Tiny Marshall Islands challenging Nuclear Powers (Including India and Pakistan) in the International Court of Justice

By Karmanye Thadani

A tiny country in the Pacific Ocean, the Marshall Islands, has tried to employ international law to enforce nuclear disarmament by taking nuclear-armed countries, namely Russia, Britain, France, China, Israel, India, Pakistan and North Korea, to the International Court of Justice (ICJ). While I am not familiar with the domestic politics or foreign policy of the Marshall Islands, on the face of it, this does seem to be a noble initiative not motivated by realpolitik. What makes this line of thinking more palatable is the explanation that the government of that country has itself given, which is that their people have been victims of 67 US nuclear tests for 12 years following the end of World War II, which caused lasting adverse health and environmental effects. Indeed, the Marshall Islands was a country that saw invasions by both the Japanese and the Americans, and until 1986, was not a fully sovereign country free from American domination, and the Americans used the Marshall Islands as a place for nuclear tests, with radioactive radiation causing cancer and other such diseases. Now, the Marshall Islands has attempted at taking up the task of preventing such a thing from happening anywhere, advocating complete nuclear disarmament. “Our people have suffered the catastrophic and irreparable damage of these weapons, and we vow to fight so that no one else on earth will ever again experience these atrocities,” the country’s foreign minister, Tony de Brum, said in a statement announcing the law suits. Several Nobel Peace Prize winners are said to support the legal action, including South African Archbishop Desmond Tutu and Iranian-born human rights lawyer Shirin Ebadi.

 While the idea is undoubtedly righteous, many have contended that nuclear weapons have themselves served as a deterrent to war in many cases and have, therefore, indirectly helped the cause of world peace, they having been employed only once, indeed with devastating effects, by the Americans in Hiroshima and Nagasaki in Japan.

 While some of the nuclear-armed countries like India, Pakistan, Israel and North Korea are indeed not even signatories to the Nuclear Non-Proliferation Treaty, the Marshall Islands contends that the basic premises of the treaty amount to “customary international law”. Whether or not this is indeed the case is for the ICJ to pass judgment on.

 In 1996, the ICJ had, in its advisory opinion on a request from the United Nations General Assembly, held, some dissenting judges notwithstanding, that the possession of nuclear weapons is not illegal, though the international community needs to come together to conclusively bring about a disarmament regime under international legal control.

United States conducted 'Operation Crossroads', a series of nuclear weapons tests conducted by the United States at Bikini Atoll in the Marshall Islands in 1946.
United States conducted ‘Operation Crossroads’, a series of nuclear weapons tests at Bikini Atoll in the Marshall Islands in 1946.

Speaking of India and Pakistan, it seems that both can wriggle out of this by way of asserting that the ICJ does not have jurisdiction. India has accepted the compulsory jurisdiction of the ICJ under the ICJ Statute, except in certain cases, one of them being “disputes concerning the interpretation or application of a multilateral treaty unless all the parties to the treaty are also parties to the case before the Court or Government of India specially agree to jurisdiction” (which is not the case here, for only Marshall Islands is filing the case). Likewise, Pakistan has also stated that it submits to the compulsory jurisdiction of the ICJ, except in certain cases, one of them being “all parties to the treaty affected by the decision are also parties to the case before the Court”.

While India and Pakistan may wriggle out of the legal tangle the Marshall Islands is set to pose, both have been in denial mode of serious allegations that nuclear tests have had on those claiming to be their own citizens. In India, for instance, in the village of Pokhran where the nuclear tests were conducted, even four decades hence, there have been reports of cancer and genetic abnormalities, unheard of earlier.

Dr. Arjun Singh, a former Joint Director of Medical and Health Services in the Jodhpur region, who is also a resident of Loharki village, to carry out a preliminary medical survey in 2009 in the villages within a radius range of ten kilometres of the explosion site. He, along with some other doctors spent more than six months on the study.

Picture Courtesy: http://www.npr.org

“There is a definite rise in cancer, genetic abnormality amongst livestock and skin problems in the villages of inner radius from the test site,” said Dr Singh.  At the time of the survey, the village of Loharki had around 17 deaths from cancer and the village of Khetolai, 20 deaths.

However, the results of his survey were not published as of 2014 due to lack of radiation exposure studies on Pokhran’s air and water, as also its human and cattle population. Dr Singh’s medical survey can only be corroborated after similar studies are undertaken in Pokhran and the results compared with data in other districts of the Jaisalmer region that haven’t been exposed to nuclear explosion.

In Pakistan, the situation has probably been worse. In the region of Balochistan, once an independent kingdom like Nepal and Bhutan and unlike princely states like J&K and Chitral that were a part of “India” under British rule (some parts of Balochistan that the British had included in “India”, like the town of Quetta, were returned to the monarch in August 1947 before Pakistan and India attained their independence), that was invaded by Pakistan in 1948, nuclear testing in the late 1990s has apparently caused extensive damage to the ecology and human health, and elsewhere near the town of Dera Ghazi Khan in their province of Punjab, uranium has been dumped, which has also reportedly led to health and ecological problems.

While India and Pakistan may not have to dispose off their nuclear weapons, and may not do so even if the ICJ does hypothetically assume jurisdiction and asks them to do so, owing to no enforcement mechanism (it is highly unlikely that the United States will abide by the ICJ decision, given that it didn’t in the landmark Nicaragua case, and if it doesn’t, India and Pakistan aren’t likely to either), but it has given both these countries in South Asia an opportunity to revisit the suffering of their own citizens reportedly owing to nuclear radiations. While both India and Pakistan have a mainstream nationalist discourse (of course, there are indeed also non-mainstream voices in both the countries) that takes pride in their nuclear programme and military strength, and writes off and delegitimizes counter-nationalist claims by secessionists only by virtue of describing them as “anti-national” and has a very contemptuous attitude of denial in the context of allegations of human rights abuse by the military or paramilitary forces of one’s country (this is not to say that all the secessionist claims in India and Pakistan have legal or even undisputedly moral standing, but they are not even examined on their merits in most cases, as in the case of the Baloch, where there is legally a clear open-and-shut case), nationalism should not be an excuse to shy away from examining the suffering of civilians one regards as one’s own nationals, at least.

(A lawyer by qualification who has pursued short courses at the University of Oxford and the London School of Economics, Karmanye Thadani is a freelance Indian writer based in New Delhi, India. His articles have been published in several legal journals, newspapers and magazines, and he has authored/co-authored four short books, namely ‘Anti-Muslim Prejudices in the Indian Context: Addressing and Dispelling Them’, ‘Women and Sport in India and the World: Examining the History and Suggesting Policy Reforms’, ‘Onslaughts on Free Speech in India by Means of Unwarranted Film Bans’ and ‘The Right to Self-Determination of Pakistan’s Baloch: Can Balochistan Go the Kosovo Way?’)

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