Law Out of Order: The Marshall Islands take America to the ICJ

While the political world has watched recent events unfold in Austria and Switzerland over the nuclear talks with Iran, an entirely separate nuclear affair has been taking shape almost unnoticed on the other side of the globe. The Republic of the Marshall Islands is bringing the nine nuclear states – the United States, the United Kingdom, France, Russia, China, Israel, India, Pakistan and North Korea – to the International Court of Justice (ICJ) for failing to make any attempt at worldwide progressive disarmament demanded by the Non-Proliferation Treaty (NPT). Between them, those nine nations spend $100 billion each year maintaining and perpetually modernizing their 17,000 warheads; in the forty-five years since the treaty’s inception, not one effective and binding international agreement has been made to limit this activity.

Image courtesy of fastfission, ©2006, some rights reserved.


The Republic of the Marshall Islands governs a population of roughly 68,000, spread out over a thousand small islands and atolls in the Pacific Ocean, about five and a half thousand miles Northeast of Australia. Its islands are among the most remote inhabited places on Earth, which merits them as an ideal testing ground for nuclear weaponry.

The nation’s recent history is entrenched in foreign bombardment, and so a brief overview of that must precede any understanding of the importance of this issue today. During the first decade of the nuclear age, the United States detonated over sixty nuclear weapons on what is now Marshallese territory. The explosive and radioactive yield of many of them far exceeded that expected by their supervisors and to this day. In particular, two of them strike a bitter chord for those who live with the aftermath. In 1952, the world’s first hydrogen bomb was exploded on the island of Elugelab, producing a crater fifteen stories deep and a blast radius of more than three miles within seconds, and physically removing that island from the map. Two years later, American forces detonated the first of another new generation in the nuclear family tree, a weapon nicknamed Castle Bravo. This explosion vaulted completely unexpectedly to become the most powerful ever initiated by the USA, producing a yield of 15 megatons, meaning it equated to the detonation of fifteen million tons of TNT. For some perspective, the weapon dropped on Hiroshima in August 1945 produced a yield one thousandth of the magnitude.

Besides the Japanese, the Marshallese people know more than any other community the drastic effects of nuclear explosions. After investigating the medical consequences of the 1954 blast for the nearby Marshallese population, the Journal of the American Medical Association found that they were by no means limited to the immediate aftermath. Beyond the skin damage inflicted at the time, results have emerged over the decades since, that the testing instigated a dramatic spike in childbirth mortality, learning difficulties in children, and by 2010, over half of the islands’ cases of cancer were attributable to nuclear fallout.

However, technically speaking, these horrors must suffice as the context in which a legal move can be made by the Marshallese, considering the fact that the United States violated no laws in performing the now infamous tests, and such a conviction based purely on moral grounds would have little standing in an international court. What the Marshallese do believe has been legally trespassed upon, however, is the treaty into which five of the modern nuclear states signed themselves into, along with almost every other country on Earth. The case, however, is more complex than any domestic judicial process of accusation, investigation, trial and punishment by authority. The International Court of Justice exists in the vacuous and inconsistent realm of international law, and its penal authority neither extends to those states that have not signed the NPT, nor those who have denied it the power of punishment over their governments.

Johnny Nehme, weapons contamination expert for the International Committee of the Red Cross told a humanitarian conference in Mexico in 2014 that “in the case of a nuclear explosion today in city centres, the amount of casualties and demolition would be so high that it would far exceed the capacity of humanitarian organisations to provide assistance,” noting that infrastructural damage to the medical and transport sectors, coupled with the suicidal levels of radiation that would immediately contaminate a target area, would render any form of aid futile and dangerous to the responders. Weapons of mass destruction in the twenty-first century evidently earn their title to a disturbing degree, and the debate over their utility has been brought to the fore within most states that possess them by national green movements and liberal peace advocates voicing concerns over defence expenditure and ecological destruction. Justification for the warheads invariably stems from the concept of deterrence, and that their maintenance validates itself on the very principle that they will never have to be used. But what the recognition of the Marshallese case adds to this discussion is a stark reminder that as long as nuclear arsenals must be maintained, the warheads themselves must be tested; and the jaw dropping photographs of such events speaks for themselves.

Article VI of the NPT dictates the pursuit of “negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” The Marshallese recognize this as almost farcical in the face of the statistics of modern armaments, and the fact that most nuclear states have expressed intention, somewhat arbitrarily, to remain in possession of warheads at least until the end of this century. As perceived violators of international law in this regard, each of the nuclear-armed governments has been officially requested to appear at the ICJ where they will face the legal representation of the Marshall Islands, headed by their Foreign Minister, and counselled notably by a number of American, British and European lawyers.

Success for the Marshall Islanders certainly seems distant given the sheer political weight of their legal opponents, the ambiguity and audacity of the prosecutors’ definitive demands, and the unavoidable weakness of the Court’s punitive authority. Regardless of the outcome of the proceedings this summer, however, these events serve as a reminder not just of the near-incomprehensible power of modern military science, but of the implicit division that exists between the political haves and have-nots on the world stage. Whether mainstream attention of the process will be positive, or will even materialize, is yet to be seen. But attention is truly deserved.

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