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Politic, Cautious, and Meticulous: An Introduction to the Symposium on the Marshall Islands Case

  • Antony T. Anghie (a1)
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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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1 Cherokee Nation v. Georgia, 30 U.S. 1, *15 (1831).

2 See Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. UK) [hereinafter Nuclear Arms], Verbatim Record, CR 2016/5 (Mar. 11, 2016).

3 Robert C. Koehler, Happy Savages: What We Did to the Marshall Islands, Common Dreams (Feb. 15, 2012).

4 Rick Wayman, Day Five at the ICJ: Everybody's Doing It, Nuclear Age Peace Foundation (Mar. 11, 2016); Nuclear Arms, Verbatim Record, supra note 2 at 9.

6 New World Encyclopedia, Berlin Conference of 1884-5.

7 See, e.g., Denys P. Myers, The Mandate System of the League of Nations, 96 Annals Am. Acad. Pol. & Soc. Sci. 74 (1921).

8 South West Africa (Eth. v. S. Afr., Liber. v. S. Afr.), 1966 ICJ Rep. 319 (July 18) [Hereinafter South West Africa Cases]. (Here too the court was evenly divided and the case was decided by the casting vote of the President Percy Spender.) Uniquely, however, the Marshall Islands was characterized as a strategic trust territory.

9 Ingo Venzke, Public Interests in the International Court of Justice—A Comparison between Nuclear Arms Race (2016) and South West Africa (1966), 111 AJIL Unbound 68 (2017).

10 International Trusteeship System, United Nations.

11 See Myres S. McDougal & Norbert A. Schlei, The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security, 64 Yale L. J. 648 (1954) (outlining a famous argument in support of the testing, influenced very much by the Cold War).

12 Coral Davenport, The Marshall Islands Are Disappearing, The New York Times (Dec. 1, 2015).

13 Johnson v. McIntosh, 21 U.S. 543, *40.

14 See Tito v. Waddell (No.2) 3 All ER 129 [1977]; 1977 Ch 106; Julia B. Edwards, Phosphate Mining and the Relocation of the Banabans to Northern Fiji in 1945: Lessons for Climate Change-Forced Displacement, 1 Journal de la Société des Océanistes 121 (2014).

15 See R (On the Application of Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 (Eng.) (especially regarding Lords Carswell and Rodger's discussions); see also, Thomas Poole, United Kingdom: The Royal Prerogative, 8 Int'l J. of Const. L. 1, 146 note 32 (2010); see generally, Stephen Allen, The Chagos Islanders and International Law (2014) (discussing the greater intricacies of the Chagos Islanders’ situation).

16 See, e.g., Certain Phosphate Lands in Nauru (Nauru v. Austl.), Preliminary Objections, 1992 ICJ Rep. 240 (June 26).

17 See Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marsh. Is. v. U.K.; Marsh. Is. v. Pak; Marsh. Is. v. India), Preliminary Objections (Oct. 5, 2016); Ankit Panda, No Luck for Marshall Islands in Nuclear Disarmament Case Against India, Pakistan, and UK, The Diplomat (Oct. 6, 2016).

18 Venzke, supra note 9, at 68 & George R. B. Galindo, On Form, Substance, and Equality Between States, 111 AJIL Unbound 75 (2017).

19 Andrea Bianchi, Choice and (the Awareness of) its Consequences: The ICJ's “Structural Bias” Strikes again in the Marshall Islands case, 111 AJIL Unbound 81 (2017).

20 Surabhi Ranganathan, Nuclear Weapons and the Court, 111 AJIL Unbound 88 (2017).

21 See Nuclear Tests Case (N.Z. v. Fr.), 1974 ICJ Rep. 253, 457 (Dec. 20); Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226 (July 8) [hereinafter UNGA-Nuclear Weapons].

22 UNGA-Nuclear Weapons, supra note 19, at paras. 99–103, 105(2)(F).

23 Ranganathan, supra note 20, at 88 and Venzke, supra note 9, at 68.

24 Vincent-Joël Proulx, The Marshall Islands Judgments and Multilateral Disputes at the World Court: Whither Access to International Justice?, 111 AJIL Unbound 96 (2017).

25 Galindo, supra note 18.

26 Proulx, supra note 24, at 96 & Ranganathan, supra note 20, at 88.

27 South West Africa Cases, supra note 8.

28 David Kennedy, The Nuclear Weapons Case, in International Law, the International Court of Justice and Nuclear Weapons 462 (Laurence Boisson de Chazournes & Philippe Sands eds., 1999).

29 Johnson v. McIntosh, 21 U.S. 543.

30 Jacques Derrida, The Force of Law: the Mystical Foundation of Authority, 11 Cardozo L. Rev. 919 (1990).

31 John Donne, Hymn to God in My Sickness. (The crucial nuclear test in New Mexico that preceded the Hiroshima and Nagasaki bombings was named “Trinity” by Robert Oppenheimer. When asked why he chose that title, he referred to this poem by Donne, although the Trinity is more explicitly referred to in another of Donne's poems, Holy Sonnet 14—“Batter my heart three person'd God.” The startling imagery of this poem too is eerily evocative: “That I may rise, and stand, o'erthrow me and bend/Your force to break, blow, burn and make me new.”).

32 Bianchi, supra note 19 at 81.

33 See UNGA-Nuclear Weapons, Dissenting Opinion of Judge Weeramantry, 1996 I.C.J. 207, 219.

34 Bianchi, supra note 19.

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