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The Marshall Islands has asked the Ninth Circuit to revive its case alleging the U.S. has flouted legal obligations under a nuclear disarmament treaty, saying at a hearing Wednesday that as a party to the agreement, the Pacific nation has standing to sue over the United States' failure to “show up” to negotiations.
Laurie Ashton, an attorney for the Pacific nation, asked the panel to reverse U.S. District Judge Jeffrey S. White’s finding that only the executive branch — not the judiciary — had the power to enforce the treaty, saying the case was about “the nature and scope of the legal obligation to pursue negotiations in good faith under Article 6 of Non-Proliferation Treaty.”
She also said Judge White erred in ruling the Marshall Islands had no standing to sue the U.S. under the 1968 international Treaty on the Non-proliferation of Nuclear Weapons, saying the country was a signatory to the treaty and all signatories have the right to see its promise of “negotiations in good faith” enforced.
The panel wanted to know what specific obligation was created by the vaguely worded treaty. Judge Jay Bybee asked whether the words “undertakes to pursue” didn’t temper the binding nature of the negotiation provision.
Judge Susan Oki Mollway wanted to know what discovery might uncover in terms of the intent of the treaty should the case survive the motion-to-dismiss phase. Judge M. Margaret McKeown asked what an injunction would even look like, suggesting, “Dear Secretary Tillerson, you must attend a meeting.”
Ashton said that the Serbian genocide case before the International Court of Justice found the word “undertakes” is commonly used in treaties and is considered a “binding promise.” As for the injunction, she said the scope was up to the court to determine, but she suggested one objective obligation could attend negotiations.
“To comply with your obligation to the treaty, you have to show up, and the U.S. has never once shown up in 70 years,” she said. “Approximately every year, there's a vote in the U.N. on whether to begin negotiations on nuclear disarmament pursuant to this treaty. Every year, the U.S. votes no, does not attend those negotiations and puts out a statement saying, ‘We're not going to accept anything that happens in those negotiations.’ 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 added that an injunction need not tell the executive how to vote, or what to say at negotiations, but only require that the U.S. participate in these annual meetings.
But Department of Justice attorney Sushma Soni said the Marshall Islands, as a foreign sovereign, didn’t have the jurisdiction to sue the U.S. in a domestic court for a violation of international law. She said while the treaty was legally binding, the Marshall Islands were seeking “extraordinary relief,” and a court trying to compel the executive branch to negotiate flouted “100 years of Supreme Court precedent” finding treaty disputes between nations should be solved via international remedies “not by suing each other in their domestic courts.”
She specifically cited the high court’s 2008 Medellin v. Texas decision, which she called “the most full reasoned explanation of how you determine a treaty is self-executing,” and therefore valid under domestic law.
“What the court said was if it is not self-executing treaty, then it does not have domestic legal effect,” she said. “And the way you determine this is you look first and foremost at the intent of the president and Senate, because self-executing versus non-self-executing — this is a domestic law concept, not an international law concept.”
The standing issue stems from the fact that the Marshall Islands haven’t pled a cause of action. Soni used that to argue against Ashton’s contention that Medellin involved a third party invoking a treaty, whereas this case involved two treaty signatories. Soni said the country still hadn’t relied on a statute that gave it the right to plead in federal court.
“Even if this treaty were self-executing, it wouldn't solve the standing and political question problems those apply regardless,” she said. “They claim they can come into this court directly on the treaty, but there is no precedent for that.”
This is not the first time the island nation has sued the U.S. over its nuclear arsenal. In 2010, the U.S. Supreme Court declined to hear claims of Marshall Island residents who said the U.S. still owed $1 billion to compensate for property taken for nuclear weapons testing there in the 1940s and 1950s.
The government is represented by Anthony Joseph Coppolino, Douglas Neal Letter, Sushma Soni and Eric Womack of the Department of Justice.
The Republic of the Marshall Islands is represented by Laurie Ashton, Juli E. Farris, Gary A. Gotto and Lynn Lincoln Sarko of Keller Rohrback LLP.
The case is the Republic of the Marshall Islands v. U.S.A. et al., case number 15-15636, in the U.S. Court of Appeals for the Ninth Circuit.
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