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October 3, 2017
  Republic of the Marshall Islands v. United States
Headline:
The Ninth Circuit panel concluded that Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was non-self-executing and, therefore, unenforceable by the United States judicial branch.

Areas of Law:
International Law; Civil Procedure

Issues Presented:
Whether Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons was a self-executing treaty, thus requiring the United States to engage in good-faith negotiations under Article VI of the Treaty.

Brief Summary:
The Ninth Circuit affirmed the decision of the district court to dismiss a suit filed by the Republic of the Marshall Islands (Marshall Islands) against the United States claiming that the United States breached Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons by failing to pursue good-faith negotiations. The panel held (1) Article VI of the Treaty is non-self-executing, (2) plaintiff's claims are not redressable because Article VI is not self-executing and, therefore, plaintiff lacks standing under Article III's "case" or "controversy" requirement, and (3) the claims presented inextricable political questions. The Ninth Circuit panel, therefore, held that Article VI was not judicially enforceable in domestic court, and dismissed the claim.

Significance:
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 failed because treaties that are non-self-executing are unenforceable judicially.

Extended Summary:
The Treaty on the Non-Proliferation of Nuclear Weapons (the Treaty) was entered into in 1970 after being signed by President Johnson with consent of the United States Senate with the goal of nuclear disarmament. In 1995, the Marshall Islands, the named plaintiff, acceded to the Treaty. Today over 180 states are parties to the Treaty.

Article VI of the Treaty promoted the nuclear disarmament goal by stating that each party to the Treaty will "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament." In April, 2014, the Marshall Islands sued the United States in federal district court claiming that the United States failed to pursue good-faith negotiations, and therefore breached Article VI of the Treaty. According to the Marshall Islands, the United States has a "grim legacy" of a "nuclear weapons program" and this included the detonation of sixty-seven nuclear weapons in the Marshall Islands that resulted in "horrific and multi-generational consequences." The Marshall Islands sought a declaration stating 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" and a separate declaration that the United States is "in continuing breach" of Article VI's obligation to "pursue negotiations in good-faith on effective measures relating to cessation of the nuclear arms race at an early date and 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."

This case deviated from the typical treaty-enforcement action as it was brought by one state party seeking to enforce its treaty rights in the domestic court of another state party.

The Ninth Circuit panel first addressed whether Article VI was self-executing and, therefore, judicially enforceable in federal court. The panel determined that Article VI was the epitome of a non-self-executing treaty noting that the text of the Treaty does not explicitly request direct judicial enforcement of Article VI, nothing in the text of the Treaty suggests that it was designed "to have immediate effect" in domestic courts, the Treaty calls for the United States to pursue future negotiations on "effective measures" to "end the nuclear arms race at an early date," and most important, "Article VI is addressed to the executive, urging further steps only the executive can take - negotiation with other nations.

The panel further held that the Marshall Islands' claims are not redressable because Article VI is non-self-executing and, therefore, the Marshall Islands lacks standing under Article III that limits the judicial power to resolving "cases" and "controversies" and the separation-of-powers principles underlying that limitation. In other words, plaintiff's asserted injuries are not redressable because Article VI may not be enforced in federal court.

The Ninth Circuit panel also addressed the political question doctrine preliminarily noting that the Supreme Court has recognized the inherently political nature of decisions involving foreign relations. In Baker v. Carr, the Court set out six factors to determine whether a claim raises a political question (so-called "Baker factors.") The panel relied on the first two factors to determine if the claim raised a political question: "[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it."

The Marshall Islands' claims involved "a textually demonstrable constitutional commitment of the issue to a coordinate political department" by stating "when, where, whether, who, and how" the United States would "negotiate with foreign nations to end the nuclear arms race and accomplish nuclear disarmament." The panel ruled that it cannot compel the United States to "call for and convene negotiations for nuclear disarmament in all its aspects."

Noting that Article VI contains "an array of vague terms and a dearth of applicable standards" the panel concluded that there was a "lack of judicially discoverable and manageable standards for resolving" key issues intertwined with the relief sought by the Marshall Islands.

To read the full opinion, please visit:
http://cdn.ca9.uscourts.gov/da...017/07/31/15-15636.pdf

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

Argument:
March 15, 2017

Date of Issued Opinion:
July 31, 2017

Docket Number:
4: 14-cv-01885-JSW

Decided:
Affirmed the decision of the district court.

Case Alert Author:
Kianna Woods

Counsel:
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 Plaintiff-Appellant.

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

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.

Author of Opinion:
Judge McKeown

Circuit:
Ninth

Case Alert Supervisor:
Professor Glenn S. Koppel

    Posted By: Glenn Koppel @ 10/03/2017 04:52 PM     9th Circuit  

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