Ninth Circuit Hesitant to Get Into Nuclear Disarmament

SAN FRANCISCO (CN) — An attorney for the Marshall Islands told a skeptical Ninth Circuit panel this week that the federal government must comply with its international treaty obligations to eliminate nuclear weapons around the world.

Though the appellate panel did not indicate at the Wednesday hearing how it would rule, it pummeled counsel for the Marshall Islands while lobbing softball questions to a Department of Justice attorney.

The Republic of the Marshall Islands sued the United States and eight other nuclear-armed nations in April 2014, accusing them of violating the 1968 Treaty on the Nonproliferation of Nuclear Weapons by failing to dismantle their nuclear arsenals.

The treaty prevents non-nuclear nations from acquiring nuclear weapons, and requires nations with nuclear arms to negotiate their elimination.

The United States used the Marshall Islands, halfway between Australia and Hawaii, as a testing ground for nuclear weapons from 1946 to 1958, setting off 67 explosions there. A 2016 study by Columbia University researchers found that radiation levels in some parts of the country are twice as high as what is considered safe. One explosion was so devastating that some residents were permanently displaced.

“Our burden and experiences with nuclear detonation must never again be repeated,” the republic’s government said in an October 2016 statement after the International Court of Justice dismissed its lawsuit there.

U.S. District Judge Jeffery White dismissed the federal lawsuit in February 2015, finding that the Marshall Islands lacked standing under Article III of the Constitution.

White said the case raised political questions beyond his court’s jurisdiction. Granting the republic’s requested relief — that the United States negotiate with other nations in good faith — would violate the separation of powers, he said, because such a decision belongs to the executive branch.

Seeking reversal on Wednesday, Laurie Ashton, with Keller Rohrback in Phoenix, told the court that the Nuclear Nonproliferation Treaty is legally binding, and that the United States has a legal obligation under it to negotiate.

Ashton said the United States has consistently refused to attend yearly treaty negotiations at the United Nations, and has issued statements that it will not accept any outcome of those negotiations.

Though the Marshall Islands asked the district court for a declaration that the United States breached the treaty and an order compelling it to convene negotiations within one year, Ashton told the panel on Wednesday that a directive compelling it merely to attend meetings would be sufficient. That directive need not include instructions on what to say at the meetings or how to vote, she said.

“Once you define the duty as at least saying you have to show up, which has never happened, then you can decide the scope of the injunctive relief,” she said. “The objective criterion to satisfy this legal obligation is, you have to show up, and they have never shown up.”

But Ninth Circuit Judge M. Margaret McKeown and U.S. Senior District Judge Susan Oki Mollway, sitting by designation from Hawaii, questioned whether the treaty is enforceable domestically. If it is enforceable only at the international level, a domestic court may not have authority to order relief.

Department of Justice attorney Sushma Soni said the treaty contains no provision for domestic enforcement. That means it has no implementing legislation that provides a party a cause of action on which to sue in a U.S. court, she said, echoing arguments made in the government’s answering brief to the Ninth Circuit.

“There is nothing that actually gives them the right to come into court,” Soni said, adding that Senator J. William Fulbright, who was chairman of the Senate Foreign Relations Committee when the treaty was signed, repeatedly told the Senate that the treaty would not be enforceable domestically.

“The relief the plaintiffs are seeking goes against over 100 years of Supreme Court precedent, and the precedent of this court, and international legal norms, longstanding norms, saying that when two nations have a dispute about what treaty provisions mean or whether one of them is in compliance, the way that they resolve that dispute is with recourse to international remedies, and not by suing each other in their domestic courts,” Soni said.

Ashton disagreed on rebuttal, telling the panel that the executive has the power to negotiate.

“It does not make sense to say you need legislation to empower the executive to negotiate, because the executive has that power,” she said.

In the lawsuit at the International Court of Justice in the Netherlands, the Marshall Islands sued the United States and eight other nuclear-armed nations: the United Kingdom, Russia, France, China, Israel, India, Pakistan and North Korea –

That court ruled in October 2016 that it did not have jurisdiction to hear the merits of the cases against the United Kingdom, India and Pakistan.

The remaining nations ignored the cases against them because they do not recognize the court’s compulsory jurisdiction.

Ninth Circuit Judge Jay Bybee rounded out the panel.