SAN FRANCISCO (CN) – The Ninth Circuit ruled Monday that the judiciary lacks the authority to order the United States to fulfill its international treaty obligations to eradicate nuclear weapons, sounding the death-knell for a three-year campaign by the Republic of the Marshall Islands to eliminate the weapons worldwide.
Affirming a lower court's dismissal of the island nation's lawsuit centered around Article VI of the Treaty on the Nonproliferation of Nuclear Weapons (NPT), a three-judge panel ruled in a scathing decision that the provision is not enforceable in U.S. courts and that the republic's claims raised political questions beyond the courts' jurisdiction.
"At bottom, the suit is doomed because diplomatic negotiations among parties to this treaty fall quintessentially within the realm of the executive, not the judiciary," Circuit Judge M. Margaret McKeown wrote for the panel. "Asking the federal court to order the United States to negotiate in 'good faith' on 'effective measures' for nuclear disarmament puts the judiciary in the role of nanny to the executive."
The Republic of the Marshall Islands sued the United States and eight other nuclear-armed nations in 2014, accusing them of violating the 1968 treaty by failing to dismantle their nuclear arsenals. It asked a federal judge to find the United States in breach of its treaty obligations and to order it to convene negotiations within one year to eliminate the weapons.
The treaty prevents non-nuclear nations from acquiring nuclear weapons, and requires nations with nuclear arms to negotiate their elimination. More than 180 states have signed the agreement.
The United States used the Marshall Islands, located halfway between Australia and Hawaii, as a testing ground for nuclear weapons during the first part of the Cold War, detonating 67 nuclear weapons there between 1946 and 1958. A 2016 study by Columbia University researchers found that radiation levels in some parts of the islands are two times higher than what is considered safe. One explosion was so devastating that some residents were permanently displaced.
U.S. District Judge Jeffery White dismissed the domestic suit against the United States in 2015, finding the Marshall Islands lacked standing under the Constitution.
White said the case raised political questions beyond his jurisdiction. Granting the republic’s requested relief – forcing the United States to negotiate with other nations in good faith – would violate the separation of powers because such a decision belongs to the executive branch, he said.
The Ninth Circuit agreed, ruling Monday that Article VI is non-self-executing, or not enforceable in a U.S. court, that the Marshall Islands’ asserted injuries are thus not redressable, and that its claims raise nonjusticiable political questions meant for the executive.