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

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

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.”

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

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).

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.

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.

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.

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.

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