RMI Nuclear Weapons ICJ Case Revisited: Causes for Concern

Readers will know that I wrote back in April about the surprise cases filed by the Republic of the Marshall Islands (RMI) against all nine states possessing nuclear weapons.  There have recently been some procedural updates, setting dates for the filing of memorials, and a response by India on jurisdictional grounds.

As I’ve learned more about the case, and particularly about the lawyers who are representing the RMI, I have become increasingly concerned about the prospects for this case as a strong challenge to the nuclear weapons possessing states on the basis of NPT Article VI.

If you look at the people who are on the RMI legal team, and particularly those who have been on it from the beginning and, as I understand it, played a leading role in persuading the RMI to bring the case, you will see that they are mostly anti-nuclear activists connected to a number of NGO’s, including the Lawyers Committee on Nuclear Policy, and the Nuclear Age Peace Foundation.  You can see a listing of them here.  My concern about this is having the RMI’s legal case led by people who certainly feel passionately about the issue of nuclear disarmament, but who are not themselves real experts in nuclear disarmament law.  Some of them write a lot about it, but mostly in activist circles and outlets, and not in serious, scholarly places.

A number of these people were intimately involved in bringing the infamous 1996 advisory case to the ICJ on the threat or use of nuclear weapons. As I teach my students every year, that case was doomed to a disastrous judgment from the start, because of the badly crafted legal question certified to the court in the first place. Basically, bad lawyering put the Court in a bind and ultimately produced the advisory opinion which has been so roundly criticized in legal scholarly circles.

What I’m afraid of is that, because the RMI case is being led by a lot of the same people, who are passionate activists for nuclear disarmament but not real experts in nuclear disarmament law themselves, a similar result will occur in this case of incompetent legal argument leading to a judgment that is either useless or, much worse, allows those on the ICJ from the nuclear weapons states to take advantage of the weak arguments of the RMI legal team, to influence the rendering of a judgment that will interpret NPT Article VI so broadly and weakly that the judgment will become an impediment to the nuclear disarmament movement. That really concerns me.

And looking at the RMI’s complaint against the UK filed with the Court in April – one of the few cases that is actually likely to go forward to the merits – unfortunately provides support for my concern. You can see it here.  Far too much reliance on the marginal dictum (and that’s what it was) from the 1996 advisory opinion about NPT Article VI, and not nearly enough substantive analysis of the law.  If the RMI legal team doesn’t step up its game significantly in the memorials, and in oral argument, the UK FCO lawyers are going to take them apart on the interpretation of Article VI.

I’ve written a lot on the subject of NPT Article VI, and so I have a significant professional investment in seeing any case on the subject at the ICJ argued well and brought to a positive conclusion, with a strong judgment by the Court interpreting Article VI as a provision with substance, which it is.

When activists with passion but little substantive expertise convince a state to bring a case to the ICJ in order to try and move their agenda forward, it’s an inauspicious beginning to what I fear will be yet another badly lawyered nuclear weapons case before the ICJ.