Sue Me, Part II:   The Marshall Islands Pushes the Nuclear Weapons States on Their “Good Faith” Deficits, Dr. Robert Zuber

20 Mar

ICJ (2)

There is a line not far off the United Nation’s home page that indicates what UN officials imagine the role of journalists to be: Journalists who cover the United Nations play an important part in its work, because they help explain to the public what the Organization does and why. 

There are several ways to interpret this, but the most obvious is to assume that the job of journalists is to act as conduits for the promotion of UN activities, largely employing the words with which the UN seeks to have those activities conveyed.  The assumed role of journalists, it would appear, involves some measure of capitulation to the dominant narrative, pushing the soundbites that elevate the stature and impact of the UN in ways that are likely misleading – explaining away mistakes and even missing some important ways in which the UN adds value beyond the fringes of policy centers.  After all, in a highly competitive, branded environment, we are as likely to lose sight of the places where we add value as the places where we have failed to add it.

What we need from journalists, with all due respect to the UN’s web content, the pressures of the media market and the unpredictability of editors is to be attentive, thoughtful and, to the extent any of us can be, balanced.  We need journalists who strive to see the whole picture, who eschew easy abstractions focused on political power or celebrity scandal, who resist the pages handed out for them to read in favor of pages they investigate for themselves.

And most of all, we need journalists who flock to the places where matters of genuine importance are taking place, matters where lives are potentially being saved, where threats are being vanquished, where longstanding prejudices are being overcome, where awareness can swiftly lead to action on some of the critical issues facing our planet.   Those of us who supplement journalism with active social media know how to get to the scenes of impact, but professional journalists most often bring a more disciplined eye.

From March 7 to March 16 before the International Court of Justice in The Hague, one longstanding threat to the human race came a bit closer to being vanquished. A superb team of legal experts – with leadership from Dutch lawyer Phon van den Biesen and HE Tony deBrum, Foreign Minister of the Marshall Islands (and including John Burroughs of the Lawyers Committee on Nuclear Policy) — argued persuasively that the nuclear weapons states have manifestly failed in their obligations under customary international law and the provisions of the Nuclear Non-Proliferation Treaty (NPT) to pursue “in good faith” negotiations towards a nuclear-disarmed world.

The cases entitled, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (www.icj-cij.org/docket/index.php?p1=3&p2=3&code=miuk&case=160&k=ef) also brought to the court legal teams of the three nuclear weapons states – United Kingdom, Pakistan and India – which had previously accepted compulsory jurisdiction of the Court regarding adjudication of these claims of obligation. (For more on these cases, see https://www.wagingpeace.org/international-court-of-justice-concludes-hearings-in-preliminary-phase-of-historic-nuclear-disarmament-cases/).

While a comprehensive review of this process is beyond our competence, the arguments of the nuclear armed states seemed to us simultaneously vigorous and fatuous, attempting as they were to make the case that the jurisdiction which they had already accepted did not now apply, while also seeking to re-write history such that the weapons each state has unilaterally pursued and now seeks to modernize are somehow “consistent” with legal obligations to negotiate towards nuclear disarmament.   Perhaps even more remarkable, states seem to have been largely oblivious to what is quite a “high character” gesture by Foreign Minister deBrum of the Marshall Islands.   The Minister was consistent throughout that his country was not seeking punitive damages, financial compensation or reparations in any form, but was rather seeking legal remedy that would help to drive meaningful (and irreversible) policy change regarding any alleged “right” to ignore disarmament obligations.

Despite the damage inflicted on the islands and its peoples from years of above-ground nuclear testing, the Marshall Islands early on in this process took the prospect of financial compensation off the table.  The “compensation” of preference was a judgment that nuclear weapons states have simply not fulfilled their obligations under customary international law, and that the tangible commitment to “good faith” negotiations was necessary to satisfy both the judgments of the court and the people of the Marshall Islands that their longstanding and radiation-soaked sacrifices could serve a higher calling – a world once and for all free of nuclear weapons.

There were other matters about this case that were intriguing from the vantage points of policy and media. First, we have to admit that we don’t quite understand what appears to be incessant squabbling over relevant lenses – legal, humanitarian, moral – through which the question of nuclear weapons possession can finally be put to rest.   The skillfulness of the plaintiffs’ arguments in this case was matched by the compelling, kind and far-reaching nature of the relief being sought, not treasure in the conventional sense but the treasure of the greater good.  In these three legal cases, what is at stake is nothing short of our ability to have confidence in international law as applied to the dangers posed by the possession of these potentially “ecosystem destroying” weapons.

Second, while all arguments stayed fairly close to issues of admissibility and jurisdiction that dominated so much of the three state “defenses,” there was an under-current in the room that these three cases might create “jurisdiction” of another sort in the form of “good faith” negotiating pressure on the (majority) nuclear weapons states that chose to stay away from this case.   It surely occurred to the ICJ judges – as it must have for the Marshall Islands legal team – that it is a short distance from precedents established in these cases to accusations of “good faith” negotiating failures on the part of the other weapons possessors, including and especially the two largest possessing states.   The UK’s “one hand clapping” reference notwithstanding, there is reason to believe that such precedents coupled with political pressure from the “humanitarian” sector and moral pressure from the faith communities might finally be sufficient to get us on a path characterized by something other than pious statements advocating disarmament followed closely by negotiating intransigence.

By any relevant standard, this process before the ICJ would seem to rise to a level of importance –politically, symbolically and legally – for it to have received wider attention from both professional journalists and social media advocates for disarmament.  While grateful to the outlets and organizations that covered the cases (and even in the latter instance funded the participation of the Marshall Islands legal team), we simply cannot fathom how so much of this important work remained in the media shadows.   There is so much about peace and security advocacy that is bogged down by duplicitous state interests, distracted NGOs, even a lazy press.  This is one instance when our collective eyes and ears should have taken better notice.

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