Marshall Islands Nuclear Proliferation Case Thrown Out of U.S. Court

• by Josh Butler (united nations)
• Thursday, February 12, 2015
• Inter Press Service

The Marshall Islands is currently pursuing actions against India, Pakistan and the United Kingdom in the International Court of Justice, for failing to negotiate nuclear disarmament as required in the 1968 Nuclear Non-Proliferation Treaty.3

Action against the U.S. had been filed in a federal court in California, as the United States does not recognise the jurisdiction of the ICJ.

David Krieger, president of the Nuclear Age Peace Foundation, said the U.S. conducted 67 nuclear weapons tests in the Marshall Islands between 1946 and 1958, the equivalent of 1.6 Hiroshima bombs detonating daily for 12 years.

Despite documented health effects still plaguing Marshallese islanders, U.S. Federal Court judge Jeffrey White dismissed the motion on Feb. 3, saying the harm caused by the U.S. flouting the NPT was "speculative."

White also said the Marshall Islands lacked standing to bring the case, and that the court's ruling was bound by the "political question doctrine" – that is, White ruled the question was a political one, not a legal one, and he therefore could not rule for the Marshalls.

Krieger, whose Nuclear Age Peace Foundation supports Marshall Islands in its legal cases, called the decision "absurd."

"I think it was an error in his decision. There were very good grounds to say the Marshall Islands had standing, and this shouldn't have been considered a political question," he told IPS.

"The Marshall Islands know very well what it means to have nuclear bombs dropped on a country. They've suffered greatly, it's definitely not speculative."

The foundation of the multiple cases brought by the Marshall Islands was that the U.S., and other nuclear powers, had not negotiated in good faith to stop the spread of nuclear weapons. White ruled it was "speculative" that the failure of the U.S. to negotiate nuclear non-proliferation was harmful.

Krieger said the Marshalls would appeal the decision to the Ninth Circuit of Appeals. He said the decision set a troubling precedent regarding U.S. adherence to international agreements.

"The U.S. does not accept the jurisdiction of the ICJ, and in this case, the judge is saying another country does not have standing . In essence, it means any country that enters into a treaty with the U.S. should think twice," he said.

"Another country will be subject to the same decision of the court. Where does that leave a country who believes the U.S. is not acting in accordance with a treaty?

"By side-stepping the case on jurisdictional grounds, the U.S. is essentially saying they will do what they want, when they want, and it's not up to the rest of the world whether they keep their obligations."

Krieger said that the judge's comments about the "speculative" nature of the case meant essentially that a nuclear accident or war would have to break out before such a case for damages could be heard.

"It's saying a state must wait until some kind of nuclear event, before damages won't be speculative," he said. "It's absurd that the claim that the U.S. has not fulfilled its obligations to negotiate in good faith to end the nuclear arms race, is called ‘speculative' by the judge."

Marshall Islands had intended to pursue all nine nuclear powers – the U.S., China, Russia, Pakistan, India, the U.K., France, North Korea and Israel – in the ICJ on their failure to negotiate for nuclear non-proliferation.

The Marshall Islands is still pursuing cases in the ICJ against Pakistan, India and the U.K., but John Burroughs, executive director of the Lawyers Committee on Nuclear Policy, said the other cases had stalled as those nations did not accept the compulsory jurisdiction of the ICJ.

"The other six states, the Marshall Islands invited and urged them to come before the court voluntarily, which is a perfectly normal procedure, but none of them have done so," Burroughs told IPS.

Burroughs, also a member of the international team in the ICJ, said China had explicitly said it would not appear before the court.

"Any of those countries could still agree to accept the court's jurisdiction," he said.

He said preliminary briefs had been filed in the India and Pakistan cases, with responses due by mid-2015. A brief will be served on the U.K. case in March.

Burroughs said he doubted the decision in U.S. federal court would impact the cases in The Hague.

"I don't see the decision having any effect at all," he said.

Edited By Kitty Stapp

© Inter Press Service (2015) — All Rights ReservedOriginal source: Inter Press Service

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