclusion relating to the NPT obligation to negotiate in good faith and with an end in view. What was already being done supposedly fulfilled the Article VI obligation of the nuclear weapons states, and the Court had neither the information or the expertness to pronounce otherwise, although the judges unanimously acted as if they did have the needed competence, and hence the responsibility to pronounce.
I think a clear picture evolves. The nuclear weapons states accord primacy to geopolitical policies when in tension with international law, especially on crucial issues bearing on the conduct of warfare and the shaping of peacetime security policies. The geopolitical consensus accepted by all nine weapons states is to disregard or sideline the purported relevance of international law. In reaction to this consensus there is some huffing and puffing by nonnuclear governments, but no political will to mount a challenge on even such a tangential issue as non-compliance with the Article VI obligation, a clear material breach of the NPT. This combination of geopolitical nuclearism and passivity by the members of international society other than ‘the nuclear nine’ has meant that it is up to each of this latter group of states, as a matter of sovereign discretion, to determine what its policies on deployment, threat, and use will be, and whether it will agree to arms control measures. And because these policies are treated as state secrets, there is no meaningful democratic participation, including even by most elected or appointed government officials, and neither knowledge nor leverage by the citizenry. With respect to nuclear weapons, every government is authoritarian, with only the head of state having the non-reviewable and unaccountable authority to decide whether and when to use nuclear weaponry against which targets and with what magnitudes of destructive power.
Left to carry on the campaign to rid humanity of the nuclear menace are the disparate and somewhat incoherent forces of civil society. At times of global crisis, as occurred periodically during the Cold War, these forces from below can be aroused to sound an alarm that has some resonance at the political center, but mainly this kind of pressure from below demands prudence and restraint rather than compliance with international law, and gains satisfaction from tiny incremental moves away from the nuclear precipice. With the decline of anxieties about possible confrontations between major nuclear weapons states, there is mostly evident a mainstream law emphasis on the ‘enforcement’ of the NPT directed at non-nuclear states perceived as seeking to acquire nuclear weapons.
Behind these developments, off to one side, are persevering efforts to insist on the unlawfulness of the weaponry and on gaining support for using the existing legal machinery of states and world society to push harder on the arguments of illegality. As has been pointed out, such efforts even if successful, are unlikely to be able to climb the geopolitical mountains on top of which are located the nuclear weapons arsenals. Yet that does not make the struggle to empower law with respect to nuclear weaponry without meaning or irrelevant to a survivable future. The outcome of the ICJ Advisory Opinion on legality, despite its unwelcome outcome being defiantly deflected by the nuclear weapons states, did have the positive effects of strengthening the political will and morale of anti-nuclear activists and their organizations throughout the world.
One notable expression of this heightened political will was the initiation of litigation in ICJ and American federal courts by the Republic of the Marshall Islands based on the alleged violation of Article VI of the NPT by the nine nuclear weapons states. Such litigation was grounded in the unanimous conclusion of the ICJ that good faith obligation to negotiate a nuclear disarmament arrangement that needed to be brought to a conclusion. In the 18 years since the Advisory Opinion there have been abundant confirmations that the nuclear nine were not at all disposed to seek nuclear disarmament, making it highly reasonable any non-nuclear party to the NPT to mount such a legal argument based on non-compliance.
And what country, other than Japan, had a greater moral and political entitlement to do so than the Marshall Islands? This archipelago of 1156 islands and islets was taken over from Japan after World War II, and formally given the status as a Trust Territory of the Pacific Islands (including several other Pacific island groups) by the United Nations in 1947. The tiny population of 68, 480 lives on 29 coral atolls. In the most dramatic betrayal of trust imaginable the United States used the Marshall Islands as the principal test site without consulting the indigenous population or seeking their consent. 67 atmospheric nuclear tests were conducted between 1946 and 1958. The largest was code named Castle Bravo and had an explosive magnitude of 15 megatons, which is 1000 times the force of the bomb was dropped on Hiroshima. As a result of this nuclear testing the people of the Marshall Islands have endured a variety of severe harms, ranging from forced evacuation and displacement, radiation sickness that continues to be prevalent, and environmental damage that appears to be permanent.
The legal theory behind the case is that the Marshall Islands, due to this harm and experience, have a legal right to question compliance with Article VI, as well as sharing the claim with all states that in the event of a nuclear war the harm would be global, impacting upon the security and wellbeing of the entire world. For the case to be accepted for adjudication by the ICJ a majority of the 15 judges must agree that a ‘legal dispute’ exists between the complaining state and the states accused of being in breach. The wheels of international justice turn slowly, if at all, and it remains to be determined whether the Marshall Islands will satisfy enough of these judges sitting in The Hague to clear this high jurisdictional hurdle. Only then will the court proceed to hear arguments and render a judgment on the merits. This litigation before the ICJ if it goes forward will result in ‘a decision,’ which unlike the 1996 Advisory Opinion can in theory be enforced by the Security Council acting under Article 98, but any attempt along these lines could be vetoed by any one of the five permanent members. The NPT gives states that are parties the legal option to bring a legal dispute before the ICJ, and the four nuclear powers that are not parties to the NPT are allegedly also subject to its authority by was of customary international law, which may seem a stretch. The legal reasoning is based on the proposition that the NPT has been so widely adhered to and so fundamental to world order that it has become binding whether or not a country is a party, that it is ‘a lawmaking treaty’ that is obligatory for the entire community of states. This raises an interesting jurisprudential issue for the ICJ as the argument goes against the earlier consensus that an attribute of national sovereignty is the option to remain outside an international legal framework, and even to dissent from it.
The companion case filed by the Marshall Islands in a Federal District Court resulted in a dismissal on February 3, 2015 resting on the notion that the alleged damage to the Marshall Islands was too speculative to qualify as a legal interest that a court of law can decide upon, and that the issue raised was, in any event, covered by the Political Questions Doctrine, which has led past courts to dismiss international law claims bearing on security policy. Such dismissals invoked separation of powers reasoning, which has been interpreted to mean that such issues are matters of foreign policy that should be resolved within the exclusive domain of the executive branch. Accordingly, the judiciary should not venture an assessment of this kind of challenge to security policy even if formulated by reference to a treaty obligation. This dismissal of the Marshall Islands initiative has been appealed to the Court of Appeals of the Ninth Circuit in San Francisco for review and decision.
Whatever the eventual outcome of these parallel legal initiatives, the cases have already had a significant civil society impact, and have brought much wider attention to the nuclear plight of the Marshall Islanders, as well as admiration for the willingness of this tiny stressed and subordinated polity to put forward such a controversial legal argument, especially considering that their own security and economic viability is so linked to the good will of the United States embodied in a so-called ‘compact’ that entered into force as the trust status was superseded in 1990 when the Marshall Island became “a presidential republic in free association with the United States.” In tangible terms this has meant that the United States has accepted responsibility for the defense of the Marshall Islands and for granting a range of economic subsidies, and in exchange retains use of a missile test site on Kwajalein Atoll, undoubtedly a reminder of the years when the island group was the principal site for new generations of nuclear weaponry.
In some respects it is pathetic that it has taken so many decades to mount this very limited legal challenge to nuclearism and that the challenge is made by this small vulnerable semi-sovereign republic while the rest of the governments throughout the world continue to sit on their hands while nuclearism flourishes. The U.S. Government has budget $1 trillion over the next thirty years to keep its superior nuclear capabilities up to date at the outer frontiers of security strategy.
Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, author, co-author or editor of 40 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to a six-year term as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and taught at the local campus of the University of California in Global and International Studies, and since 2005 chaired the Board of the Nuclear Age Peace Foundation. His most recent book is Achieving Human Rights (2009).
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