NINTH CIRCUIT REVIEWS REQUEST FOR DECLARATORY JUDGMENT BY THE REPUBLIC OF THE MARSHALL ISLANDS THAT THE UNITED STATES IS IN BREACH OF ITS TREATY OBLIGATIONS; COURT FINDS DISPUTE NON-JUSTICIABLE AND WITHIN THE REALM OF THE EXECUTIVE, NOT THE JUDICIARY

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Date: October-December 2017
From: International Law Update(Vol. 23, Issue 4)
Publisher: American Bar Association
Document Type: Article
Length: 2,291 words
Lexile Measure: 1400L

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The following case involves an attempt by the Republic of the Marshall Islands ("the Marshall Islands"), a chain of volcanic islands and coral atolls in the Pacific Ocean with approximately 54,000 inhabitants, to force the U.S. to pursue good faith negotiations pursuant to Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (the "Treaty" or the "Non-Proliferation Treaty") (calling 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).

In 2014, the Marshall Islands filed the present action in U.S. district court for a declaratory judgment and injunctive relief, noting the "the grim legacy of the United States nuclear weapons program," including the detonation of sixty-seven nuclear weapons in the Marshall Islands. In the complaint, 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." Further, 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 district court the United States' motion to dismiss. 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. Also, the case raised nonjusticiable political questions.

The U.S. Court of Appeals for the Ninth Circuit notes that while this case involves one state party seeking to enforce its treaty rights in the domestic court of another state party, such dispute is non-justiciable.

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. 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 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...

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Gale Document Number: GALE|A574852007