MARSHALL ISLANDS – A senior researcher at a Dutch think tank says it’s disappointing for the Republic of Marshall Islands (RMI) that their case against three nuclear powers has been thrown out so early by the International Court of Justice (ICJ).

The RMI argued India, Pakistan and the UK had failed to honour the nuclear non-proliferation treaty.

On October 5, the ICJ ruled there was an absence of dispute between the parties and upheld the “objection to jurisdiction” raised by each of the nuclear powers.

The UN’s highest court found in each instance it could not proceed to the merits of the case.

It is the first time a case did not meet the threshold for being considered. There are no grounds for appeal.

The Hague Institute for Global Justice’s Dr Joris Larik told Radio New Zealand’s Dateline Pacific that if the Marshalls want to have another go at an ICJ judgement, they’ll have to come up with more specifically targeted legal arguments.

“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 by the Court of Arbitration.

“The Philippines 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 you would have in the South China Sea so they are a bit limited in that sense.

“Another good example, a bit closer in terms of the subject matter, would be actually a case that New Zealand was successful in at the ICJ, 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 multilateral 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.

“It sounds a bit perverse in a way, but it would make it a bit easier if you’re closer to the people you’re trying to sue 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 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.

He agreed it would be more pertinent to sue the United States who did the testing in the Marshall Islands but the US does not recognise the International Court of Justice’s authority.

“That shows you a bit about how the Marshall Islands found themselves between a rock and a hard place.

“You would have the proximity 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.

“I think from a nuclear disarmament point of view, what the Marshall Islands tried to do is laudable but their case was 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 – that is a lot more difficult to prove than 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.

“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.

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 US Ninth Circuit Court of Appeals.

- Dateline Pacific