Republic of the Marshall Islands, a non-nuclear-weapon State party to the Treaty on the Non Proliferation of Nuclear Weapons, Plaintiff-Appellant,
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.
and Submitted March 15, 2017 San Francisco, California
from the United States District Court for the Northern
District of California No. 4:14-cv-01885-JSW, Jeffrey S.
White, District Judge, Presiding
B. Ashton (argued) and Alison Chase, Keller Rohrback LLP,
Phoenix, Arizona; Juli E. Farris and Lynn Lincoln Sarko,
Keller Rohrback LLP, Seattle, Washington; for
Soni (argued) and Douglas N. Letter, Appellate Staff, Civil
Division, United States Department of Justice, Washington,
D.C., for Defendants-Appellees.
Yundt, Livermore, California, as and for Amicus Curiae
Tri-Valley Communities Against a Radioactive Environment.
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.
Benshoof, New York, New York, as and for Amicus Curiae Global
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
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.
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.
Islands / Treaties
panel affirmed the district court's dismissal of a suit
brought by the Republic of the Marshall Islands seeking a
declaration that the United States was in breach of its
treaty obligations under Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons, and asking the court to
order that the United States engage in good-faith
panel held that Article VI was non-self-executing. The panel
further held that because non-self-executing treaty
provisions were not judicially enforceable, claims seeking to
enforce them were nonjusticiable.
panel held that the Marshall Islands' asserted injuries
were not redressable because Article VI could not be enforced
in federal court. The panel also found that the Marshall
Islands' claims presented inextricable political
questions that were nonjusticiable and must be dismissed.
McKEOWN, Circuit Judge:
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.
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.
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.
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.
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."
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
Count 1, the Marshall Islands requested a declaration that
Article VI imposes ...