Marshall Islands Will Appeal in Nuclear Case Against US

In this June 2014 file photo, Capt. Robby Modad closes the gate at an ICBM launch control facility in the countryside outside Minot, N.D., on the Minot Air Force Base. Charlie Riedel/AP
In this June 2014 file photo, Capt. Robby Modad closes the gate at an ICBM launch control facility in the countryside outside Minot, N.D., on the Minot Air Force Base. Charlie Riedel/AP

UNITED NATIONS -- The tiny Pacific nation of the Marshall Islands is persisting with an unprecedented lawsuit demanding that the United States meet its obligations toward getting rid of its nuclear weapons. It filed notice Thursday that it will appeal a federal judge's decision to dismiss the case.

The island group was the site of 67 nuclear tests by the U.S. over a 12-year period after World War II, with lasting health and environmental impacts, including more than 250 people exposed to high amounts of radiation.

The Marshall Islands filed its lawsuit last year, naming President Barack Obama, the departments and secretaries of defense and energy and theNational Nuclear Security Administration. Obama in 2009 called for "a world without nuclear weapons" and said the U.S. would take concrete steps toward that goal, a declaration highlighted by the committee that awarded him the Nobel Peace Prize months later.

The U.S. is a party to the Nuclear Nonproliferation Treaty, a landmark agreement to stop the spread of nuclear weapons. The United Nations this month will host the treaty's latest five-year review conference.

But the Marshall Islands claims the U.S. is modernizing its nuclear arsenal instead of negotiating in good faith on disarmament, as the treaty requires. The lawsuit seeks action on disarming, not compensation.

A federal judge in San Francisco last month granted the U.S. government's motion to dismiss the lawsuit, saying the Marshall Islands didn't have standing to bring the case.

"Requiring the court to delve into and then monitor United States policies and decisions with regard to its nuclear programs and arsenal is an untenable request far beyond the purview of the federal courts," the judge's order said. It added that the authority to negotiate with foreign countries falls under the government's executive branch, not the judicial one.

The Marshall Islands says the executive branch is the very one that has neglected its disarmament obligations for years.

"We believe the district court erred in dismissing the case," the lead attorney for the Marshall Islands, Laurie Ashton, said in a statement announcing the appeal in the San Francisco-based 9th U.S. Circuit Court of Appeals. "The Marshall Islands, like every party to the NPT, is entitled to the United States' fulfillment of its NPT promise."

The statement also said the nuclear threat is "now magnified by the deteriorating relationship between Russia and the U.S., which between them control over 90 percent of the world's nuclear weapons."

The lawsuit is part of an effort the Marshall Islands launched last year to take on all nine of the world's nuclear-armed nations. It filed suit against each in the International Court of Justice in The Hague, estimating that the countries combined would spend $1 trillion on their arsenals over the next decade.

The other countries targeted were Russia, Britain, France, China, Israel, India, Pakistan and North Korea. The last four are not parties to the NPT, but the lawsuits argued they are bound by the treaty's provisions under customary international law.

The Marshall Islands remains engaged in three active cases at the ICJ, against Britain, India and Pakistan. All three have written consent on file for compulsory jurisdiction, Ashton said, meaning they agree to appear before the court if action is taken against them. China said it doesn't have that consent on file, and the other countries said nothing, she said.

The country and its outspoken foreign minister, Tony de Brum, have been helped in their efforts by the California-based Nuclear Age Peace Foundationand the New York-based Lawyers Committee on Nuclear Policy.

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