David v Goliath: Marshall Islands files lawsuit against US and eight other nations

by NZ Lawyer21 May 2014
The tiny Pacific nation of the Marshall Islands has filed a lawsuit against the United States and eight other countries for allegedly breaching a 46-year-old treaty to dismantle their nuclear arsenals.

The case was filed late last month in US Federal Court, as well as in the International Court of Justice in The Hague, Netherlands.

Between 1946 and 1958, the US detonated 67 nuclear weapons in the Marshal Islands, whose radioactive fallout continue to leave some of the islands uninhabitable.
“Our people have suffered the catastrophic and irreparable damage of these weapons,” says Marshall Islands Foreign Minister, Tony de Brum. “We vow to fight so that no one else on Earth will ever again experience these atrocities.”

However, instead of seeking compensation, the lawsuit aims to compel the world’s nine nuclear nations (the US, Russia, the UK, France, China, Israel, India, Pakistan, and North Korea) to meet the obligations of the Treaty on the Non-Proliferation of Nuclear Weapons.

The law firm Keller Rohrback LLP, which has an office in Santa Barbara, California and specializes in constitutional and treaty law, was retained pro bono.  While the lawsuit is the first of its kind, lawyer Laurie Ashton believes it was properly filed because federal courts have jurisdiction over such claims.

“It’s a matter of treaty law,” she says, “which is both an international and domestic obligation in the United States under the supremacy clause…The whole point of the lawsuits is to bring [the nine nuclear nations] into a forum where they need to address the issue of their unkept promises.”

Ashton says other countries are interested in joining and that a few Nobel Peace Prize winners are already supporting the effort, including South African Archbishop Desmond Tutu and Iranian-born rights lawyer Shirin Ebadi.

As New Zealand lawyers will be aware, this is not the first time a country has sued over nuclear weapons. In 1973, Australia and New Zealand successfully sued France to stop its atmospheric tests over the Pacific.

The response from other governments has so far been minimal and dismissive. Only three of the countries (Britain, India, and Pakistan) recognize the jurisdictional authority of the International Court of Justice (ICJ), so the Marshall Islands is asking all of them to accept the ICJ’s jurisdiction and explain their positions on the case. They have 60 days to reply.

However, it’s difficult to tell how the issues will be resolved.

“I am a peace and nuclear-free-world advocate and would be most grateful for a judicial outcome supporting those goals,” says de Brum. “But I am not a prophet and cannot predict the outcome of these lawsuits.”