The Problem of Legal Inequality between States: A Case Study of the Marshall Islands

Annemarie Smith-Morris

Vol. 40 Associate Editor

In the mid-twentieth century, the United States conducted sixty-seven nuclear tests in the Republic of the Marshall Islands.[1] The tests had an immense and lasting impact on the environmental health of the country and the physical health of its people.[2] In 2014, the Marshall Islands sued nine world powers—China, North Korea, France, India, Israel, Pakistan, Russia, the United Kingdom, and the United States—over their failures to comply with the 1968 Nuclear Nonproliferation Treaty [NPT].[3] The Problem of Legal Inequality The Islands’ Foreign Minister at the time, Tony deBrum, said the lawsuits were a final attempt to generate an international conversation on nuclear disarmament. “Our people have suffered the catastrophic and irreparable damages of these weapons,” he explained, “and we vow to fight so that no one else on Earth will ever again experience these atrocities.”[4] Traditional dispute resolution mechanisms had failed the Marshall Islands. Diplomacy can only be successful when there exists an outcome “both sides prefer to the status quo,” and the nine “Goliaths” sued by this island “David” didn’t see eye-to-eye with the Marshall Islands on nuclear proliferation.[5] Military action was simply never an option.[6] Thus, for the Marshall Islands, legal action seemed the best—and likely only—answer; after all, in the realm of international relations the courtroom is hailed as the great equalizer.[7] The Marshall Islands filed suit in the International Court of Justice [ICJ] and the United States District Court for the Northern District of California, claiming the nuclear nine had failed to “pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race” as required by the NPT.[8] The remedy sought was narrow: a ruling compelling the defendants to take “all steps necessary to comply with [their] obligations.”[9] Yet, to no one’s surprise, not a single case made it past preliminary considerations.[10] Legal Inequality in the ICJ The ICJ’s unequal treatment of sovereign states is a product of the court’s dependence on states’ voluntary submission to its jurisdiction.[11] Of the nine cases the Marshall Islands filed in the ICJ, for example, only three—those against the United Kingdom, India, and Pakistan—were subject to the court’s mandatory jurisdiction.[12] Many of the world’s most powerful players—the United States, Russia, and China—had not submitted to the court, and others, including Pakistan and the United Kingdom, were reconsidering their relationships with the ICJ.[13] This reality not only inhibits the court’s ability to bring certain parties to trial, but it also requires the court to tread lightly; upsetting the status quo might, after all, cause states to defect from the court’s jurisdiction.[14] In the Marshall Islands cases, the court’s balancing act was clear. When the ICJ disposed of the cases in 2016, it held it had no jurisdiction over the matters, as the Marshall Islands had not proved the existence of a dispute between itself and the respondents.[15] However, instead of abiding by previous understandings of what constituted a dispute, the court required the respondents know their views were “positively opposed by the applicant.”[16] This maneuver “raise[d] the bar for accessing the ICJ,” and accordingly ensured its current, powerful members did not feel threatened by the litigation.[17] Legal Inequality in U.S. Courts The case in U.S. federal court was doomed from the start, as it ventured into murky doctrinal waters meant to protect the country from claims like the Islands’. For the case to proceed on its merits, the court had to first determine whether the NPT was enforceable.[18] It did so by applying the criteria announced in Baker v. Carr, which allow for significant judicial discretion.[19]  Over the years, courts have increasingly used this doctrinal leeway to defer to Congress, therefore nearly foreclosing the possibility that the United States could be held accountable to a foreign state—especially one less powerful—in its own courts.[20] As expected, the district court threw out the Marshall Islands’ case, ruling the NPT was not enforceable.[21] The outcomes of the Marshall Islands cases reveal a hard truth: power matters, even before the law. When this last of the traditional dispute resolution mechanisms fails small states, what’s left? Virtual Public Diplomacy: A Solution? Increasingly, small states like the Marshall Islands are finding ad hoc ways to speak their piece.[22] One strategy is to harness the power of public diplomacy, defined as “an international actor’s attempt to conduct its foreign policy by engaging with foreign publics.”[23] While the world is most familiar with the term in the context of Cold War propaganda, public diplomacy is taking on a new look in the age of social media; today, many governments are relying on virtual diplomacy to influence the global public.[24] Just as citizen movements like the Arab Spring were born, bred, and spread across social media, so governments are trying to use the internet to push everything from code literacy[25] to international aid.[26] According to Radu Cucos of the World Bank, “The development of social media tools has changed the way diplomats interact with people….Diplomats have quickly understood that Facebook, Twitter and other similar social media tools provide an opportunity to spread important information in a very fast manner and at almost no cost.”[27] Essentially, governments are now competing not simply for geopolitical influence, but also for virtual influence.[28] Already, the power of virtual public diplomacy has been made clear. For example, after a series of crimes against Indian students in Melbourne, Australia caused a drop in university applications, former Prime Minister Kevin Rudd resolved the problem by posting on Sina Weibo, a social media platform, a promise to investigate the crimes.[29] While states like Russia, Brazil, and the United States are currently winning the war for virtual influence, this does not have to be the case; this is the kind of interaction where small states can shine, given all that’s required is a computer, a cause, and a bureaucrat with some social media savvy. [30] Could effective virtual diplomacy have been a successful tool for the Marshall Islands? Conclusion: Why We Need a Legal Solution to Legal Inequality For the Marshall Islands, popular support for its mission could have been valuable. Using virtual diplomacy to “bump” the cause could have mobilized the global public, who, in turn, could have mobilized their legislatures. That this informal, ad hoc tool exists is somewhat comforting. But it is in no way a true solution to the problem of legal inequality. First and foremost, virtual diplomacy efforts by small states are not immune from formal responses from powerful states. Second, and relatedly, virtual diplomacy does not abide by the rules of the international community.[31] While this can be a good thing, it can also diminish the power of rules the world wants or needs to keep in place. Third, as often as virtual diplomacy is used to advocate for coding, it is used nearly as frequently for more nefarious ends, including terrorism and nationalism. [32] It thus enjoys no inherent legitimacy and is, rather, subject to intense scrutiny.[33] Lastly, it is disquieting to argue small states should simply “go viral” to obtain influence; doing so requires, in essence, a popularity contest. Popular support for nuclear disarmament is vastly different from the ICJ and U.S. courts, arbiters of legal right and wrong, declaring that nine nuclear powers breached their duty to the Marshall Islands. There is no non-legal solution to the problem of legal inequality; only changes within the legal structure itself will suffice to provide true recourse to states large and small.

[1] Peter Weiss, The Marshall Islands Versus the World’s Nuclear Weapons States, Nation (Jan. 26, 2015), https://www.thenation.com/article/marshall-islands-versus-worlds-nuclear-weapons-states/; Marlise Simons, Marshall Islands Can’t Sue the World’s Nuclear Powers, U.N. Court Rules, N.Y. Times (Oct. 5, 2016), https://www.nytimes.com/2016/10/06/world/asia/marshall-islands-un-court-nuclear-disarmament.html; Joshua Keating, Why the Marshall Islands Is Suing the World’s Nuclear Powers, Slate (Apr. 25, 2014), https://slate.com/news-and-politics/2014/04/the-marshall-islands-is-suing-the-world-s-nuclear-powers-for-violating-international-law.html. [2] Weiss, supra note 1; Keating, supra note 1. [3] Dan Zak, He Saw a Nuclear Blast at 9, then Spent his Life Opposing Nuclear War and Climate Change, Wash. Post, (Aug. 24, 2017) https://www.washingtonpost.com/local/he-saw-a-nuclear-blast-at-9-then-spent-his-life-opposing-nuclear-war-and-climate-change/2017/08/24/5b6d10e6-882e-11e7-a94f-3139abce39f5_story.html?utm_term=.87c897e625e0; Press Release, International Court of Justice, The Republic of the Marshall Islands Files Application against Nine States for their Alleged Failure to Fulfil their Obligations with Respect to the Cessation of the Nuclear Arms Race at an Early Date and to Nuclear Disarmament, U.N. Press Release No. 2014/18, 1 (Apr. 25, 2014) [hereinafter ICJ Press Release]; Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1070 (N.D. Cal. 2015), aff’d, 865 F.3d 1187 (9th Cir. 2017). [4] Zak, supra note 3. [5] Brian C. Rathburn, Diplomacy’s Value: Creating Security in 1920s Europe and the Contemporary Middle East 2-3 (2014); Weiss, supra note 1. [6] Even if the Marshall Islands had believed force was the best choice, it had no standing army. Australia-Oceania: Marshall Islands, CIA World Factbook, https://www.cia.gov/llibrary/publications/the-world-factbook/geos/print_rm.html. [7] Marlise Simons, A Former Ground Zero goes to Court Against the World’s Nuclear Arsenals, N.Y. Times (Dec. 2017, 2014), https://www.nytimes.com/2014/12/28/world/a-former-ground-zero-goes-to-court-against-the-worlds-nuclear-arsenals-.html?rref=collection%2Ftimestopic%2FMarshall%20Islands&action=click&contentCollection=world&region=stream&module=stream_unit&version=latest&contentPlacement=5&pgtype=collection; Gerry Simpson, Great Powers and Outlaw States 26, 28 (2004) (“The core idea (of both sovereignty and equality) is that no state is legally superior to another—par in parem non habet imperium….States recognise only one legal superior and that is international law itself.”). [8] Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. U.K.), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 2 (Oct. 5); Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. Pak.), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 2 (Oct. 5); Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. India), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 1 (Oct. 5); Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1070 (N.D. Cal. 2015), aff’d, 865 F.3d 1187 (9th Cir. 2017). [9] ICJ Press Release, supra note 3, at 3; Marshall Islands, 79 F. Supp. at 1070; Treaty on the Non-Proliferation of Nuclear Weapons, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161. [10] Simons, supra note 1; Daniel Cooper, Judicial Courts Can Give No Redress: The Marshall Islands, the United States, and the Ninth Circuit’s View of the NPT, Int’l L. Committee Newsletter (American Bar Association Young Lawyer’s Division) Winter 2018 https://www.americanbar.org/content/dam/aba/administrative/young_lawyers/committee_newsletters/2018/yld_ilc_newsletter_winter_2018.pdf. [11] Katherine Maddox Davis, Hurting More than Helping: How the Marshall Islands’ Seeming Bravery against Major Powers Only Stands to Maim the Legitimacy of the World Court, 25 Minn. J. Int’l L. 79, 80 (2016). [12] Additionally, mandatory jurisdiction wasn’t the only problem: four of the respondent states—North Korea, Pakistan, Israel, and India—were not signatories to the treaty in question, and Israel had never acknowledged its nuclear capabilities. Simons, supra note 1; Weiss, supra note 1. [13] Ikenna Ugboaja, David and Goliath: A Small Nation’s Quest for Global Nuclear Disarmament, Harv. Int’l Rev. (Feb. 10, 2017), http://hir.harvard.edu/article/?a=14504; Sebastian Brixley-Williams, UK Revokes ICJ Jurisdiction over its Nuclear Weapons, Brit. Am. Security Info. Soc’y (Mar 27, 017), http://www.basicint.org/news/2017/uk-revokes-icj-jurisdiction-over-its-nuclear-weapons; Jayanth Jacob, Why India Hopes Pakistan Questioning ICJ Jurisdiction Won’t Hold, Hindustan Times (May 14, 2017), https://www.hindustantimes.com/india-news/why-india-hopes-pak-questioning-icj-jurisdiction-won-t-hold/story-t5plMoTCWgtREKSSeDyJiI.html. [14] Ugboaja, supra note 13. [15] Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. U.K.), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 2, 856 (Oct. 5); Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. Pak.), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 2, 572 (Oct. 5); Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. India), Preliminary Objections, Judgment, 2016 I.C.J. Rep. 1, 276-77 (Oct. 5). [16] Maite de Souza Schmitz, Decision of the International Court of Justice in the Nuclear Arms Race Case, Harv. Int’l L. J. (Nov. 21, 2016), http://www.harvardilj.org/2016/11/decision-of-the-international-court-of-justice-in-the-nuclear-arms-race-case/. [17] Id. [18] Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1070-74 (N.D. Cal. 2015), aff’d, 865 F.3d 1187 (9th Cir. 2017). [19] Id.; See, e.g., Oona A. Hathaway, Sabrina McElroy & Sara A. Solow, International Law at Home: Enforcing Treaties in U.S. Courts, Faculty Scholarship Series. Paper 3851 (2012), https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4845&context=fss_papers. [20] Id.; Cooper, supra note 10. [21] Marshall Islands, 79 F. Supp. at 1074; Republic of Marshall Islands v. United States, 865 F.3d 1187, 1190 (9th Cir. 2017). [22] See, e.g., Alan K. Hendrikson, Ten Types of Small States Diplomacy (unpublished thesis, The Fletcher School of Law and Diplomacy, Tufts University) (available at https://is.muni.cz/el/1423/podzim2008/MVZ157/um/TEN_TYPES_OF_SMALL_STATE_DIPLOMACY.pdf). [23] Id.; N. J. Cull, The Cold War and the United States Information Agency: American propaganda and public diplomacy, 1945–1989 xv (2008). [24] Atsushi Tago, Public Diplomacy and Foreign Policy, Oxford Research Encyclopedias (July 2017), http://politics.oxfordre.com/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-471; Olubukola S. Adesina, Foreign Policy in an Era of Digital Diplomacy, Cogent Soc. Sci. (Mar. 1, 2007), https://www.tandfonline.com/doi/full/10.1080/23311886.2017.1297175. [25]  Philip Seib, Real-Time Diplomacy: Politics and Power in the Social Media Era 41-44 (2012); Andreas Sandre, Digital Diplomacy xix (2015). [26] Brian Fung, Digital Diplomacy: Why It’s So Tough for Embassies to Get Social Media Right, Atlantic (Oct. 17, 2012), https://www.theatlantic.com/international/archive/2012/10/digital-diplomacy-why-its-so-tough-for-embassies-to-get-social-media-right/263744/ [27] Radu Cucos, Virtual Diplomacy – a New Way of Conducting International Affairs?, The World Bank: Information and Communications or Development Blog (Nov. 13, 2012), http://blogs.worldbank.org/ic4d/virtual-diplomacy-a-new-way-of-conducting-international-affairs [28] Id. [29] Digital Diplomacy: Virtual Relations, Economist (Sept. 22, 2012), https://www.economist.com/international/2012/09/22/virtual-relations [30] Id. [31] Ilan Manor, Digital Diplomacy as a Tool for Contesting Reality, Global Policy (Oct. 4, 2017), https://www.globalpolicyjournal.com/blog/04/10/2017/digital-diplomacy-tool-contesting-reality. [32] Majid Alfifi, Parisa Kaghazgaran & James Caverlee, Measuring the Impact of ISIS Social Media Strategy, MIS2 Workshop (2018), http://snap.stanford.edu/mis2/files/MIS2_paper_23.pdf. [33] Digital Diplomacy: Virtual Relations, supra note 29. The views expressed in this post represent the views of the post’s author only.