Marshall Islands vs. UK Nuclear Modernization
By: Shanelle Van
The Republic of the Marshall Islands (RMI) filed suit in the International Court of Justice (ICJ) in April 2014 against nine nations known or believed to possess nuclear weapons: the five recognized nuclear weapons states (the United States, the United Kingdom, France, China, and Russia) as well as India, Pakistan, Israel, and North Korea. The suit alleges that these states failed to meet their legal obligations “to pursue in good faith” negotiations leading to nuclear disarmament. It also contends that these countries’ efforts to modernize and maintain their respective arsenals for the indefinite future violate not only Article VI of the Nuclear Non-Proliferation Treaty (NPT), but also customary international law applicable to all states. Of the nine nations under fire, however, only India, Pakistan, and the United Kingdom have actually consented to the compulsory jurisdiction of the Court. That is, of those sued by RMI, only these three countries had previously agreed to be bound by the ICJ’s decisions—and, indeed, they are the parties called to appear before the ICJ in public hearings next month. Each will have the opportunity to contest, at a procedural level, the respective cases against them, and the ICJ will rule on these jurisdictional questions to determine whether it will proceed to a consideration of the merits.
This lawsuit comes at a particularly interesting moment for the United Kingdom and its nuclear deterrent. Members of Parliament are expected to vote next month on whether to invest in a 20-year acquisition program, at an estimated cost of £31 billion (with a £10 billion contingency) or ($43 billion with a $14 billion contingency), for developing and building four new “Successor” submarines to replace the current fleet of Vanguard-class submarines. But the Trident replacement issue has touched off a heated domestic debate about whether the United Kingdom should remain a nuclear power at all. Though the UK government committed in its 2010 Strategic Defence and Security Review to reduce its “operationally available warheads from fewer than 160 to no more than 120” and the “overall nuclear warhead stockpile ceiling from not more than 225 to not more than 180 by the mid 2020s,” and also reaffirmed this commitment in 2015, opponents to the Trident program would rather see the United Kingdom disarm entirely at a rapid pace.
The United Kingdom will no doubt push back hard against the Marshall Islands at this upcoming initial procedural stage. Should the case in the ICJ nonetheless move forward, the United Kingdom would reject unequivocally, as it has done in the past, the notion that it has not fully complied with the NPT specifically and the general rules of international law more broadly. RMI would have an uphill battle proving otherwise. By what measure can it say definitively whether the United Kingdom has pursued negotiations “in good faith” or not, particularly when the United Kingdom continues to reduce the scale and role of its nuclear forces? The law is unclear on the precise requirements of “good faith.” Article VI makes no mention of modernization. And, importantly, even if the Court were to find the United Kingdom in breach of its legal obligations, what relief can the ICJ offer? In its filing against the United Kingdom, RMI asks that the Court order the United Kingdom to comply with the relevant laws and, within one year of the judgment, pursue or initiate “negotiations in good faith aimed at the conclusion of a convention on nuclear disarmament in all its aspects under strict and effective international control.” The United Kingdom, however, is only one nuclear power. Even if it were to call for multilateral negotiations, there is no guarantee that any of the others would come to the table, and the ICJ would lack the jurisdiction to compel them to do so.
Some have therefore noted that these cases are unlikely to change the legality of the nuclear powers’ plans for their arsenals. But the numerous filings against countries outside of the ICJ’s reach suggest that RMI is at least as interested in the resulting publicity as it is in the legal outcomes. It could not have actually expected the United States, let alone North Korea, to voluntarily submit to the Court’s rulings. It is thus muddling the ideal and the realistic, pulling the disarmament issue out of its proper venue in the NPT review process while also dragging the United Kingdom and the ICJ into what is ultimately a political question, without clear direction as to what practical solutions the Court would be within its power to facilitate. There is still something to be said, however, even given the more problematic aspects of the cases, for the root intent of the Marshall Islands in raising these issues in a public arena. Progress toward disarmament is critical for a more secure world. Each responsible nuclear power with the intent to modernize its nuclear arsenal has a duty to rearticulate and demonstrate its commitment to multilateral negotiations and (if applicable) to the NPT—and it must do so with frequency, clarity, and conviction, particularly during a contentious debate like the one currently underway in the United Kingdom.