Marlese Simons | New York Times
Tony de Brum was 9 years old in 1954 when he saw the sky light up and heard the terrifying rumbles of “Castle Bravo.” It was the most powerful of 67 nuclear tests detonated by the United States in the Marshall Islands, the remote Pacific atolls he calls home.
Six decades later, with Mr. de Brum now his country’s foreign minister, the memory of those thundering skies has driven him to a near-Quixotic venture: His tiny country is hauling the world’s eight declared nuclear powers and Israel before the International Court of Justice. He wants the court to order the start of long-promised talks for a convention to ban atomic arsenals, much like the treaties that already prohibit chemical, biological and other weapons of mass destruction.
Mr. de Brum says the initiative is not about seeking redress for the enduring contamination and the waves of illness and birth defects attributed to radiation. Rather, by turning to the world’s highest tribunal, a civil court that addresses disputes between nations, he wants to use his own land’s painful history to rekindle global concern about the nuclear arms race.
The legal action is expected to run into plenty of legal and political obstacles. Even if the court decides in favor of the Marshall Islands, it has no way to enforce its decision. Prospects of any nuclear power heeding such a ruling anytime soon, experts say, are, obviously, exceedingly slim. But some say the action will shine a light on a serious but neglected issue.
“This case will help clarify where we stand in arms control law and perhaps sharpen the obligation to disarm,” said Nico Schrijver, who heads the law school at Leiden University in the Netherlands and is not involved in the case. “It has merit in a time of growing international tension. But I see a host of legal hurdles ahead.”
In its first written arguments, presented to the court this month, the Marshall Islands contended that the nuclear powers had violated their legal obligation to disarm. Specifically, the arguments said, by joining the 1968 Nuclear Nonproliferation Treaty, five countries — the United States, Russia, Britain, France and China — undertook to end the arms race “at an early date” and to negotiate a treaty on “complete disarmament.”
Three other nuclear nations that did not agree to the treaty — India, Israel and Pakistan — and a fourth that withdrew from it — North Korea — are required to disarm under customary international law, the Marshall Islands’ case claims. The existence of Israeli nuclear weapons is universally assumed, but Israel has not acknowledged having them.
“All the nuclear weapons states are modernizing their arsenals instead of negotiating, and we want the court to rule on this,” said Phon van den Biesen, the leader of the islands’ legal team, who first asked the court to hear the case in April.
The civil suit comes as nuclear arms are increasingly being linked to other pressing international issues, such as the prosecution of war crimes and crimes against humanity and the effort to combat climate change.
Meeting in Vienna this month, humanitarian law experts from 160 nations reiterated that the threat from nuclear arms or other weapons of mass destruction was incompatible with human rights principles. Scientists have stepped up warnings that using even a small percentage of the world’s nuclear arsenal would radically change the atmosphere and could cause drops in temperatures and large-scale crop failures.
More than a dozen international law experts have donated time to assist the tiny Marshall Islands, a string of atolls with 70,000 inhabitants. Rick Wayman, the director of programs at the California-based Nuclear Age Peace Foundation, said that a coalition of 55 international peace and other activist groups were backing the initiative.
One of the key questions that the court’s 15-judge bench is likely to consider is whether modernizing existing arsenals amounts to a new arms race forbidden under existing agreements. The United States and Russia, which control most of the world’s nuclear weapons, have cut old stockpiles and agreed to further reductions under a 2010 bilateral accord. But both countries, along with China, are now engaged in major upgrading of their missile systems. Pakistan and India have been in an arms race for more than 15 years.
The court is also being asked to establish a new disarmament calendar. The Marshall Islands’ suit asks that the nuclear powers begin negotiations on a disarmament treaty one year after the court’s ruling. But, as John Burroughs, director of the New York-based Lawyers Committee on Nuclear Policy, noted: “There have never even been any multilateral negotiations to eliminate nuclear weapons since the 1968 nonproliferation treaty.”
One big question is whether the judges would go beyond an opinion they issued in 1996. Asked to advise the United Nations General Assembly, the judges said unanimously that the obligation existed “to pursue in good faith and bring to a conclusion” negotiations leading to nuclear disarmament. Experts say the bench may be more divided this time.
It is far from clear how the judges will vote. Although the bench is meant to be independent, six of the 15 judges come from nuclear powers — the five original nations plus India. Heikelina Verrijn Stuart, co-author of “The Building of Peace,” a comprehensive history of the International Court of Justice, said that politics have usually trumped international law and that in the majority of the court’s cases, judges have ruled in favor of their country of origin. “Most states simply do not accept a higher legal authority,” she said, adding, “however there is no reason to suggest that the I.C.J. judges are in any way instrumental to the politics of their country of origin.”
Among the nuclear powers, only Britain, India and Pakistan have recognized the court’s jurisdiction as compulsory; the others choose whether to opt in. So far, only China has replied, stating that it will not accept the court’s jurisdiction in this case, said Mr. van den Biesen, the lawyer.
Mr. de Brum is not discouraged, arguing that his nation is justified in taking action because it has suffered the effects of nuclear testing and is now threatened by rising sea levels.
From a climate summit meeting in Lima, Peru, in mid-December, he sent an email emphasizing the parallel between climate change and nuclear issues. “They both affect the security and survival of humanity,” Mr. de Brum wrote. “Finally it comes down to this: What would it gain mankind to reach a peaceful resolution of the climate change threat, only to be wiped out by a nuclear misunderstanding?”
Hearings in the case are expected in the coming year.
