My Reaction to the Dismissal of the Marshall Islands Cases by the ICJ

Well, as I’ve been predicting for some time now, the ICJ has today dismissed the Marshall Islands’ cases against the United Kingdom, India and Pakistan. These were the only states left in the dock from the RMI’s initial announcement of cases against all nine nuclear weapons possessing states.  Readers of this blog will know that I’ve been writing about these cases occasionally since their announcement in April 2014.

Pretty early on, I became concerned by the work I saw coming from the lawyers that were representing the RMI, both in the cases at the ICJ and also in the still enigmatic, and quickly dismissed, case against the U.S. in domestic federal court.

And particularly when, in March of 2016, we finally got a look at the written pleadings of both the RMI and the three remaining respondents in the ICJ cases for the jurisdictional phase of the proceedings, my concerns about the quality of the RMI’s legal team began to be borne out in earnest. You can read my thoughts on those written pleadings here and here.

So to be clear, what happened today is that the ICJ decided that in all three of the remaining cases – those against the U.K., India, and Pakistan – the court lacked jurisdiction to proceed to the merits of the case. In all three judgments the court found that the RMI had failed to establish that there was a legal dispute between the parties that gave rise to a case over which the court could exercise jurisdiction.  In none of the three judgments announced today did the court actually proceed to consider the merits of the cases, i.e. the court did not consider or pass any judgment about the NPT law questions raised by the RMI’s complaints, focusing on NPT Article VI. Because each of the cases was dismissed purely on jurisdictional grounds, these cases tell us nothing about the correct legal interpretation or application of NPT Article VI.

I’m still reading through the various separate opinions lodged by individual judges, both concurring with and dissenting to the court’s judgments in the three cases. But I would like to go ahead offer a few points of commentary on the these cases generally and on their ultimate disposition, which we now know.

1. First, these cases, as well as the other six that were dismissed even earlier in the process, should never have been brought to the ICJ on a contentious basis. The RMI’s legal team should have known better. They should have known from the beginning that six of the nine cases filed would never see the inside of a courtroom because of an undisputed lack of jurisdiction in the ICJ to hear them.  These cases included the ones against the U.S. and Russia, which are of course by far and away the countries that matter most when considering the issue of nuclear disarmament, and which are the best examples of parties to the NPT that have not acted in compliance with Article VI.  So from the very beginning, the RMI team must have known, or at least should have, that they were not going to have their “day in court” with the states against whom the RMI should have been most interested in bringing these cases.  This is particularly true of the U.S., whose March 1954 Bravo nuclear test at the Bikini Atoll was witnessed first hand by the country’s foreign minister, Tony de Brum – an experience which he has poignantly shared as a formative one in his desire to bring these cases.  I hope that the lawyers who ended up representing the RMI told him early on that there was zero chance of his country’s suit against the U.S. even proceeding to trial. One wonders if that was made sufficiently clear to him.

So going down the contentious route meant that six of the nine original cases were dead on arrival for clear and undisputed jurisdictional reasons, leaving as a meaningful possibility only the cases against the U.K., India, and Pakistan, all of which had accepted the compulsory jurisdiction of the ICJ.  Knowing this as they must have done, or at least should have done if they were adequately counseled by their lawyers, one wonders what the RMI thought the point was of lodging the six D.O.A. cases? It makes me wonder if perhaps their legal counsel wasn’t as forthcoming as they should have been about the likelihood of success of those cases.

With regard to the three remaining respondents, while the U.K. is a party to the NPT, India and Pakistan are not, so from the very beginning the RMI’s legal team knew or should have known that trying to establish that these countries were in violation of the principles contained in NPT Article VI would require an additional uphill battle to convince the court that those principles had also passed into customary law.  This is an argument that I happen to agree with, but that I know would take a good deal of convincing for the court. This is not to mention the various reservations which India and Pakistan both attached to their statement of accession to the ICJ’s compulsory jurisdiction – reservations that would take a very high level of professionalism and legal expertise to counter.  The same was true of the U.K. and its reservations to the ICJ’s jurisdiction.  These jurisdictional hurdles made the success of even these three remaining cases unlikely from the beginning. Again, I hope the RMI was made aware of this.

At the time the RMI’s cases were filed I was certainly not opposed to the idea of going back to the ICJ to get a judgment specifically about NPT Article VI and the compliance of the NPT NWS therewith particularly.  Far from it.  But from as far back as my first book in 2009, I have argued that such a case should be brought on the basis of the court’s advisory jurisdiction, presenting the court with a much more clearly justiciable question than the one which led to its infamous 1996 advisory opinion.  Were I to have been asked early on to advise the RMI, I would have advised them against going down the contentious jurisdiction route in these cases, and would have advised them rather to work within the U.N. General Assembly to fashion the right question on Article VI to send to the court for its advisory jurisdiction.  This would have removed all of the jurisdictional hurdles that ultimately were the doom of its contentious cases, and would have allowed the court to give its opinion on the merits of the case with regard to all of the nine nuclear weapons possessing states, including the U.S.

And just for the sake of full disclosure, I was never approached by the RMI or by their legal team for my advice or participation in the cases. I was completely blindsided by the announcement of the cases in April 2014.  I subsequently did, however, reach out to Phon van den Biessen who was acting as agent for the RMI, and offered to advise the RMI on a pro bono basis as the cases progressed from that point. However, my offer was summarily declined.  To this day I still don’t know why my assistance was declined, when on an objective basis I have written more on the interpretation of the NPT than any of the lawyers involved, and have taken positions in those writings sympathetic to the substantive arguments the RMI wanted to make in these cases. My only sense is that I was not in the little clique of friends that had decided to convince the RMI to bring these cases, and who now wanted to handle all of the legal arguments themselves.  I guess we now know how that turned out.

2. This brings me to my next point of commentary.  As you can read in my previous blog posts on these cases, my review of the written work of the RMI’s lawyers, both in their case against the U.S. in federal court and in the cases before the ICJ, produced the conclusion that the clique of friends was simply not professionally up to the task of making the required legal arguments at the level of quality that was necessary in the uphill procedural and substantive battle that they had chosen to fight by themselves. Others can view the documents and make up their own minds, but in my opinion the lawyering by the RMI’s legal team in these cases was of poor quality.  Just looking, as I did in one of my posts, at the juxtaposition between the RMI’s brief and the U.K.’s brief  on the issues of jurisdiction, it’s easy to see the difference in the quality of lawyering between the sides.

I think the fact that the RMI cases were ultimately dismissed because the RMI’s lawyers failed to establish the most basic, necessary legal fact – i.e. the existence of a dispute between the parties – is evidence supporting my conclusion about the quality of their work.  Having decided to go down the contentious case route, how hard would it have been to counsel the RMI to take some time, prior to the filing of the cases, to clearly and directly communicate the existence of a dispute to the three respondents, and then engage in attempts to resolve the dispute directly with the respondents for a reasonable time before filing, so that once the cases had been filed the knowledge of the dispute could not be denied by the respondents?  Pretty basic stuff.

3. I am not privy to the communications or the details of the relationship between the RMI and its legal team.  So all I can say is what the narrative of these cases appears to me to be from the outside, and I give the following as my opinion and not as a statement of fact. What the overall narrative of these cases suggests to me is that a small group of NGO-based lawyers who are passionate about nuclear disarmament law convinced a small, developing country to leverage its tragic history with nuclear weapons testing in order to bring cases against nine states, in addition to a case in the domestic courts of one of those states, so that this small group of lawyers and a few of their close friends could live out their dream of standing in front of the ICJ making legal arguments against the evil nuclear weapons possessing states.  Even though the lawyers knew or should have known that there was absolutely no chance of most of those cases succeeding, and only a slim chance of a few of those cases succeeding, they nevertheless took the small, developing state’s money to bring them. They didn’t use that money to hire real experts in both procedure and substance of the issues that they would be arguing. Instead, they decided they could handle all the issues all by themselves.  I have no idea what they told their client about the likelihood of success of these various cases, or whether they built themselves up as being more capable lawyers than they actually were. But just from what I can see from the outside, this looks like a case of exploitation of a small, developing country and its tragic history by a small group of lawyers for their own personal and professional gain.

4. I have to say that I am ultimately glad that the RMI’s cases against the U.K., India, and Pakistan were dismissed today. From the moment I began to be concerned about the quality of the RMI’s legal team, my biggest fear about these cases was that they would in fact proceed to the merits and that the bad lawyering of the legal team would lead the court to adopt a judgment on the merits that provided a weak interpretation of the Article VI disarmament obligations.  This would have been a real blow to the ongoing diplomatic effort to force the nuclear weapon states to take their Article VI obligation seriously. This effort has now been added to by the humanitarian initiative, but Article VI is of course still important as the only multilateral treaty obligation in existence relative to nuclear disarmament. So I am glad that we have avoided that result with today’s rulings.