Marshall Islands Lawsuit in US Federal Court UpdatePosted: August 29, 2014
Hat tip to Maya Brehm for sending me this link, which gives some updates on the RMI’s lawsuit against the US, in US federal court, which is a counterpart to its suit against the nine nuclear weapons possessing states in the ICJ. At the link, you can find the RMI’s lawyers’ submission in opposition to the government’s motion to dismiss. For the non-lawyers out there, it is typical for a defendant to make a motion to dismiss a case early on, in the hopes that the court will decide that the plaintiff’s suit is so lacking in merit, even on its face, that it should be dismissed so as not to waste the court’s, and the defendant’s, time. So that’s where the proceedings are at the moment, and if the government wins the motion to dismiss, the case is over.
I haven’t seen the government’s submission supporting its motion to dismiss, but you can make out from the RMI’s submission in opposition some of the issues that were raised by the government. And indeed, these and others were anticipated beforehand by observers. US constitutional and federal courts law is by no means my specialty, but I think the biggest hurdles that have always existed for this case are:
1. Sovereign immunity – basically you can’t sue the federal government without either its explicit or implied consent. That’s federal courts 101. Usually you find this consent in a statutory cause of action. But none exists here. I haven’t seen any arguments by the RMI’s legal team that persuasively overcome this hurdle.
2. It looks like the RMI’s legal team are putting a lot of stock in their assertion that the NPT is a self-executing treaty. They obviously haven’t read the US Supreme Court’s 2008 Medellin case, which effectively created a presumption against treaty self-execution in US federal law. As I read Medellin, the NPT doesn’t even come close to the standard that the court will look for in order to find the treaty self-executing. And since there was never any implementing legislation for the NPT in the US, that avenue is foreclosed as well.
The US federal court aspect of the RMI’s cases has always struck me as strange, and the more I learn about it, the more ridiculous it seems. I strongly suspect that the court will grant the government’s motion to dismiss.
And from what I can see of the lawyering of the RMI’s US federal court legal team in this case, I stand by the concern I expressed here previously about the parallel effort in the ICJ.