The advent and escalation of nuclear weapons technology and its importance in military warfare and national defense clearly poses a global challenge for the international community to address. Though there exists great participation in treaties concerning nuclear weapons like the Non-Proliferation Treaty (NPT), some feel that there is not enough being accomplished to progress towards complete disarmament. The Marshall Islands (RMI) currently has a case pending against nine nuclear weapon states (NWS) in the International Court of Justice (ICJ) asserting that their current positions are in violation of the NPT or customary international law.
RMI is unique in its particular history with nuclear weapons since the islands served as the location where the United States tested its nuclear bombs. For twelve years, the U.S. conducted sixty-seven nuclear weapons tests, including the Bravo test, which was “one thousand times bigger than the Hiroshima bomb” and resulted in “catastrophic damages caused by radioactive contamination to human health, the environment, and properties in the area.” This case is particularly interesting because RMI is bringing suits against countries that are not party to the NPT, like India and Pakistan, and are thus not part of an agreement banning them from possessing nuclear weapons. This Comment provides a brief overview of some potential points that the Marshall Islands could assert and any defenses that the non-NPT states may argue, as well as how past ICJ precedent and developing international law could impact the outcome.
Despite near universal ratification of treaties like the NPT, states like India and Pakistan may still argue against an already existing international custom mandating nuclear disarmament. This is evidenced by the large proportion of actual NWS that do not agree with the dictates of the treaties and whose behavior (obtaining and detonating nuclear weapons) actually is in direct opposition to any potential international norm. According to the ICJ’s reasoning in their 1996 advisory opinion when confronted with the issue of nuclear weapons, the Court stated that there is a duty for nations 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.” Furthermore, the I.C.J. stated that this “obligation goes beyond that of a mere obligation of conduct” and extends to “an obligation to achieve a precise result: nuclear disarmament in all its aspects.” Beyond the I.C.J. we can look to other international bodies. In 2009, the U.N. Security Council’s Resolution 1887 called “for further progress on all aspects of disarmament,” extending this call to action to states not party to the NPT. The terms of the NPT were reaffirmed successfully in May 1995, further demonstrating a global intent to abide by these terms. There has also been a steady increase of other non-proliferation treaties such as those banning nuclear detonations in space or the seabed, and those establishing nuclear-weapon-free zones in different geographic regions. Finally, there have been no nuclear weapons tests in the 21st century apart from those conducted by North Korea.
If the aforementioned demonstrates the formation of an international custom, the non-NPT countries can argue that they require nuclear weapons for self-defense, deterrence, and for use in the case of reprisal for a WMD attack on their nation. For example, India announced in 2003 that “nuclear weapons will only be used in retaliation against a nuclear attack on Indian Territory or on Indian forces anywhere.” The last time the ICJ faced this question was in 1996, when the Court stated that it could not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” The Marshall Islands could argue for a different result today from the ICJ by relying on the developing bodies of international humanitarian law and international environmental law. The I.C.J. has recognized that “a threat or use of nuclear weapons” should be compatible “particularly [with] those of the principles and rules of international humanitarian law” which mandate that force be controlled, proportionate, and necessary. Nuclear weapons clearly do not fit into this category because the uncontrollable explosions do not discriminate between civilian and military targets, cause immense damage to the environment and human life, and are incapable of guaranteeing a proportionate and necessary response. Even in the case of using nuclear weapons after being attacked, that response would only serve to further escalate a situation into a purposive all-out nuclear war.
The rules of international environmental law can also serve as an avenue to refute these potential defenses. Nuclear weapons violate the principles of transboundary harm, sustainability, and intergenerational equity, through their widespread effects including damaging the health, environment, and livelihoods of future generations. Lastly, there is also the danger of allowing non-NPT states like India to develop nuclear relationships with NPT states. The 2005 joint agreement between India and the U.S. serves to undermine the treaty and encourages other states to pursue nuclear technology. Overall, there are many different lines of argument that the Marshall Islands can assert against these countries even though they are not party to the NPT. Hopefully, the recent trends in non-proliferation treaties between governments, policies of world powers, and developing international humanitarian and environmental standards can prompt the I.C.J. to rule in favor of the Marshall Islands– taking a necessary step towards eliminating nukes from global military strategy.
 This post is adopted from a forthcoming note by the author. Chirag Naidu, The Future of International Norms of Nuclear Non-Proliferation and Disarmament: The Republic of the Marshall Islands’ suit against India in the International Court of Justice, Colum. J. Transnat’l L. (2016).