The Woman Taking On Nine Countries
BY PAKSY PLACKIS-CHENG
The Nuclear Zero lawsuit was filed by the Republic of the Marshall Islands in 2014. The island in the Pacific Ocean is the still dealing with the fallout of the 67 major nuclear tests done in the past by the United States. The lawsuit calls on the nine nuclear nations to adhere to the Nuclear Non-Proliferation Treaty (NPT).
The NPT was signed in 1968 and entered into force in 1970. The United States, Russia, the United Kingdom, France, and China are parties to the NPT. A total of 190 countries have signed the treaty. Israel, India, Pakistan, and North Korea are not parties to the NPT and violate international law. Between these nations, there are 17,000 warheads with an expense of $100 billion spent annually on nuclear forces.
Laurie Ashton is Nuclear Zero’s lead counsel and has been fighting (pro-bono) for the rights of the Marshall Islands and for nuclear disarmament.
What is your role in the Nuclear Zero cases?
In the case brought by the Marshall Islands against the United States, I’m the lead counsel. That is in federal court. In the cases at [the International Court of Justice] The Hague, I’m one of a team of lawyers working for the Marshall Islands.
What are the desired outcomes of these lawsuits?
We filed nine applications in The Hague. The International Court of Justice is a court of consent, so you can only be sued if you have consent on file. It’s called an optional clause declaration. That’s why the cases against the U.K., India, and Pakistan are going forward. The other six cases against the other nations holding nuclear weapons are invitations for them to consent and come to court. To date, they have not accepted those invitations.
The case in the United States has been appealed.
The desired outcome is similar in the cases. We seek declaratory relief that the defendant nations are in breach of the Non-Proliferation Treaty.
We seek injunctive relief requiring them to comply with the treaty, which is to initiate negotiations in compliance with the treaty within one year.
What is, then, the path forward to nuclear zero?
For these lawsuits, it’s a legal path forward. Like many social-justice causes, I’m thinking of women’s rights, civil rights, and most recently marriage equality. The path forward is through the courts and through enforcing legal obligations. In the International Court of Justice cases, we will first have to litigate what’s called preliminary objections by the three respondent states.
They will claim that the court lacks jurisdiction. Those issues will be litigated first, based on the results of those hearings, to what we call the merits phase. That’s where we seek the injunctive and declaratory relief that I mentioned.
With the recent nuclear agreement with Iran, Secretary of State of the U.S., John Kerry must be in full agreement with what you’re doing here.
I would like to think that in his mind he is in full agreement, but that is not the position he’s taking publicly. You bring up the agreement with Iran, the alleged breach by Iran, not allowing the team to come in and evaluate their nuclear facilities. That was actually an alleged breach of the same treaty that we’re bringing our case under. So the resolution of that with the new inspections and the Iran Deal, as everyone calls it, is a resolution of a claim under this exact treaty.
Kerry purports to be against these cases. The official position of the government that he’s part of is that the remedy is diplomacy. They cite an old case from the 1800s that says if diplomacy fails, your remedy is war. The position of the Marshall Islands and of our legal team is that that’s just not the case, that you have a legal remedy in addition.
I think Kerry, in his heart, supports the cases — but he certainly won’t say so.
Tell me about your recent presentation at the United Nations.
The Non-Proliferation Treaty is formally reviewed every five years. The most recent review was between April and May of this year . They have what are called breakout meetings and side meetings, where diplomats and NGO representatives and lawyers meet to discuss some of the hot topics, so to speak.
One of the hot topics that folks wanted to meet on this year was dependency of these cases, what was the status, what were the legal issues? So we led a couple of panel discussions.
How did it go?
It went well; people are very interested. It’s easier for the lawyers to understand the nitty-gritty of the legal claims. But the non-lawyers get it, too.
The Treaty requires you to negotiate nuclear disarmament. Instead of negotiating nuclear disarmament, these countries are spending hundreds of billions. Over the next 30 years, a trillion dollars is projected, to improve the arsenals and make the weapons last longer and be stronger and be more lethal. That is the opposite of negotiating disarmament.
So people get it; they were great breakout sessions at the UN. It was exciting to be there, frankly. On one of the days we were there, it was the day for Secretary of State Kerry to speak. We heard his speech — you can pull it up online, the press covered it everywhere — but I’ll summarize it for you.
His speech was, we, the United States, are prepared to talk about how we can get prepared to talk about how we can get prepared to talk about, eventually, someday being prepared to talk about nuclear disarmament.
That’s not good enough.
Apart from signing the petition, and joining more than five million people calling for nuclear zero, what can people do to support your efforts?
There’s a parallel effort to the cases that’s an advocacy campaign; there’s a consortium of about 90 NGOs that are working and pushing for nuclear disarmament. Nuclear zero is what they call it. And so that’s really separate from the suit, but there’s a website for that, nuclearzero.org.
There’s all kinds of things people can do: talk about it, speak to your elected representatives, and that’s worldwide. In Japan, they gathered five million signatures. You can write letters to your editor, tell your friends, and share this blog post with your friends. Put the word out, because ultimately it will be the elected officials that need to comply with the treaty obligation.
What is the overall perception of the cases?
There are those that know what I’ll call the details of the case that are very supportive. The legal minds are very supportive for the basic treaty breach and the basic legal remedy.
And then there’s a misperception, people who think that the cases are driven by NGOs or are to support an advocacy campaign. That’s not the case at all. The cases are legally grounded, strong claims based on international law and treaty law. And in the United States based on the U.S. Constitution and federal law. We’re working to clear up that misperception. The advocacy campaign has a great reputation. The NGOs working on that are doing a good job.
There is the women’s Nobel Laureates organization, Greenpeace, Pox Christy International, which is a Catholic organization, the International Physicians for the Prevention of Nuclear War. I like to say, “Okay, on what one issue do you have the lawyers, the doctors, the engineers, the environmentalists, the scientists — on one issue you have them agreeing?” And the answer is nuclear zero.
It seems to me so cut and clear, though. You signed a Treaty — you uphold the Treaty.
Right, right. And if you don’t, you have to go to court. You can’t just say, we’re not going to do it. I have a friend who’s a retired judge. He’s a very smart, long-time friend, and he says, “What’s the United States’ response to this claim?” And these are his words…“is it just treaty-schmeaty, we don’t have to do that?”
I said, “Basically.” Basically it’s, if we breach the Treaty, all you can do is talk to us. And if we don’t want to listen, that’s where you land. And that’s unacceptable.
Laurie, what I really wanted to know with all these questions was how did you get so ballsy?
[Laughs.] I don’t know. I don’t consider myself so ballsy is the answer.
Look at the name of the court, right? The International Court of Justice. And what’s happening now is not right. There is a study by a Professor Emeritus out of Stanford [University] that says that a child born today has a one in six chance of dying from a nuclear weapon, and that’s unacceptable.
I’m a lawyer, I’m a mother, and I’m a grandmother, and that’s unacceptable. So if there’s some small contribution I can make, then I want to make it.
How did you get so ballsy? [Laughs.]
Tell me something else you did that was ballsy.
I’ll tell you a case that I had early on. I had an environmental contamination case in Utah. There were many cases of Non-Hodgkin’s Lymphoma near an explosives plant. The explosives plant had been owned by very large international defendants who were very well funded.
At the time I was working for a small firm. And we were far less well funded. And we brought the cases against these firms in Utah. And we drew a conservative judge, and people said, “What are you doing in front of this conservative judge with these toxic tort cases?” And I said, “We’re suing those companies whose explosives are in the groundwater. And these people are sick, and their property is worth far less, and the people who allowed [the explosives] to be put into the groundwater are responsible.” That was before the Erin Brockovich cases, which made these kinds of suits more popular.
It was hard, people were sick, but it was the right case. Sometimes people ask me if you should bring cases that are hard or new or cutting-edge or what are you doing? And I say, “Okay, let’s think back a little.”
We had Plessy v. Ferguson … and the railroad company said, “… they’re separate, but they’re equal.” And the Supreme Court of the United States said, “Yeah, that’s true. That’s good enough. That’s constitutional.” And then decades later, you have Brown v. Board of Education, which is essentially the same argument, separating children in schools based on their race. And the Supreme Court says, “… separate but equal: That’s not okay, and that’s unconstitutional.”
The saying is that the arc of the law bends towards justice, which means there are some cases along the way that aren’t always won that should be won. But eventually, if you keep fighting, you have the law on your side, and the right thing will happen. I like to think it’s right.