On July 21, 2014, the United States of America filed a Motion to Dismiss in the lawsuit filed by the Republic of the Marshall Islands in U.S. Federal District Court. The U.S. makes many outrageous claims as to why this lawsuit should be dismissed. Taken individually or as a whole, these arguments are extremely concerning.
The U.S. does not argue that it is in fact in compliance with Article VI of the nuclear Non-Proliferation Treaty (the basis of the lawsuit). Instead, it argues that there is nothing that any country can do in a U.S. court of law about its non-compliance. In the motion, the U.S. seeks to avoid the Court getting to the merits of the case by challenging the lawsuit on five different grounds:
- Plaintiff does not have standing
- Political Question Doctrine
- The NPT is not self-executing
- Venue is improper
- Statute of limitations
A response from the Republic of the Marshall Islands is due by August 21, 2014, and the U.S. reply is then due by September 8, 2014. An initial hearing is currently scheduled in Oakland, California, for September 12, 2014.
Below are some selected quotes (in italics) from the government’s Motion to Dismiss, followed by my comments.
From the Introduction
If Plaintiff believes the United States has breached its treaty obligations, it may pursue the issue as a matter of foreign relations, rather than trying to manufacture a cause of action in federal court.
This is exactly what many non-nuclear weapon states, including the Marshall Islands, have sought to achieve during the 44 years that the NPT has been in force. The U.S. has actively boycotted numerous recent attempts by nations to address the issue as a matter of foreign relations, including the Open-Ended Working Group (2013) and the conferences on the humanitarian impact of nuclear weapons in Norway (2013) and Mexico (2014). Additionally, the U.S. sent a low-level representative to the UN High-Level Meeting on nuclear disarmament on September 26, 2013, while conducting a test launch of a Minuteman III Intercontinental Ballistic Missile – the U.S.’s land-based nuclear missile – on that date.
Argument 1: Plaintiff does not have standing
Such generalized and speculative fear of the potential danger of nuclear proliferation does not constitute a concrete injury required to establish injury in fact.
So in the case of nuclear weapons, what exactly would constitute a concrete injury? Death from a nuclear explosion or the ensuing radioactive fallout?
The United States is not the only State with nuclear weapons, and the United States alone cannot therefore be identified as the source of the plaintiff’s purported injury.
The Marshall Islands specifically chose to file lawsuits against all nine countries that possess nuclear weapons (United States, Russia, United Kingdom, France, China, Israel, India, Pakistan, North Korea) because, in the eyes of RMI, all nine nations are guilty of violating international law. Obviously RMI could not sue the other eight nations in U.S. court; accordingly, they filed nine applications at the International Court of Justice (ICJ). Unfortunately, the U.S. and five other nuclear-armed nations do not accept the compulsory jurisdiction of the ICJ and may elect to avoid the lawsuits in that venue. The United Kingdom, India and Pakistan are the only nuclear-armed countries that accept compulsory jurisdiction to the ICJ.
Moreover, it is entirely speculative whether, should this Court declare the United States in breach of its Article VI obligations and order the United States to call for and convene negotiations for nuclear disarmament, any other nuclear weapon state would agree to participate in such negotiations, let alone whether such a conference would lead to the cessation of the nuclear race or nuclear disarmament.
The U.S. lawsuit specifically does not attempt to dictate the terms or outcomes of any negotiations – it simply wants negotiations to occur.
Whatever the nature of that benefit, this Court could not provide relief that would remedy that alleged harm because such a remedy necessarily depends on the actions of other State Parties to the Treaty not before this Court.
To repeat my previous point, the lawsuit seeks the commencement of negotiations. If other State Parties refuse to come to the table or do not negotiate in good faith, that is an issue that will need to be addressed. What is stopping the United States from attempting in good faith to convene such negotiations?
Argument 2: Political Question Doctrine
As an initial matter, an order of this Court declaring the United States in violation of its international Treaty obligations would squarely contradict, and interfere with, the position of the United States that it is “in compliance with all its obligations under arms control, nonproliferation, and disarmament agreements and commitments.”
That’s the point of the lawsuit. Just because you say something (the U.S. is “in compliance”) doesn’t mean that it is true. There is clear controversy here, and the case should receive a full and fair hearing in the Court.
Even if this Court deemed it proper to decide whether the United States is in breach of its international obligations, it would have no standards by which it could determine, inter alia, the framework for future negotiations, or decide whether future negotiations would be sufficient.
This lawsuit does not seek those things. It seeks commencement of negotiations in good faith.
Indeed, this Court’s involvement in the NPT regime and multilateral disarmament negotiations could have myriad unanticipated consequences. For example, the arbitrary “one year” timeframe sought by plaintiff or the absence of nations not before this Court would present entirely new variables to confront in negotiations.
The lawsuit seeks a declaration that the U.S. must convene negotiations in good faith within one year. That is not arbitrary. Article VI of the NPT calls for negotiations “at an early date.” The NPT entered into force in 1970. Forty-four years (or 45 or 46 years by the time a judgment is rendered) is much longer than an early date.
Argument 3: The NPT is not self-executing
Such language does not suggest that Article VI was intended to be enforced in federal courts. Indeed, Article VI “is… silent as to any enforcement mechanism” in the event of non-compliance.
If the U.S. would comply with Article VI, there would not be any need to seek an enforcement mechanism. Even if the treaty is “silent” about an enforcement mechanism, it doesn’t mean that there should not be one if a party is blatantly in violation.
Because the issue of judicial enforcement of Article VI of the NPT was not a central feature of the ratification debate, the record lacks any indication that Article VI was intended to be enforceable in domestic courts.
Perhaps those debating ratification in the U.S. Senate in the late 1960s did not envision that, 44 years after the treaty entered into force, not even a glimmer of good faith negotiations would have taken place.
The “infraction becomes the subject of international negotiations and reclamations… It is obvious that with all this the judicial courts have nothing to do and can give no redress.”
Part of the case against the U.S. in this lawsuit is that it has refused to participate in multilateral forums such as the Open-Ended Working Group. Without a willingness to participate in good faith in international negotiations, what other option does an aggrieved party have than to bring the matter to the Court?
Argument 4: Venue is improper
However, it is unclear how that fact [that the National Nuclear Security Administration has a “nuclear weapons lab” in this district] bears anything more than a tangential relationship to this case when plaintiff’s claims are based on an alleged failure to conduct international negotiations, and plaintiff states expressly that it “is not requesting that the U.S. be compelled toward unilateral disarmament.”
Since its founding in 1952, Lawrence Livermore National Laboratory has been deeply involved in research, design and testing of U.S. nuclear weapons. Today, nearly 90% of the annual budget of Livermore Lab is dedicated to nuclear weapons design, development, testing and maintenance. By continuing to fund the Livermore Lab at this rate, the U.S. is demonstrating a distinct lack of good faith in working to end the nuclear arms race and achieve nuclear disarmament.
Argument 5: Statute of limitations
However, the alleged “continuation” of the purported wrong does not entitle plaintiff to delay unreasonably in pursuit of a legal remedy.
The U.S. has had 44 years since the NPT entered into force to pursue fulfillment of its Article VI obligations. Instead of fulfilling its obligations, the U.S. continues to engage in Life Extension Programs to modernize its remaining nuclear arsenal and add new military capabilities to some of its nuclear weapons. The U.S. and the other four permanent members of the UN Security Council (Russia, United Kingdom, France, China) have spent years working on a glossary of terms to talk about nuclear weapon issues. It is still not finished. That’s what I call an unreasonable delay. There are no negotiations on the horizon among the “Nuclear Nine” without this legal action.
Here, the issuance of declaratory (and associated injunctive) relief would be contrary to the public interest, as it would risk interfering with the efforts of the Executive Branch in the foreign and military arenas, where discussions regarding the appropriate steps in support of nuclear disarmament are ongoing. Indeed the next review conference on the NPT is scheduled for 2015 at the United Nations in New York, and, as always, the matter of efforts under Article VI will be subject of discussion among the multitude of State Parties.
The U.S. appears to be quite happy with the snail’s pace of NPT Review Conferences. To state that it is contrary to the public interest to negotiate in good faith for an end to the nuclear arms race and nuclear disarmament is shocking, shameful and nonsensical. There are no efforts by the Executive Branch to comply with Article VI of the NPT. The “appropriate steps in support of nuclear disarmament” are clearly spelled out in Article VI itself: negotiate. If you’re not convening a meeting, if you’re not sitting around a table talking about how to get to the end goal in a reasonable timeframe, your efforts are insufficient.
Plaintiff should not now be permitted to raise its claims in disruption of the diplomatic context that has prevailed for a generation.
I don’t think any comment is needed on this point. The U.S. government makes it clear how they feel about the status quo around nuclear weapons.
Further Reading
To read the initial complaint filed by the Republic of the Marshall Islands against the United States on April 24, 2014, click here.
To read the U.S. Motion to Dismiss filed on July 21, 2014, click here.
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