Islands Defend Challenge to U.S. Nuclear Program
OAKLAND, Calif. (CN) - The Marshall Islands urged a federal judge to advance its claims over the failure of the United States to stop the nuclear arms race.
Located about halfway from northeast Australia and Hawaii, the republic of the Marshall Islands is where the United States ran nuclear tests in the 1950s. This past April, it filed a federal complaint in California against the United States and eight other nuclear-armed nations at the International Court of Justice.
The lawsuit seeks to compel the nuclear nations to comply with their obligations under the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The treaty calls for non-nuclear nations not to acquire nuclear weapons and nations possessing nuclear weapons to negotiate their elimination.
The Marshall Islands said in its complaint that the United States "still continues to modernize and upgrade its nuclear weapons arsenal and to develop programs for extending the life of its nuclear weapons for decades to come, demonstrating that it remains engaged in a nuclear arms race."
"These modernizations and upgrades, to be sure, include enhancing the 'capabilities' of the U.S. nuclear weapons," the action alleges.
In a July 21 motion to dismiss, the United States said that the Marshall Islands lacks standing to bring the complaint, that the court is prohibited from dictating the United States' negotiations regarding nuclear disarmament by the political question doctrine, and that any noncompliance by the U.S. with the treaty is not subject to the court's jurisdiction. The treaty is not directly judicially enforceable in United States courts, according to the motion.
The Marshall Islands opposed that motion Thursday, saying that it has standing because it is one of the signatories of the treaty.
"Like any treaty, the NPT is an agreement among nations, each of which has standing to assert a breach," Keller Rohrback attorney Laurie Ashton wrote for the Marshall Islands. "Plaintiff's harm is that of a party that has honored its NPT obligations but is not receiving the quid pro quo of good faith disarmament negotiations promised by the U.S."
While the United States said its promise to negotiate disarmament under the treaty is conditioned on the conduct of non-treaty parties, the Marshall Islands said the "judicial duty to say what the law is, at times involves cases challenging executive conduct in foreign affairs."
"If the NPT is valid law, then the executive 'must be ordered to'" comply with it and the political question doctrine is not implicated, according to the opposition brief.
Lack of jurisdiction is not an issue either, the Marshall Islands said.
"If the Constitution provides no federal jurisdiction over international agreement disputes, all cases between nations in the Court of International Trade would be unconstitutional," its brief states. "Likewise, all cases in which nations sue the U.S. for extradition treaty violations would be unconstitutional."
Defending its selection of the U.S. District Court for the Northern District of California as proper venue, the Marshall Islands noted that the district is home to one of three labs where the United States carries out nuclear weapons modernization programs.
A hearing on the motion to dismiss is scheduled for Sept. 12 in front of U.S. District Judge Jeffrey White.