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Nuclear Zero Lawsuit by Marshall Islands Appealed to Higher Court via Reader Supported News

By Jane Ayers

Desmond Tutu states lawsuit “good for humanity,” and all U.S. mayors agree in Resolution to back the nuclear disarmament lawsuit

An interview with David Krieger, President of the Nuclear Age Peace Foundation (Santa Barbara, California), and Consultant to the Marshall Islands

Q: The “Nuclear Zero” lawsuit filed by the Republic of Marshall Islands (RMI) against the nine nuclear nations to adhere to the Non-Proliferation Treaty (NPT) was denied in February by Judge Jeffrey White in U.S. Federal District Court (SF). RMI Foreign Minister Tony de Blum wants the U.S. and other nuclear nations to negotiate in good faith for nuclear disarmament, so why did this lawsuit get denied, and is the Appeal brief filed on July 13th an indication of ‘no backing down’ by the Marshall Islands?

Krieger: The lawsuit against the United States in U.S. Federal District Court was denied on jurisdictional grounds, having to do with standing and the political question doctrine. The Marshall Islands and its legal team believe the judgment was in error, and the ruling was appealed to the Ninth Circuit Court of Appeals (SF) on July 13th.

Q: Judge Jeffrey White’s decision noted that the Non-Proliferation Treaty’s fundamental purpose is to slow the spread of nuclear weapons, and to bar the non-nuclear countries from acquiring nuclear weapons. However, the Marshall Islands lawsuit focuses on the continuing breach of the treaty’s nuclear disarmament obligations. Do you think the judge’s decision to dismiss this case was based on a fundamental difference in the interpretation of the NPT’s core purpose? Do you think the number of groups filing Amicus Briefs with the Appeal [in support of the Marshall Islands] indicates that total nuclear disarmament should be seriously addressed, instead of just modernizing the arsenals?

Krieger: The judge was not correct in focusing only on the treaty’s provisions for preventing the spread of nuclear weapons. A critical element of the Non-Proliferation Treaty is Article VI, which calls for negotiating an end to the nuclear arms race at an early date, and achieving nuclear disarmament through good faith negotiations. The judge omitted from his decision reference to the importance of the nuclear disarmament provisions of the NPT. Many parties to the NPT consider the nuclear disarmament obligations to be the most important obligations of the treaty, and certainly a tradeoff for preventing proliferation to other nations. The goal of the treaty is to obtain a world with zero nuclear weapons – no proliferation of nuclear weapons, and good faith negotiations for nuclear disarmament by the countries that already have nuclear weapons.
Krieger: The Marshall Islands also brought the Nuclear Zero lawsuits against all nine nuclear-armed nations to the International Court of Justice. However, the way the ICJ works is that only the countries who accept the compulsory jurisdiction of the court can be held into the lawsuits. Among the nine nuclear armed countries, only India, Pakistan, and the United Kingdom accept the court’s compulsory jurisdiction. The other six countries, including the U.S., do not accept the court’s compulsory jurisdiction, and can only be invited to join the case. None of these six have joined thus far. The legal system at the international level is equivalent to a situation where someone is injured by corporate misconduct, and the injured party would have to invite the defendant to court, rather than there being compulsory jurisdiction to assure the defendant does not have a choice about showing up in court.

That is an important reason why a separate case was initially brought against the U.S. in U.S. Federal District Court (SF). If the U.S. can’t be held to account for its treaty obligations at the International Court of Justice, and it also can’t be held to account in its own federal courts, then how can any country have confidence in entering into treaty obligations with the U.S.?

The Marshall Islands can still prevail in their cases at ICJ against India, Pakistan, and the U.K., since these three countries have compulsory jurisdiction. Should the Marshall Islands win its case against the U.K., it would have important implications for the other four nuclear-armed countries that are parties to the NPT. If the international court declares that the U.K. is not in accord with its obligations under the treaty, then that would reflect on the similar obligations owed by the U.S., Russia, France, and China.

But a victory in these cases will be won not only in the courtroom, but in the court of public opinion. People everywhere need to understand that the nine nuclear-armed countries are not fulfilling their obligations to end the nuclear arms race, and to achieve nuclear disarmament. Quite the opposite, they are engaged in modernizing and improving their nuclear arsenals. The people of the world have to say to their leaders, “Enough is enough.” If we want to have a human future, we need to stop playing nuclear roulette.
I consider the current approach of the U.S. and the other nuclear weapon states to modernizing their nuclear arsenals to being akin to playing nuclear roulette. It is like metaphorically loading nuclear weapons into the chambers of a six-shooter, and pointing the gun at humanity’s head.


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