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U.S. Court Dismisses Marshall Islands’ Nuclear Zero Lawsuit

By J C Suresh*

TORONTO | SAN FRANCISCO (IDN) –The largest of the thirteen courts of appeals in the United States, the Ninth Circuit Court, has ruled to affirm the U.S. Federal District Court’s dismissal of the Nuclear Zero lawsuit, brought by the Republic of the Marshall Islands (RMI).

The lawsuit sought a declaration that the United States was in breach of its treaty obligations under Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and international law, and asked the court to order that the United States engage in good-faith negotiations. Article VI states:

 Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

Specifically, the Marshall Islands wanted the U.S. to “call for and pursue the negotiations that have never begun – namely negotiations in good faith relating to cessation of the nuclear arms race and nuclear disarmament.” While the lawsuit against the United States was originally filed in 2014 against the Obama administration, the process continued in U.S. court – against the Trump administration.

The suit also contended that the United States clearly violated its legal obligations to pursue nuclear disarmament by spending large sums of money to enhance its nuclear arsenal. The U.S. plans to spend an estimated $1 trillion on nuclear weapons over the next three decades. President Donald Trump has said he wants to build up the U.S. nuclear arsenal to ensure it is at the “top of the pack,” saying the United States has “fallen behind in its nuclear weapons capacity.”

The case was initially dismissed on February 3, 2015 on the jurisdictional grounds of standing and political question doctrine without getting to the merits of the case. Oral arguments were then heard in the 9th Circuit Court of Appeals on March 15, 2017.

The August 1 ruling from the court held that Article VI was non-self-executing and therefore not judicially enforceable. The panel also found that the Marshall Islands’ claims presented inextricable political questions that were nonjusticiable and must be dismissed. (The full opinion can be found at http://bit.ly/9th-opinion)

Laurie Ashton, lead attorney representing the Marshall Islands, described the decision "very disappointing" and "also more than that, because it undercuts the validity of the NPT.

Ashton continued: "There has never been a more critical time to enforce the legal obligations to negotiate in good faith for nuclear disarmament. While the Ninth Circuit decision focuses on its inability to judicially determine the parameters of such negotiations, which are at the discretion of the Executive, with respect, the Court failed to acknowledge the pleading of the RMI, supported by the declarations of experts, that such negotiations have never taken place." 

At issue, said Ashton, was whether Article VI requires the U.S. to at least attend such negotiations, or whether it may continue to boycott them, as it did with the Nuclear Ban Treaty negotiations. To that we have no answer.”

Marshall Islanders suffered catastrophic and irreparable damages to their people and homeland when the U.S. conducted 67 nuclear tests on their territory between 1946 and 1958. These tests had the equivalent power of exploding 1.6 Hiroshima bombs daily for 12 years.

The Marshall Islands did not seek compensation with this lawsuit. Rather, it sought declaratory and injunctive relief requiring the United States to comply with its commitments under the NPT and international law.

Rick Wayman, Director of Programs for the Nuclear Age Peace Foundation (NAPF) and a consultant to the Marshall Islands in their lawsuit, stated, “This ruling from the Ninth Circuit continues the trend of a complete lack of accountability on the part of the U.S. government for its nuclear proliferation, active participation in a nuclear arms race, and refusal to participate in nuclear disarmament negotiations."

Wayman continued, “The Marshall Islanders made a valiant and selfless effort to bring the U.S. into compliance with its existing legal obligations. I deeply appreciate the RMI’s courageous leadership on today’s most pressing existential threat. Together with willing non-nuclear countries and non-governmental organizations around the world, we will continue to work until the scourge of nuclear weapons is eliminated from the earth.”

The Nuclear Age Peace Foundation was founded in1982. Its mission is to educate and advocate for peace and a world free of nuclear weapons and to empower peace leaders. The Foundation is a non-partisan, non-profit organization with consultative status to the United Nations and is comprised of some 80,000 individuals and groups worldwide who realize the imperative for peace in the Nuclear Age.

The Ninth Circuit Court's ruling to affirm the U.S. Federal District Court’s dismissal of the Nuclear Zero lawsuit, brought by the RMI, came 10 months after the International Court of Justice (ICJ) determined on October 5 that it does not have jurisdiction in the nuclear disarmament cases filed against India, Pakistan and the United Kingdom (UK).

By an 8-8 vote, with President Ronny Abraham of France issuing the casting “no” vote, the Court declared that there was not sufficient evidence of a dispute between the RMI and the UK, and therefore the Court lacks jurisdiction. Similar judgments were issued in the cases against India and Pakistan, with those votes coming in at 9-7.

By dismissing the cases on the preliminary issue of jurisdiction, the Court did not examine the merits of the cases. The cases aimed to hold the nine nuclear-armed states (U.S., Russia, UK, France, China, Israel, India, Pakistan and North Korea) accountable for violating international law.

In the 8-8 judgment in the UK case, the following judges voted against the Court having jurisdiction: Abraham (France); Owada (Japan); Greenwood (UK); Xue (China); Donoghue (U.S.); Gaja (Italy); Bhandari (India); and Gevorgian (Russia).

According to the ICJ website, “A Member of the Court is a delegate neither of the government of his own country nor of that of any other State. Unlike most other organs of international organizations, the Court is not composed of representatives of governments.”

It is striking to note, however, that six of the judges come from nuclear-armed states, while the other two (Japan and Italy) are deeply invested in the U.S. “nuclear umbrella.”

The RMI showed remarkable courage and foresight in bringing these cases to the ICJ. When the cases were filed on April 24, 2014, Tony de Brum, Co-Agent of the Marshall Islands, said:

“Our people have suffered the catastrophic and irreparable damage of these weapons, and we vow to fight so that no one else on earth will ever again experience these atrocities. The continued existence of nuclear weapons and the terrible risk they pose to the world threaten us all.”

These cases brought by the Marshall Islands have inspired activists around the world and have demonstrated to other non-nuclear weapon states that it is possible to stand up to the nuclear-armed countries to demand justice. [IDN-InDepthNews – 03 August 2017]

*Note: This article is based on information provided by the Nuclear Age Peace Foundation.

Photo: The Richard H. Chambers U.S. Court of Appeals Building, U.S. Court of Appeals for the Ninth Circuit, Pasadena, California. Credit: Wikimedia Commons.

IDN is flagship agency of the International Press Syndicate

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