Marshalls 'in to win' nuclear disarmament case

Transcript

The Marshall Islands is planning to go as far as possible to win a case over nuclear disarmament despite a setback in a United States court last week.

The islands were the scene of massive US nuclear tests in the 1950s and the Republic is suing Washington and eight other nuclear powers for failing in their obligation to negotiate nuclear disarmament.

The US District Court last week dismissed the lawsuit saying the harm claimed by the Marshall Islands from breaching the Treaty on Non-Proliferation of Nuclear Weapons was speculative and it had no standing to bring a claim.

The separation of powers principle was another basis for the dismissal.

A lawyer acting for the Marshall Islands, Laurie Ashton, told Sally Round an appeal is planned in the US and there will be little effect on the other cases coming up at the International Court of Justice.

LAURIE ASHTON:  We disagree with the decision respectfully. We believe the Marshall Islands has standing not because of its grave injuries from the testing but because as a party to the treaty it, by law, has standing to allege any breach of that treaty, that that's how treaties work and any party to the treaty has standing to allege a breach. We also believe that the United States Senate history clearly confirms the risk of nuclear proliferation and its link to the disarmament obligation in the treaty. So a finding that that link is speculative is obviously something that we strongly disagree with.

SALLY ROUND: So how big a blow was this decision in the first instance for this case that you're bringing?

LA: Well it's disappointing. We had oral argument in the case that lasted for about an hour and we had very strong arguments on every issue that the United States government claimed and certainly the ruling is disappointing but that's why we have appellate courts so that the parties aren't subject to the thoughts of just a single judge but you can take it up to a panel of additional appellate judges to look at it. So it's disappointing but it was never thought that the District Court would be the end of this case.

SR: And now of course you are also bringing other cases in the International Court of Justice against the other parties to the agreement. What effect do you think this decision wil have on those cases?

LA: Very little. That court is fundamentally a different court of jurisdiction and it fundamentally covers different types of disputes. The United States does not consent to the jurisdiction of the International Court of Justice  so the case against it is not going forward there. The three cases that are currently going forward there are the cases against India, Pakistan and the United Kingdom and I don't expect the federal judge's ruling in the US case in the United States of America to impact those cases. To further answer your question, one thing we have to remember is that the court in San Francisco, the judge found that the United States constitution gives the President the authority to negotiate treaties. This case on breach of a treaty can't go forward because of the President's authority to negotiate treaties. But that fundamentally is not at issue in the cases at the International Court of Justice.

SR: So more hope then of getting some success at that court?

LA: I am hopeful of having success at that court and I'm also hopeful of having success at the appellate level in the United States. Boiled down, this issue of the constitutional authority in the United States is one question really. Its 'does the power to enter into treaties also give the President the power to breach them but simultaneously claim to be in compliance?' and our position is clearly that the power to enter into treaties is not and never has been the power to breach those treaties while claiming to be in compliance with them.

SR: Now this case is being seen as somewhat of a "David against Goliath" case. How is the Marshall Islands managing to fund this?

LA: The lawyers are doing the work 'pro bono' and speaking for myself and for my firm, we're happy to do so.

SR: And the Marshall Islands is really staking a lot on this aren't they as an independent voice against nuclear testing.

LA: I think the Marshall Islands are among the bravest people, certainly among the people I know, in terms of siding against nuclear weapons and some of that comes from their tragic and horrible experience with the United States testing there. I think what's implicit in your question is it takes a great deal of determination and courage to bring lawsuits against what some people believe are the biggest and strongest countries on the planet, the nuclear-armed countries.