No Justice for the Marshall Islands In Nuclear Weapons Contamination Case

World court rejects landmark case charging nuclear states of failing to work towards disarmament

The residents of the Marshall Islands are the ultimate modern age victims. If they don’t die from cancer inflicted by nuclear testing they will drown from rising sea levels caused by climate change.

Like most victims, they sought justice. But the International Court of Justice at The Hague refused it on what was effectively a diplomatic-cum-legal technicality.

a spread out mushroom cloud in the ocean by a beach with some housesPhoto courtesy of Library of CongressA nuclear weapon is detonated at Bikini Atoll in the Marshall Islands on July 25, 1946. Between 1946 and 1958 the US tested 66 nuclear weapons on or near Bikini and Enewetak atolls, in the Marshall Islands.

The Marshall Islands — population 54,000 — are two parallel strings of islands covering 750,000 square miles of the South Pacific. Their best known piece of real estate is Bikini Atoll. In the aftermath of World War Two, the United States was given responsibility for administering and looking after the welfare of the islanders. It did this by exploding 67 nuclear devices on Bikini Atoll and other parts of the Marshall Islands. Over a 12-year period the US exploded the equivalent of 200 kilotons a day. The bomb dropped on Hiroshima was 15 kilotons.

Not surprisingly, Bikini Atoll is now uninhabitable. Also not surprisingly, the Marshall Islanders suffer one of the highest rates of cancer and radiation-related birth defects in the world. The US government provides the islands military protection but not a single oncologist.

The islanders contend that all nuclear weapons states are responsible for their bitter legacy. Why? Because Article IV of the 1968 Nuclear Non Proliferation Treaty commits signatories to “pursue 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.”

Last year, the Marshall Islands brought cases against all nine nations that have declared or are believed to have nuclear weapons — the United States, Russia, China, France, Israel, North Korea, India, Pakistan, and the United Kingdom — for failing to uphold their “obligations” to negotiate for nuclear disarmament as required under the nuclear non-proliferation treaty. But only the cases against India, Pakistan and the UK proceeded because the rest of the nations do not recognize the International Court of Justice’s jurisdiction.

It was on these three cases that the ICJ, the principal judicial organ of the United Nations, delivered its judgment on October 5. (While the UK is a signatory to the treaty, India and Pakistan are not, but the Marshall Islands argued that the principle of disarmament is well-established in international law to be considered customary law.)

The verdict at the hugely ornate Peace Palace at The Hague was a close-run thing. However, the three key defending states pulled a technicality out of their collective legal hat. Without bothering to argue the merits of the islanders’ case, they moved to have it thrown out on the basis that the Marshall Island diplomats had inadequately negotiated with them before going to court.

In the case involving Britain the judges voted eight to eight and the president of the court was forced to use his tie-breaker. He sided with the UK. India and Pakistan fared slightly better with a nine to seven vote in their favor.

One of the islands key advocates was its 71-year-old former foreign minister Tony De Brum, who told the court that the nuclear tests had “vaporized” several formerly idyllic atolls and rendered others “totally uninhabitable for thousands of years.”

He described the court how he witnessed one of the explosions as a nine-year old fishing in the sea with his grandfather. The explosion was 200 miles away, but the sky turned red, a giant mushroom cloud appeared on the horizon and was quickly followed by a sonic boom and blast of radioactive heat.

De Brum’s deliveries to the court were quietly passionate, poignant, but ultimately, unsuccessful.

The disappointed Marshall Islands Amsterdam-based lawyer Phon van den Biesen, speaking outside the Peace Palace on the court steps said: “It’s a dispute that is clear to all of the world except for the judges here.”

Rick Wayman, director of programs and operations at the Nuclear Age Peace Foundation — a non-partisan nonprofit with consultative status to the United Nations — searched for a silver lining and told New Zealand Radio that “other non-nuclear countries will be inspired to step up, demand justice and take action.” Wayman, who acted as an adviser to the Marshall Islands government, added that a petition in support of the islands received more than five million signatures and support from more than 100 non-government groups. He pointed out that the ICJ ruling was close and included strong dissenting opinions.

There are some signs that the Marshall Islands case has invigorated the international anti-nuclear weapons lobby. A six-nation coalition of Austria, Brazil, Ireland, Mexico, Nigeria and South Africa, are climbing on the islands diplomatic shoulders to press for a UN General Assembly resolution for “a legally binding instrument to prohibit nuclear weapons.”

For the Marshall Islanders that is small consolation as they have been denied the right of appeal. But then they have more pressing problems as raw sewage floats into their kitchen sinks, salt water renders fresh water supplies undrinkable and the cassava and bread fruit crops wither and die. For the Marshall Islanders climate change is not a debating point but an all too real living nightmare.

The highest point in the island chain is only six feet above sea level. Because of rising sea levels the islands are expected to be uninhabitable by the middle of this century, if not sooner. The capital of Majuro is now regularly subjected to “King Tides”— unusually heavy tides that flood the city and wreck homes and businesses.

As a career diplomat and then three-times foreign minister, Tony de Brum has devoted his life to the war against nuclear weapons and saving his nation from a watery grave. He is universally acclaimed as the man who saved the Paris climate change talks by pulling together a coalition of 100 countries that ultimately included the EU, Canada and the United States — a major accomplishment for any diplomat, let alone one that represents the seventh smallest nation in the world.

De Brum also negotiated A 1983 agreement with Washington that gives the inhabitants of the Marshall Islands the right of abode in America and thousands have turned their backs on a sinking tropical island paradise to set up communities in Arkansas, Oregon, and Washington state. And finally, under the Paris Climate Change Accords, The US government is pledged to set aside $3 billion for the victims of climate change. “We will be first in line,” De Brum said.

He wants the money spent on breakwaters and desalination plants to protect water supplies. But it would seem unlikely that even the indefatigable De Brum can hold back the waves. And unless a way can be found to hold back the seas the rest of the islanders will soon follow their compatriots to the American mainland — the world’s first radioactive climate change refugees.

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