Marshall Islands nuclear case not linked to outstanding US compensation | Pacific Beat

Marshall Islands nuclear case not linked to outstanding US compensation

Marshall Islands nuclear case not linked to outstanding US compensation

Updated 29 April 2014, 9:56 AEST

Marshall Islands is not seeking millions of dollars in compensation, its price is much higher.

It's taking legal action against the world's nine nuclear powers claiming they are making no progress to end the arms race and move towards nuclear disarnament.

Lawsuits have been filed at the International Court of Justice in The Hague and at a US Federal District Court in San Francisco.

Marshall Islands' bid is backed by Archbishop Desmond Tutu and the Nuclear Age Peace Foundation, a US-based NGO consulting with the Marshall Islands and its international pro bono legal team.

Presenter: Richard Ewart

Speaker: Laurie Ashton, lead members, legal team

ASHTON: Very good chances of success. The law suits are legally granted based on treaty law and international law and the treaty obligation is clear and the breach is clear as set forth in the documents.
EWART: Are we therefore looking at a fairly quick legal process here or is this one of these international cases that could drag on for a long time?
ASHTON: I suspect more likely the latter. There are defences that could be taken by the respondents that could make this case take quite a long time, but we are in it for the long haul, we are determined.
EWART: Now, of course, you say that you have a strong case, but you are as you already indicated literally taking on the world's powers. They are going to move heaven and earth to try and prevent this thing from every reaching a conclusion, aren't they?
ASHTON: Ah, I think we can assume that they will do everything that they can in that regard, which is unfortunate and right now, the applicant at The Hague, is the Marshall Islands, and they are also the plaintiff in the United States case, but we think it's definitely possible that additional countries will join these proceedings and we'd certainly like to see Australia join in support of these proceedings as well.
EWART: So is there a lobbying process going on to get other countries to join?
ASHTON: Ah, there will be. I think extensive lobbying efforts may be starting tomorrow at the MPT Prep Comm in New York. Countries can move to intervene in the cases at The Hague and they can be added as a plaintiff in the case in the United States. So that's certainly possible.
EWART: That we've seen in the recent judgement that was passed in Australia's favour in its ongoing battle with Japan over whaling that the courts can come up with decisions, and, of course, in the case of the International Court of Justice, in theory, at least, they're decisions are binding. But in the case like this, if the International Court of Justice comes back and says that end the arms race. What happens then?
ASHTON: Well, the respondents are required to engage in good faith negotiations make that happen and the truth of the matter is that in the 44 year history of this treaty, those negotiations have never even been convened. The countries with nuclear weapons have never convened the negotiations in the first place. So step one, when there is an order by the court on this issue will be convene the negotiations.
EWART: How exactly would you expect the case to play out. I mean when will things start to happen in terms of the court process?
ASHTON: Right. So in the United States case, an order was already entered on Friday, requiring the parties to talk with each other and agree on an alternative dispute resolution process. So the defendants, which include Barack Obama and the United States, have already been ordered in that case to start participating.
In the International Court of Justice things take more time, and three of the nations, the United Kingdom, Pakistan and India already have existing consent on file to the jurisdiction of that court, and the other six nations will have the option of declining to participate in those proceedings.
We all hope that they don't decline, but as a matter of international law, they have the right to choose to decline and to not participate.
EWART: What about the financing of an action like this. I mean where is the money coming from? I mean you and other members of the legal team are working pro-bono, but nevertheless, surely it's going to require millions of dollars isn't it, to pursue this case?
ASHTON: It's going to require millions of dollars in legal time and the legal team so far is all working pro-bono. Not a penny has been spent on the lawyers and they have all agreed to that.
In terms of where the money is going to come from to defend the case, I think we all know that these countries have substantial war chests and are able to defend for quite a long time without money becoming an issue.
EWART: Now, of course, Marshall Islands has had a long running battle with the United States over compensation, unpaid compensation due as the result of a nuclear test that was carried out in the Marshalls back in the 50's, of course. Is that what this is really about, to try to as it were, stir Washington up and get them to pay what they owe?
ASHTON: Right. No, these cases are not about compensation for those claims. I will say as a separate matter, since you have brought it up reasonably, that over two-billion dollars in claims have been awarded to Marshallese citizens for the contamination caused by the nuclear weapons testing. However, the United States Congress only funded that settlement in the amount of 150 million, so they've been paid about seven cents in the dollar and they are certainly in a battle with a country over that. But these cases are not about that and they specifically say so. What those claims tell you though is where does a tiny country like this get the courage and the bravery to take on the nine nuclear weapon countries and the courage and the bravery comes out of those experiences that they have and they're determination to not see that happen to any other human being in the future.

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