Transcript
JORIS LARIK: A good example for that would be the approach of the Philippines in the South China Sea dispute which was also adjudicated here in The Hague, the court of arbitration, and their look at the way the Philippines approached the case. They stayed away from grand concepts like sovereignty or historical claims; rather what they did had very specific legal arguments, in that case drawing on the United Nations convention on the law of the sea. Rather technical but it really allowed them to get the sweeping victory that they got. Whether the Marshall Islands could emulate that, that's more questionable since there is also no direct conflict in that sense like yo u would have in the South China Sea so they are a bit limited in that sense. Though another good example, a bit closer in terms of the subject matter, would be actually a case that New Zealand was involved in and that New Zealand was also successful in at the ICJ here in The Hague, the one about nuclear tests against France, where at least New Zealand got out of it a declaration by the court that France had actually acted in an illegal way and had made a unilateral commitment to stop these nuclear tests and could be held to that as well. So, at least in that sense, that's something I think that the Marshall Islands should be aiming for. I think that's a bit what they tried, with reference to certain statements that had been made in multi-lateral fora, to prove that there was a dispute between them and the three nuclear powers but that didn't convince the courts. Certainly they would have to dig a bit deeper to convince the court that there even is a dispute in legal terms.
DOMINIC GODFREY: So that's due perhaps to the lack of proximity, the lack of direct impact from one to the other, is that right?
JL: Well it sounds a bit perverse in a way, but yeah it would make it a bit easier if you're closer to the people you're trying to be suing in an international court because it would just make your case a bit easier. It would definitely make it easier, perhaps not on the merits necessarily but certainly on proving that there is really a dispute, that there's opposed views about your obligations under international law. This now seems to be a bit more difficult, I mean it's not impossible, but so far the Marshall Islands hasn't been able to be successful with that.
Also, what I'm wondering about is whether there's more to be said for bringing more to the fore the history of the Marshall Islands as being exposed to nuclear testing. This historical bit, it certainly featured in their application but wasn't I think seen by the court quite as much the legal argument, more as historical background. But certainly one could think of drawing more on that to just make it all a bit more tangible.
DG: I guess, in that respect though, that would be more pertinent to the United States who did the testing in the Marshall Islands but they do not recognise the International Court of Justice's authority is my understanding.
JL: That is absolutely correct and again that shows you a bit about how the Marshall Islands finds themselves a bit between a rock and a hard place. Yeah you would have the proximity that is absolutely true with the United States so it might be easier to prove that there is an actual dispute there, again regardless of the merits. Whereas the three countries that do recognise the jurisdiction of the court in this case, the relations between the Marshall Islands and them, at least for the court, are too far apart let's say, to such an extent that you can't really say that there's a direct legal dispute between them.
DG: However I guess, with the United Kingdom and the historical testing in what is now Kiribati, which was then Christmas Island. The proximity between the Marshall Islands and the Line Islands is debatably close?
JL: Well yeah, that would be something for the Marshall Islands to argue although again it's easier if there's some direct effects that could be proven, but also it's a bit at odds with the Marshall Islands approach, which again I think from a nuclear disarmament point of view is laudable and that's maybe the whole policy aspect to it, but their case is very prospective. It's about states that fail to do enough for nuclear disarmament, that don't live up to their obligations under the non-proliferation treaty, and that is just a lot more difficult to prove than, let's say, some direct damage that the Marshall Islands or other areas in the Pacific could have suffered from nuclear testing. That would then be more retrospective and to see if there is a form of compensation that might be due. But the case that the Marshall Islands was trying to make now, looking forward, that's very hard to prove under international law. Both at the preliminary stage but probably also later on, on the merits.
DG: From the perspective of the international court of public opinion it is interesting that once again a small Pacific nation has taken the moral high ground and taken on much bigger nations. Like Kiribati on climate change, Marshall Islands is standing on the world stage on behalf of humanity. Just staying in front of the international spotlight is perhaps one of the main goals here. How do they maintain that now?
JL: So I think two avenues are open to the Marshall Islands. At this stage I think one would be, come up with an approach for an international dispute with a bit more flesh to the bones in the sense that at least enough to meet that very first threshold that the court will say okay there is a real legal dispute here that we have to look into a bit more closely. Another idea that might be explored, but that could be legally quite complex too, is pursue certain actions in national courts.
Joris Larik says the Marshalls has been pursuing a case with the United States. A Federal District Court dismissed it in February 2015 but the case is now on appeal at the U.S. Ninth Circuit Court of Appeals.
