The dismissal of a lawsuit that sought to force the United States to comply with an international treaty on nuclear nonproliferation was upheld Monday by a federal court in San Francisco.

The lawsuit arose from decades-old U.S. nuclear weapons testing in the Marshall Islands.

The U.S. 9th Circuit Court of Appeals upheld a lower court’s 2015 dismissal of a legal challenge from a group called Nuclear Zero, brought by the Republic of the Marshall Islands.

The suit did not seek money, but asked that the U.S. be found in breach of treaty obligations under international law and the 1970 Treaty on the Non-Proliferation of Nuclear Weapons.

Nerje Joseph, seen here on Majuro in the Marshall Islands in 2014, holds a photograph of herself as a young girl, taken in 1954 when radioactive ash from a Bikini Atoll nuclear test fell on her home atoll of Rongelap. Chad Blair/Civil Beat

According to the 9th Circuit’s panel opinion, the treaty’s Article VI is “non self-executing” and so “not judicially enforceable” when it comes to claims.

The panel also determined that the claims presented in the lawsuit were “inextricable political questions that were nonjusticiable and must be dismissed.”

Republic of the Marshall Islands vs. United States was argued before the appellate court in March. It named President Donald Trump, two Cabinet officials and the National Nuclear Security Administration as defendants.

The Marshall Islands sued the U.S. government in U.S. District Court in 2014. The “genesis” for the lawsuit, as the 9th Circuit panel explained, was the “grim legacy” of the detonation of 67 nuclear weapons in the 1940s and 1950s.

As Civil Beat wrote in its series, The Micronesians, the testing was physically and emotionaly destructive for the Marshall Islands and was the beginning of what would become decades of out-migration for the Marshallese.

Payments to impacted Marshallese, mostly for personal injuries and property damage, eventually totaled $270 million. But a 2012 United Nations report recommended that the U.S. pay $2.3 billion in compensation for the nuclear testing, a view rejected in U.S. courts.

The Bikini Atoll nuclear test, Castle Bravo. The lawsuit rejected by a federal court Monday asked that the U.S. comply with an international treaty on nuclear nonproliferation. Wikimedia Commons

The Marshall Islands did not seek compensation but rather declaratory and injunctive relief “requiring the United States to comply with its commitments under the (Treaty on the Non-Proliferation of Nuclear Weapons) and international law.”

A press release Monday from the nonprofit, nonpartisan Nuclear Age Peace Foundation, included a statement from Laurie Ashton, the lead attorney representing the Marshall Islands.

“Today’s decision is very disappointing,” she said. “But it is also more than that, because it undercuts the validity of the (treaty). There has never been a more critical time to enforce the legal obligations to negotiate in good faith for nuclear disarmament.”

Ashton said the court “failed to acknowledge the pleading of the (Republic of the Marshall Islands), supported by the declarations of experts, that such negotiations have never taken place. At issue was whether Article VI requires the U.S. to at least attend such negotiations, or whether it may continue to boycott them, as it did with the Nuclear Ban Treaty negotiations. To that we have no answer.”

Rick Wayman, director of programs for the Nuclear Age Peace Foundation and a consultant to the Republic of the Marshall Islands in its lawsuit, stated in the press release:

“The Marshall Islanders made a valiant and selfless effort to bring the U.S. into compliance with its existing legal obligations. I deeply appreciate the RMI’s courageous leadership on today’s most pressing existential threat.

Together with willing non-nuclear countries and non-governmental organizations around the world, we will continue to work until the scourge of nuclear weapons is eliminated from the earth.”

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