Republic of the Marshall Islands v. United States, 15-15636

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation865 F.3d 1187
Docket NumberNo. 15-15636,15-15636
Parties REPUBLIC OF the MARSHALL ISLANDS, a non-nuclear-weapon State party to the Treaty on the Non Proliferation of Nuclear Weapons, Plaintiff–Appellant, v. UNITED STATES of America; Donald J. Trump, The President of the United States of America; Department of Defense; James Mattis, Secretary, Department of Defense; Department of Energy; Rick Perry, Secretary, Department of Energy; National Nuclear Security Administration, Defendants–Appellees.
Decision Date31 July 2017

Laurie B. Ashton (argued) and Alison Chase, Keller Rohrback LLP, Phoenix, Arizona; Juli E. Farris and

Lynn Lincoln Sarko, Keller Rohrback LLP, Seattle, Washington; for PlaintiffAppellant.

Sushma Soni (argued) and Douglas N. Letter, Appellate Staff, Civil Division, United States Department of Justice, Washington, D.C., for DefendantsAppellees.

Scott Yundt, Livermore, California, as and for Amicus Curiae Tri–Valley Communities Against a Radioactive Environment.

Henry M. Willis, Schwartz Steinsapir Dohrmann & Sommers LLP, Los Angeles, California; Margot Nikitas, Staff Attorney; Joseph Cohen, General Counsel; United Electrical, Radio and Machine Workers of America, Pittsburgh, Pennsylvania; for Amici Curiae United Electrical, Radio and Machine Workers of America (UE), International Commission for Labor Rights, and Labor and Employment Committee of the National Lawyers Guild.

Janet Benshoof, New York, New York, as and for Amicus Curiae Global Justice Center.

Randy Baker, Seattle, Washington; Anabel Dwyer, Elizabeth Shafer, and John Burroughs, Lawyers Committee on Nuclear Policy, New York, New York, for Amicus Curiae Lawyers Committee on Nuclear Policy.

Daniel U. Smith, Smith & McGinty, San Francisco, California, for Amici Curiae Physicians for Social Responsibility, International Physicians for the Prevention of Nuclear War, and Pax Christi International.

Andrea R. St. Julian, San Diego, California, for Amici Curiae Hans M. Kristensen, Robert Alvarez, Dr. James E. Doyle, and Nuclear Watch New Mexico.

Before: M. Margaret McKeown and Jay S. Bybee, Circuit Judges, and Susan Oki Mollway,* District Judge.

OPINION

McKEOWN, Circuit Judge:

Not all treaties are created equal in terms of enforceability. Although the Supremacy Clause guarantees that "all Treaties ... shall be the supreme Law of the Land," U.S. Const. art. VI, cl. 2, paradoxically not every treaty provision is enforceable in our domestic courts. Article VI of the Treaty on the Non–Proliferation of Nuclear Weapons (the "Treaty" or the "Non–Proliferation Treaty") is one such provision: it calls on each party to the Treaty "to pursue negotiations in good faith on effective measures" to end the nuclear arms race and accomplish nuclear disarmament.1

Armed with Article VI, one of the treaty parties, the Republic of the Marshall Islands, filed suit, asking the federal court to declare the United States in breach of its treaty obligations and to order the United States to engage in good-faith negotiations. These claims are nonjusticiable—Article VI is not directly enforceable in federal court, the Marshall Islands' asserted injuries are not redressable, and the claims raise nonjusticiable political questions.

At bottom, the suit is doomed because diplomatic negotiations among parties to this Treaty fall quintessentially within the realm of the executive, not the judiciary. Parleying a halt to the nuclear arms race and achieving nuclear disarmament involve decision-making delegated to the political branches. We affirm the district court's dismissal of the complaint. Asking the federal court to order the United States to negotiate in "good faith" on "effective measures" for nuclear disarmament puts the judiciary in the role of nanny to the executive. Under our system of separation of powers, the federal court cannot give the Marshall Islands the judicial relief it seeks.

BACKGROUND

The Non–Proliferation Treaty entered into force in 1970. After President Johnson signed and the Senate gave its consent, President Nixon ratified the Treaty for the United States. The Marshall Islands acceded to the Treaty in 1995. Over 180 states are now parties.

To promote the Treaty's goal of nuclear disarmament, Article VI provides that "[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control." Although the Treaty includes no mechanism to address alleged breaches, the United States acknowledges that the Treaty "is a legally binding instrument under international law" and that breach "may give rise to international legal remedies."

In April 2014, the Marshall Islands sued the United States in federal district court, seeking declaratory and injunctive relief and claiming that the United States breached Article VI by failing to pursue good-faith negotiations. The genesis for this action is what the Marshall Islands describes as "the grim legacy of the United States nuclear weapons program," including the detonation of sixty-seven nuclear weapons in the Marshall Islands that resulted in "horrific and multi-generational consequences from nuclear proliferation."

In Count 1, the Marshall Islands requested a declaration that Article VI imposes obligations on the United States to:

(1) "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament"; and
(2) "bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective control."

In Count 2, the Marshall Islands requested a declaration that the United States is "in continuing breach" of its Article VI obligation to "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date" and "to nuclear disarmament."

The Marshall Islands sought to force the United States—"within one year" following entry of the requested declaratory judgment—to "take all steps necessary" to comply with its Article VI obligations, "including by calling for and convening negotiations for nuclear disarmament in all its aspects."

The district court granted the United States' motion to dismiss on two grounds. The court concluded that the Marshall Islands lacked standing because the court had no power to bind other state parties not before the court and the asserted injury "cannot be redressed by compelling the specific performance by only one nation to the Treaty." Republic of the Marshall Islands v. United States , 79 F.Supp.3d 1068, 1072 (N.D. Cal. 2015). The court also found that the case raised nonjusticiable political questions. Id. at 1073–74. Although the United States also argued that Article VI is not self-executing and therefore not directly enforceable in domestic courts, the district court said that this issue was "irrelevant to the enforcement by a state- party that is a signatory to the Treaty." Id. at 1074 n.2.

ANALYSIS

This is not your average treaty case. Unlike the typical treaty-enforcement actions brought by private individuals, this case involves one state party seeking to enforce its treaty rights in the domestic court of another state party. This unorthodox effort fails because the claims are nonjusticiable.

Whether examined under the rubric of treaty self-execution, the redressability prong of standing, or the political question doctrine, the analysis stems from the same separation-of-powers principle—enforcement of this treaty provision is not committed to the judicial branch. Although these are distinct doctrines for addressing treaty enforcement, there is significant overlap. For example, considerations applicable to self-execution, such as whether the judiciary is the appropriate branch for direct enforcement, also play out in the standing and political question analysis. See Ann Woolhandler, Treaties, Self–Execution, and the Public Law Litigation Model , 42 Va. J. Int'l L. 757, 761 (2002) (noting "the problems of distinguishing among the doctrines of non-self-execution, standing, and political question in the treaty context" but concluding that all three "address some aspect of whether there exists either a judicially cognizable injury on the part of the plaintiff or a judicially cognizable duty on the part of the defendant"). As the Supreme Court explained long ago, a treaty will often "depend[ ] for the enforcement of its provisions on the interest and the honor of governments which are parties to it." Head Money Cases , 112 U.S. 580, 598, 5 S.Ct. 247, 28 L.Ed. 798 (1884). If a state party breaches a non-self-executing treaty provision, "its infraction becomes the subject of international negotiations and reclamations," and "the judicial courts have nothing to do and can give no redress." Id.

I. Self–Executing Treaties
A. The Doctrine of Self–Execution

Much ink has been spilled on the question of treaty self-execution,2 which has been called "one of the most confounding in treaty law." United States v. Postal , 589 F.2d 862, 876 (5th Cir. 1979). In simple terms, a self-executing treaty is one that is judicially enforceable upon ratification. In contrast, a non-self-executing treaty requires congressional action via implementing legislation or, in some cases, is addressed to the executive branch.

Nearly a decade ago, the Supreme Court finally brought some clarity to this issue in Medellín v. Texas , noting that the "Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law" enforceable in domestic courts. 552 U.S. 491, 504, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) ; see also Bond v. United States...

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