Bid to Force US Out of Nuclear Arms Race Dies at 9th Circuit

A self-executing treaty is judicially enforceable upon ratification, while a non-self-executing one usually requires Congress to pass implementing legislation, according to the panel's 26-page opinion.

"Not all treaties are created equal in terms of enforceability," McKeown wrote, concluding that Article VI does not direct domestic courts to enforce it, as required under the Supreme Court’s 2008 decision Medellín v. Texas.

McKeown explained that Article VI instead addresses the executive branch, "urging further steps only the executive can take – negotiation with other nations." It also addresses the Senate, "because it calls for 'a treaty on general and complete disarmament,' which would, under the Constitution, require both the president’s signature and the Senate’s consent," she wrote.

"A provision cannot be judicially enforced if doing so would compel the courts to assume a role constitutionally assigned to the executive or the Legislature," McKeown wrote. "There is perhaps nothing more prototypically political than the negotiation of a multilateral international instrument. Deciding when, where, and whether to negotiate with foreign nations is within the exclusive authority of the executive."

She added: "Granting the Marshall Islands' requested relief would essentially appoint the district court as a special master overseeing the United States' nuclear treaty negotiations. To construe Article VI as self-executing and approve the Marshall Islands' claims would thus violate core separation-of-powers principles."

Moreover, McKeown found, Article VI does not suggest that presidents Lyndon Johnson and Richard Nixon or the Senate intended the provision to be enforceable domestically. Although the treaty notes the "intention" of the parties to disarm, it is "silent as to any enforcement mechanism" if a country fails to comply with its obligations, the judge said.

"That silence is significant in the context of this treaty and this lawsuit, not least because, in the absence of a specific treaty directive, having states open their domestic courts to other treaty parties would be extraordinary," McKeown wrote.

And, she added, Congress passed a law after the treaty was ratified conferring responsibility for the international negotiation of arms control and disarmament to the U.S. secretary of state.

Marshall Islands attorney Laurie Ashton of Keller Rohrback in Phoenix expressed disappointment with the decision Monday.

"With respect, the court's decision purports to say that it is without authority to determine the nature and scope of the Article VI obligation, but then the court turns around and does just that, holding that Article VI, in its 'wishful tenor reflects the reality of the treaty itself: the state parties could agree only that they hoped to usher in a nuclear-free future,' Ashton wrote in an email.

"But if hope were all that were offered in Article VI, the NPT would have been ... at risk of failure for lack of consideration. In other words, in exchange for the non-nuclear weapon states' promise to not acquire or transfer nuclear weapons, the nuclear weapon states offered only "hope" under today's decision," she continued. "But that's not a contract. The obligations of non-nuclear weapon states to not advance nuclear weapons programs are in the news at least weekly and often daily. It is not difficult for one to imagine the effects of the United States position, as held by the Ninth Circuit, that its Article VI obligation is hortatory, and reflects only its 'hope.'"

The Justice Department declined to comment on the decision.

The Marshall Islands also sued the United States, along with the United Kingdom, Russia, France, China, Israel, India, Pakistan and North Korea, at the International Court of Justice in the Netherlands. That court ruled last October that it did not have jurisdiction to hear the merits of the cases against the United Kingdom, India and Pakistan.

The remaining nations ignored the cases against them because they do not recognize the court's compulsory jurisdiction.

U.S. Circuit Judge Jay Bybee and U.S. District Judge Susan Oki Mollway, sitting by designation from the District of Hawaii, joined McKeown on the panel.

A representative for the Marshall Islands’ department of state could not be reached for comment.

Justice Department attorney Sushma Soni represented the government.