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Hurting More than Helping: How the Marshall Islands' Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court

47 Pages Posted: 13 Mar 2015 Last revised: 5 Apr 2016

Katherine Maddox Davis

Gibson, Dunn & Crutcher

Date Written: March 11, 2015

Abstract

In April 2014, the Marshall Islands filed ten suits against the nine nuclear weapons states: one against each of the states at the ICJ, and one against the United States in a federal district court. Each suit essentially argued that the nuclear weapons states were in violation of the Nuclear Nonproliferation Treaty (NPT), customary international law, and obligations erga omnes merely by still possessing nuclear weapons. As Greenpeace and a contingency of world leaders laud the Marshall Islands’ legal crusade, the cases themselves mostly appear dead on arrival. What is worse, the legal action may jeopardize the submission to the ICJ’s compulsory jurisdiction from two submitting major powers, India and the United Kingdom.

This Article contends that submission to compulsory jurisdiction is the gold standard of the ICJ’s legitimacy. After a review of NPT background, Part II analyzes the Marshall Islands’ global legal strategies, and Part III gives account of the ICJ’s waning authority as measured by judgment enforcement, cases involving major powers, and compulsory jurisdiction submission. Part IV recounts the circumstances under which China, France, and the United States withdrew their submission to the ICJ’s compulsory jurisdiction, and Parts V and VI assess whether India or the United Kingdom may do so now.

Finding that withdrawal from either state would not be improbable, that the Marshall Islands’ merits arguments are largely unfounded even if the ICJ believes it has jurisdiction, and that historical trends imply that even a judgment reached by the ICJ would not be enforced, this Article contends that the Marshall Islands’ suits stand to do far more damage to the legitimacy of the ICJ than the suits could positively impact nuclear non-proliferation. Ultimately, this Article finds little long-term merit in the Marshall Islands’ strategy, and great potential loss for the ICJ as the victim of its own idealism. In lamentable irony, the Marshall Islands’ self-lauded efforts may backfire in the face of all that public international law proponents sought to achieve in the past century.

Keywords: NPT, Nuclear Non-Proliferation Treaty, Marshall Islands, India, United Kingdom, Obligations Erga Omnes, International Court of Justice, Optional Clause, Compulsory Jurisdiction, Custom, Customary International Law

Suggested Citation

Davis, Katherine Maddox, Hurting More than Helping: How the Marshall Islands' Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court (March 11, 2015). 25 Minn. J. Int'l L. 79 (2016). Available at SSRN: https://ssrn.com/abstract=2577111 or http://dx.doi.org/10.2139/ssrn.2577111

Katherine Maddox Davis (Contact Author)

Gibson, Dunn & Crutcher ( email )

1050 Connecticut Avenue, NW
Washington, DC 20036
United States

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