My ASIL Insight on the Marshall Islands case
Posted: May 14, 2015 Filed under: Nuclear | Tags: Article VI NPT, Disarmament, International Court of Justice, Marshall Islands, NPT, NPT 2015, nuclear weapons 2 CommentsAn ASIL Insight I wrote on the case brought by Marshall Islands against the nuclear weapons states before the International Court of Justice has just been published online (to read it, click here). Comments are welcome.
Arms Control Law 
Since the ICJ has refused to give an opinion on the legality of the testing of nuclear weapons, am sure this case would gave them the opportunity to do so. The pleadings of the Marshall Islands revealed very salient issues on customary law and treaty law. Even though in para. 2 of the Application, it is stated that “…. it is not an attempt to re- open”the court’s AO delivered on the 8 July 1996. I cant see how the ICJ would give a ruling on this application without touching on the legality of the test itself, which is the corpus of the breach of good faith and thus, the need for the application in the first place.
It is quite helpful that the author mentioned a useful, relevant case in relation to the Marshall Islands’ case: “The Lac Lanoux arbitration award confirms that, in spite of the peculiarities of each case, a state will be in breach of an obligation to negotiate an agreement when it is responsible for ‘an unjustified breaking off of the discussions, abnormal delays, disregard of the agreed procedures, systematic refusals to take into consideration adverse proposals or interests, and, more generally, in cases of violation of the rules of good faith.'”
If the ICJ court applies the above standard, it is possible that the court may declare that some
NWSs, at least those state parties to the NPT, are in violation of the Article 6 obligation. The court may look at the voting patterns of the defendants in the GA resolutions dealing with nuclear disarmament or look at how well the defendants are supporting various, related international treaties dealing with nuclear disarmament such as CTBT. For instance, UK, along with US and France, has been voting against the annual GA resolution on the Convention Against the Use of Nuclear Weapons. That clearly shows a lack of good faith on nuclear disarmament by UK.
On the question of the role of NNWS in the nuclear disarmament, I have a different perspective.. Although it is true NWSs have soecial obligations to negotiate “effective measures” for
nuclear disarmament, that does not mean NNWSs should remain as mere bystanders under Article 6. In fact, they have equal rights and obligation in promoting nuclear disarmament. Thus, when NWSs are not moving forward, it is incumbent upon the NNWSs to undertake measures on their own to move the nuclear disarmament forward. For instance, they can call for an international conference, outside of CD, to negotiate a new treaty prohibiting the use of nuclear weapons as as a next major move toward nuclear disarmament. The antipersonnel landmine treaty is a good example how the small states went ahead to outlaw the indiscriminate weapon, without the initial support of major producing countries. The number of states that joined the treaty have increased steadily over the years, and even the non-state parties do not dare to use AP mines nowadays. That is a tremendous progress, and we should all applaud and follow it. The role of NNWSs in nuclear disarmament should not be underestimated.