The Promise and Limitations of International Law: Nuclear Zero Lawsuits

1. The Promise and Limitations of International Law: Nuclear Zero Lawsuits Sarah Shirazyan PONI 2016 Winter Conference December 6-7, 2016 Washington, D.C.

2. Nuclear Zero Lawsuits: Marshal Islands v. Nuclear States International Court of Justice • Republic of The Marshall Islands v. U.S., Russia; U.K.; France; China; India; Israel; Pakistan; and North Korea. U.S. Federal District Court San Francisco • Republic of the Marshall Islands v. The United States. Image Courtesy: Washington Post

3. The Legal Basis for Litigation: Disarmament Obligations Treaty Law • NPT Article VI: • Parties to pursue negotiations on cessation of the nuclear arms race, nuclear disarmament and on a treaty on general and complete disarmament. Contested Customary Int. Law • ICJ Advisory Opinion (1996): • The nuclear powers had a good faith obligation to bring to a conclusion negotiations leading to nuclear disarmament. • The Court cannot conclude definitively whether the threat to use or the use of nuclear weapons would be lawful or unlawful in an extreme circumstance of “self-defense.”

4. Bringing a Case to the International Court of Justice: Jurisdictional Issues • A special agreement; • Cases provided for in treaties and conventions; • Compulsory jurisdiction in legal disputes. • UK • India • Pakistan Image Courtesy: theguardian

5. The Marshal Island Litigation in the United States • The Marshall Islands asked the court to determine American obligations under Article VI, announce if the US is in compliance, and call for remedial measures in the case of noncompliance. • The U.S. filled a motion to dismiss. • The court found the Marshall Islands lacked standing  the political question doctrine renders the matter non-justiciable. • The court did not address American obligations under the NPT. • Marshal Islands appealed to Ninth Circuit Court of Appeals (SF).

6. The Nature of the Claims & Counterarguments before the World’s Court • Preliminary Objections by UK, India and Pakistan: • Lack of jurisdiction and/or inadmissible: • No legal dispute. • Other NWS are absent from the proceedings. • The judgment would have no practical consequence. • Claims: • NWS violated NPT Article VI. • Article VI extends beyond the NPT parties  customary international law  based ICJ Advisory Opinion 1996. • Failed to pursue negotiations. • Failed to disarm—modernizing. • Opposed efforts to initiate disarmament negotiations. • Call on the respondents to start disarmament negotiations within a year.

7. The Promise of the International Law • The Judgment could help clarify the current status of arms control law. • Sharpen the obligations to disarm. • Determine whether modernizing existing arsenals amounts to a new arms race. • Potentially set the tone for Nuclear Ban Convention.

8. The Court’s Judgment: The Limitations of Int. Law • ICJ dismissed the case: Is there a legal dispute? • upheld the objection to jurisdiction raised by Pakistan, UK and India based on the absence of a dispute between the Parties. • Marshal Islands vs. UK– 8 votes to 8 = lack of legal dispute. • Marshal Islands vs. Pakistan– 9 votes to 7 = lack of legal dispute. • Marshal Islands vs. India –9 votes to 7= lack of legal dispute.

9. Implications for Int. Law and Nuclear Disarmament • The cases have negative ramifications for the authority and legitimacy of the ICJ. • NWS are immune from ICJ jurisdiction. • Ramifications for Nuclear Ban Treaty Negotiations.

10. The Promise and Limitations of International Law: Nuclear Zero Lawsuits THANK YOU!