This is the English translation of the speech delivered by Foreign Minister Tony de Brum to the Nitijela (Parliament) of the Republic of the Marshall Islands on February 23, 2015.
On February 3, 2015, the US Federal District Court granted the US government’s motion to dismiss the lawsuit filed by the Marshall Islands seeking to hold the US to its legal obligations to pursue negotiations in good faith for an end to the nuclear arms race at an early date and for nuclear disarmament. On February 6, 2015, the US Embassy in Majuro issued a statement in which it welcomed the Court’s decision. We now wish to explain some of the issues in the February 3rd ruling, provide our position on certain aspects, and respond to certain parts of the US February 6th statement.
Since the Non-Proliferation Treaty (NPT) entered into force 45 years ago, and the US recommitted to its obligations under the NPT in 2010, we believe the time is right for legal action to enforce the US disarmament obligations. Every day that nuclear weapons remain in the world on high alert status, the Marshall Islands and every other country remains threatened. And every day that the US continues to refuse to negotiate for nuclear disarmament, the RMI is denied the benefit of the bargain under the NPT.
The US did not argue the case on the merits, but rather sought dismissal on jurisdictional grounds. The Court upheld the US claims that the RMI did not have standing to bring the lawsuit, and that the case was subject to the Political Question doctrine and thus should be left in the hands of the political branches of government, in this case the Executive. We are disappointed with the Court’s ruling and, respectfully, believe it to be in error.
Regarding standing to bring the case, the Court held that the harm to the Marshall Islands from the US breach of the NPT was speculative, and that even if the RMI were denied the benefit of its bargain under the NPT, the Court could not order the Executive to comply with the law. But the harm is not speculative, and the US Senate history confirms that—referring to vertical nuclear proliferation as the gravest threat to humankind. Indeed, it is hard to imagine the US arguing that harm from the pursuit of nuclear weapons by other countries is speculative. Yet the US Embassy welcomes a decision finding harm from a breach of the NPT to be speculative.
As a party to the NPT, we believe that we have standing to bring this case against other NPT parties, including the US, that are not fulfilling their obligations. But the Court, in dismissing, creates precedent that parties to treaties with the US do not have legal recourse in US courts. Instead compliance with treaties is subject to the unassailable interpretation, politics and disposition of each changing President. Again, it is hard to imagine the US arguing that legal compliance by other countries with respect to the law concerning weapons of mass destruction is subject to the unassailable interpretation, politics and disposition of each sitting Executive.
Regarding the Political Question doctrine, the Court held that it was up to the Executive to fulfill (or, implicitly, decide not to fulfill) its legal obligations to negotiate in good faith back for nuclear disarmament. Contrary to the US February 6th statement, the Court did not rule that the objective of a world without nuclear weapons “can only be achieved ‘politically,’ through patient diplomacy.” Instead, in its February 3rd decision, the Court cited cases that provide that if negotiations fail (or don’t even begin), then war may be the next option, as opposed to a peaceful judicial remedy. We could not disagree more. It is exactly because we seek a peaceful resolution of the issue that we brought the case to the courts.
In its February 6th statement, the US said, “President Obama’s vision of a world without nuclear weapons…remains a key objective of U.S. national security policy.” The RMI welcomes this reassertion of President Obama’s vision. We share this vision. That is why we implore the US to honor its binding NPT Article VI obligations, namely negotiations in good faith relating to cessation of the nuclear arms race and nuclear disarmament. We implore the US to do what we are asking the Courts to order it to do: call for and convene negotiations for nuclear disarmament in all its aspects. Instead of continuing to claim compliance with the NPT while refusing to call for or convene any such negotiations, why doesn’t the US demonstrate compliance by actually calling for and convening such negotiations? Perhaps then the US commitment to achieving nuclear disarmament could become “unassailable,” as it claims it is in its February 6th statement.
Also in its February 6th statement, the US referred to the Marshall Islands as “our friend and ally.” We have the same feeling toward the US. It is with respect and as a sovereign nation that we have gone to court to insist that the US fulfill its obligations under Article VI of the NPT and customary international law. Nuclear weapons are not our friend, nor the friend of the US or any other country. Rather, these weapons are the enemy of all humankind. That is why we will stand up for what we believe in, and we will be appealing the Court’s dismissal of the lawsuit to the Ninth Circuit Court of Appeals, the next step in the American judicial process.
Finally, we note the US recognition, repeated in its February 6th statement, that “the Marshall Islands ‘has played an outsized role in the fight for a safer world.’” The legal action is part of that continued fight.