Emory International Law Review

Promise Despite Overreach in Marshall Islands v. United States
Katherine Maddox Davis Law Clerk, U.S. District Court for the Eastern District of Virginia. J.D., Emory University School of Law; M.Sc., University of Oxford; B.A., Auburn University. The author thanks professors Johan van der Vyver and Jonathan Nash for their helpful feedback, and the EILR Executive Board for their able editing. This Essay continues commentary begun in Hurting More than Helping: How the Marshall Islands’ Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court, 25 Minn. J. Int’l L. 79 (2016).

Abstract

When it comes to accountability for treaty obligations, the International Court of Justice has not proved as impactful as its founders hoped. Given that shortcoming, domestic courts’ role in determining treaty obligations is critical. This Essay contends that treaty parties may have hope in federal court for declaratory relief regarding American treaty obligations. The inspiration comes from Marshall Islands v. United States, currently before the Ninth Circuit. The Marshall Islands sued the United States for breach of the Nuclear Nonproliferation Treaty Article VI, requesting declaratory and injunctive relief. This Essay deconstructs the Marshall Islands' strategy, pronounces its impending demise, and reimagines how the strategy could succeed if limited to declaratory relief. When a treaty party sufficiently pleads injury-in-fact in a proper venue, the Essay posits that redress, political question, and non-self-executing treaty status may not bar a declaratory judgment.

Introduction

While it is novel for a foreign sovereign to consent to the jurisdiction of U.S. federal courts over a treaty dispute, it is in no way novel for the U.S. federal courts to interpret a treaty and/or to find a treaty violation. Indeed, in the first fifty years of U.S. constitutional history, between 1789 and 1838, the Supreme Court decided nineteen cases in which the U.S. government was a party, at least one party raised a claim or defense on the basis of a treaty, and the Court decided the merits of that claim or defense.

–Marshall Islands Complaint for Breach of the Nuclear Non-Proliferation Treaty 1Complaint at 1–2, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 3:14-CV-01885-JSW).

The United States (U.S.) is subject to robust criticism for exceptionalism in public international law. 2Katherine M. Davis, I, Too, Sing America: Customary International Law for American State and Federal Courts’ Post-Kiobel Jurisprudence, Guided by Australian and Indian Experiences, 29 Emory Int’l L. Rev. 119, 123 (2014) [hereinafter Davis, I, Too, Sing America]. By contrast, matters of private international law seem to be ushered into federal courts with more grace. See, e.g., BG Group plc v. Republic of Argentina, 134 S. Ct. 1198 (2014). When it comes to accountability in treaty obligations, whether for the United States or other major powers, the International Court of Justice (ICJ) has not proven as impactful as its founders hoped. 3Katherine Maddox Davis, Hurting More than Helping: How the Marshall Islands’ Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court, 25 Minn. J. Int’l L. 79, 98–100 (2016) [hereinafter Davis, Hurting More than Helping]; see also A. Mark Weisburd, Failings of the International Court of Justice 3 (2015) (“[A] contradiction between the significance for international law accorded to the I.C.J.’s decisions by tribunals and scholars and the formal authority accorded to the Court in its Statute.”); infra Part I.B. Given that shortcoming, domestic courts’ role in determining treaty obligations is all the more critical. 4See Davis, Hurting More than Helping, supra note 3, at 88; Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev. 469, 469 (2005) (“[D]omestic enforcement mechanisms are a crucial force pushing countries to comply with international treaties . . . .”). There is also a growing awareness of the broader interplay between federal courts and the international community. See, e.g., Curtis A. Bradley, International Law in the U.S. Legal System, at xi (2d ed. 2015); Stephen Breyer, The Court and the World 197 (2015).

This Essay contends that treaty parties may have hope in federal court for declaratory relief regarding American treaty obligations. The inspiration for this Essay is taken from a case currently before the Ninth Circuit, Marshall Islands v. United States. 5See Plaintiff’s Notice of Appeal at 1–2, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 14-CV-01885-JSW). The Marshall Islands filed a complaint against the United States for breach of the Nuclear Non-Proliferation Treaty (NPT) Article VI, requesting both declaratory and injunctive relief. 6See Complaint, supra note 1, at 27; infra Part II. As quoted above, the Marshall Islands points out that this strategy is far from novel in American jurisprudence and only need be dusted from a few centuries’ dormancy. 7See Complaint, supra note 1, at 1–2; see also Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int’l L. 51, 88–89 (2012) (citing Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984)). This Essay deconstructs Marshall Islands, pronounces its impending demise, and reimagines how the legal strategy could succeed if limited to declaratory relief. Where a treaty party can sufficiently plead injury in fact, this Essay posits that redress, political question, and non-self-executing treaty status may not bar a declaratory judgment.

In April 2014, the Republic of the Marshall Islands sued each of the nine nuclear weapons states at the ICJ for failure to comply with Article VI of the NPT. 8James Conca, The Nuclear Weapons StatesWho Has Them and How Many, Forbes (Sept. 25, 2014, 10:54 AM), http://www.forbes.com/sites/jamesconca/2014/09/25/the-nuclear-weapons-states-who-has-them-and-how-many/. The nuclear states are the United States, the United Kingdom, France, China, Russia, India, Pakistan, Israel, and North Korea. Id. Article VI requires the pursuit of good faith negotiations toward proliferation cessation and further negotiations toward disarmament. 9See Treaty on the Non-Proliferation of Nuclear Weapons art. VI, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161. The Marshall Islands brought an additional suit against the United States in the U.S. District Court for the Northern District of California. 10See Complaint, supra note 1, at 1. In its Complaint, the Marshall Islands named the United States, President Barack Obama, the Department of Defense, Secretary of Defense Charles Hagel, the Department of Energy, Secretary of Energy Ernest Moniz, and the National Nuclear Security Administration. See id. The U.S. Department of Justice Civil Division, Federal Programs Section and Appellate Section filed on behalf of the collective government defendants before the district and appellate courts, respectively. This Essay refers to the defendants collectively as “the Government” and “the United States.” See Press Release, Int’l Court of Justice, The Republic of the Marshall Islands Files Applications Against Nine States for Their Alleged Failure to Fulfill Their Obligations with Respect to the Cessation of the Nuclear Arms Race at an Early Date and to Nuclear Disarmament, Press Release No. 2014/18 (Apr. 25, 2014), http://www.icj-cij.org/presscom/files/0/18300.pdf [hereinafter Press Release No. 2014/18]. See generally Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015); Brief of Appellee, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015 Oct. 28, 2015) (No. 4:14-CV-01885-JSW). The case was dismissed and appealed. 11Republic of the Marshall Islands, 79 F. Supp. 3d 1068; Plaintiff’s Notice of Appeal at 1–2, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015 Apr. 2, 2015) (No. 4:14-CV-01885-JSW).

The Marshall Islands’ ICJ actions garnered little attention; interested parties realize that a decision is likely years away. 12Indeed, the ICJ gave India a year to respond, and the Marshall Islands six months to respond on whether the ICJ’s jurisdiction in the matter is proper. See Davis, Hurting More than Helping, supra note 3, at 85. Meager attention is equally attributable to the suits’ potential. Only three nuclear weapons states submit to the compulsory jurisdiction of the ICJ. 13See Press Release No. 2014/18, supra note 10. Of those three, only one is party to the NPT. 14See id. The legal grounds against the other two countries are based on an attenuated argument of customary international law that is unlikely to gain traction. 15See Davis, Hurting More than Helping, supra note 3, at 83. While the Marshall Islands’ complaint in federal court received sparse attention, the American case merits exploration.

Regardless of the Marshall Islands’ near-certain failure, the broader legal strategy has the potential to reinvigorate a trend of treaty parties seeking declaratory judgments from federal courts. 16See Complaint, supra note 1, at 1–2. Such judgments could mark a meaningful step toward American accountability by defining U.S. treaty obligations and determining compliance. Nations seeking to press for American treaty compliance can extract a roadmap of valuable lessons from Marshall Islands v. United States.

This Essay proceeds in four parts. Part I provides a background to the NPT and dispenses of the Marshall Islands’ cases before the ICJ, explaining their futility and the resulting value of efforts to seek U.S. treaty compliance through American courts. Part II explores the Marshall Islands’ suit in American federal court, highlighting redress, political question doctrine, and non-self-executing treaty status as sticking points barring declaratory relief. Part III posits that when only declaratory relief is sought, those three sticking points are not clear bars to other sovereigns seeking to have a U.S. court interpret American treaty obligations. Concluding remarks reiterate the need for good faith efforts to quell American exceptionalism in public international law. This Essay will not address the value of nuclear weapons arsenals themselves, though acknowledging the great weight of that matter—particularly as the United States updates its nuclear arsenal. 17See William J. Broad & David E. Sanger, As U.S. Modernizes Nuclear Weapons, ‘Smaller’ Leaves Some Uneasy, N.Y. Times, Jan. 12, 2016, at A1. Likewise, venue will not be addressed: the matter will generally be as simple as filing in the U.S. District Court for the District of Columbia. 18See infra Part III. While the Marshall Islands are unlikely to see victory in the case at bar, the litigation stands to crack open a long-buried method of American treaty accountability.

I. The ICJ and NPT Were Born of Foreign Relations Compromises That Left Them Weak to Enforce and Be Enforced, Raising the Value of Domestic Proceedings

In 1968, some twenty-three years after the world’s first nuclear weapons were tested in New Mexico, the five then-existing nuclear weapons states and a bounty of non-weapons states recognized the NPT. 19Rebecca Johnson, Unfinished Business: The Negotiation of the CTBT and the End of Nuclear Testing 1 (2009). As of 1968, the five nuclear weapons states were China, France, Russia, the United Kingdom, and the United States. Id. at 2. The treaty came into force in 1970. 20Id. The NPT reflected a worldwide agreement to cease building new nuclear weaponry and begin exploring avenues toward creating a new treaty for strict disarmament. 21Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI (“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith . . . on a treaty on general and complete disarmament under strict and effective international control.”). At the time of the NPT, five victors of World War II had tested and possessed nuclear weapons. 22See id.; Nobuyasu Abe, The Current Problems of the NPT: How to Strengthen the Non-Proliferation Regime, in The Nuclear Nonproliferation Treaty and India 38 (Rajiv Nayan ed., 2012). Over time, India, Israel, Pakistan, and the Democratic People’s Republic of Korea developed and tested nuclear weapons, though the NPT made no allowances for other nations to be officially deemed nuclear weapons states. 23Conca, supra note 8. Because the NPT restricts the title of “nuclear weapons state” to those states who tested weapons prior to January 1, 1967, none of the four latecomers were able to join the NPT as weapons states. Most have chosen not to join as non-weapons states. Abe, supra note 22, at 38. Notably, India pushed firmly against the delineation between nuclear weapons haves and have nots, now holding a peculiar space as an American-embraced nuclear state not recognized by the NPT. See Kate Sullivan, S. Rajaratnam Sch. of Int’l Studies, Policy Report: Is India a Responsible Nuclear Power? 1 (2014), http://oxford.academia.edu/KateSullivan.

As the NPT drafters knew, one does not simply end an arms race. The long-suffering language of Article VI called for the parties to “undertake[] to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date.” 24Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art VI. Further complicating matters not fully appreciated at the time of the NPT’s drafting, disarming nuclear weapons can be more expensive and time-intensive than developing them. 25Walter Pincus, The Explosive Cost of Disposing of Nuclear Weapons, Wash. Post (July 3, 2013), http://www.washingtonpost.com/world/national-security/the-explosive-cost-of-disposing-of-nuclear-weapons/2013/07/03/64f896e0-e287-11e2-80eb-3145e2994a55_story.html. In current value, four atomic bombs developed by the World War II Manhattan Project cost $24.1 billion to develop and six years to build. Those bombs were “the Trinity plutonium implosion device tested in the New Mexico desert; the Little Boy uranium bomb dropped on Hiroshima; the Fat Man plutonium bomb that hit Nagasaki, and an unused uranium bomb.” Id. By contrast, the U.S. government’s proposed allocation for blending the leftover 37.5 tons of plutonium, to render it unusable in further nuclear weaponry, is $24.2 billion. Id. The blending process is estimated to take more than two decades. Id. Given the sheer overwhelming cost of nuclear disarmament, the demands of Article VI are rightfully tempered. 26See Eric A. Posner, The Twilight of Human Rights Law 86 (2014) (regarding treaties generally, “the problem is not so much that states violate treaty terms but that the treaties do not create any meaningful obligations”). Even so, most nuclear weapons states may well argue that they are in compliance with the spirit and letter of Article VI. 27In a realistic (if cynical) perspective, “when legal rules are vague, one can easily argue that one complied with them even when one’s conduct does not seem to advance the underlying purpose of the rules . . . .” Id.

A. Worldwide Compliance with the Broad Language of NPT Article VI is Arguable, and the Marshall Islands Hardly Made Waves at NPT Meetings in 2014 and 2015

The Marshall Islands contends that Article VI has received insufficient attention since the NPT came into force. 28See generally Complaint, supra note 1. To whatever degree discussing the matter is “pursuing negotiations,” compliance by most NPT parties is arguable. 29Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI. Since 1975, in accordance with the NPT provisions, NPT Review Conferences are held every five years to assess compliance and look toward potential future action. 30For a record of past Review Conferences and Preparatory committees, see NPT Review Conferences and Preparatory Committees, www.un.org/disarmament/WMD/Nuclear/NPT_Review_Conferences.shtml (last visited Mar. 13, 2016). Three Preparatory Committee meetings are held between conferences. 31See id. The most recent Preparatory Committee meeting occurred in New York City from April 28 through May 9, 2014, one week after the Marshall Islands filed its suits. 32Id. While some opined that the timing of the lawsuit was a possible attempt to “put the question of the legality of nuclear arsenals on the agenda at the Preparatory Committee meetings,” 33Avner Cohen & Lily Vaccaro, The Import of the Marshall Islands Nuclear Lawsuit, Bull. Atomic Scientists (May 6, 2014, 11:42 AM), http://thebulletin.org/import-marshall-islands-nuclear-lawsuit7143. and a blog post by civil society leaders noted that the Marshall Islands Prime Minister received an “unprecedented outburst of resounding applause” at the Preparatory Committee plenary, the records of the 2014 meetings contain no mention of the suits. 34Open Letter in Support of the Marshall Islands’ Nuclear Zero Lawsuits, Nuclear Age Peace Found. (Nov. 4, 2014), www.wagingpeace.org/rmi-open-letter/; Cohen & Vaccaro, supra note 33 (“While a number of nongovernmental organizations have been vocal about the lawsuit, especially at NPT Preparatory Committee side events, the delegations participating in the conference have remained all but silent on the subject.”); see also Preparatory Comm. for the 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Summary Record of the 3rd Meeting, UN Doc. NPT/CONF.2015/PC.111/Sr.3 (Apr. 29, 2014) (not mentioning the Marshall Islands at all, let alone the Marshall Islands participating in debate); Preparatory Comm. for the 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Recommendations by the Chair to the 2015 NPT Review Conference, UN Doc NPT/CONF.2015/PC.111/WP.46 (May 8, 2014) (not mentioning the Marshall Islands). Curiously, no national report appears to have been submitted by the Marshall Islands. 35While plenty of nations filed reports that are now available on the U.N. website, no such report is available from the Marshall Islands. For a list of the current reports, see 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations www.un.org/disarmament/WMD/Nuclear/NPT2015/PrepCom2014/documents.shtml (last visited Feb. 16, 2016) [hereinafter 2015 Review Conference]. The 2015 Review Conference was contentious; leaders left without agreeing to so much as a final culminating document. 362015 Review Conference, supra note 35 (“At the 2015 NPT Review Conference, States parties examined the implementation of the Treaty’s provisions since 2010. Despite intensive consultations, the Conference was not able to reach agreement on the substantive part of the draft Final Document.”).

Whether correlated to the Review Conferences, or actualized in a spirit of compliance with the NPT, the total quantity of nuclear weapons possessed by the nine nuclear weapons states is ninety percent lower today than it was during the Cold War. 37Conca, supra note 8 (“Presently, there are nine nuclear weapons states with about 10,000 weapons, down dramatically from the 100,000 at the height of the Cold War: Russia: 5,000; U.S.: 4,400; France: 290; China: 240; U.K.: 195; Israel: 80; Pakistan: 200; India: 150; DPRK: ~ 6.”). This reality detracts from the Marshall Islands’ contention that Article VI compliance is inadequate. 38A further case for American compliance with NPT Article VI—prior to the Clinton administration, the NPT was periodically renewed at each Review Conference. See Miles A. Pomper, Previewing the 2010 Nuclear Non-Proliferation Treaty Review Conference, in The Nuclear Non-Proliferation Treaty and India 51–52 (Rajiv Nayan ed., 2012). The NPT was renewed indefinitely as a result of the Clinton administration’s leadership. Id.

B. The Marshall Islands’ ICJ Proceedings are Futile at Best, and May Damage the Court’s Legitimacy.

When it comes to encouraging further American implementation of the NPT, the value of the proceedings in American courts is enhanced by the low likelihood of any productivity before the ICJ. 39See Davis, Hurting More than Helping, supra note 3, at 88. Because the United States does not submit to the compulsory jurisdiction of the ICJ, the filing against America is essentially dead on arrival. 40See Press Release No. 2014/18, supra note 10.In accordance with Article 38, paragraph 5, of the Rules of Court, the Applications of the Republic of the Marshall Islands have been transmitted to the six Governments concerned [China, the Democratic People’s Republic of Korea, France, Israel, the Russian Federation and the United States]. Unless and until consent is given to the Court’s jurisdiction, there is no case to be entered in the General List.Id.

Historically, seeking to hold the United States accountable before the ICJ for its failure to implement international law has been a game of whack-a-mole. 41See Davis, Hurting More than Helping, supra note 3, at 106–07. When the ICJ ruled against the United States in Nicaragua v. United States in 1986, the United States withdrew its submission to the ICJ’s compulsory jurisdiction. 42See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 292 (June 27); Johan D. van der Vyver, Implementation of International Law in the United States 133 –34 (2010). And after the ICJ ruled against the United States in Avena and Other Mexican Nationals in 2004, the United States withdrew from the Vienna Convention’s Optional Protocol submitting to ICJ jurisdiction for consular disputes. 43See Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 324, 596 U.N.T.S. 487; Avena and Other Mexican Nationals (Mexico v. U.S.), Judgment, 2004 I.C.J. Rep. 128, ¶ 153 (Mar. 31); Letter from Condoleezza Rice, U.S. Secretary of State, to Kofi Annan, U.N. Secretary General (Mar. 7, 2005), http://www.state.gov/documents/organization/87288.pdf. Many consider this posture itself as an American failure to implement international law. 44See van der Vyver, supra note 42, at 129–30. Whatever company is worth, the United States has some.

Of the nine nuclear weapons states, only the United Kingdom, India, and Pakistan still submit to the ICJ’s compulsory jurisdiction. 45See Press Release No. 2014/18, supra note 10. France withdrew its submission before the ICJ had a chance to rule in New Zealand v. France, a decade prior to the withdrawal of the United States. 46The French Minister of Foreign Affairs submitted a letter to the United Nations Secretary-General on January 10, 1974, withdrawing French acceptance of the ICJ’s compulsory jurisdiction. See Nuclear Tests (N.Z. v. Fr.), Memorial of France, at 2 (Dec. 22, 1974), http://www.amun.org/final/03/ICJ_France_Memorial.pdf. China withdrew as well, and Russia never submitted to begin with. 47See Texts Governing the Jurisdiction of the Court, 1946–1947 I.C.J. Y.B. No. 1, at 218 n.1 (noting that China submitted to the ICJ’s jurisdiction for a period of five years but did not renew at the end of the period); Statute of the International Court of Justice: A Commentary 676 (Andreas Zimmerman et al. eds., 2d ed. 2012) (noting that Russia never submitted to the compulsory jurisdiction of the ICJ and noting incorrectly that China never accepted the ICJ’s jurisdiction); see also Davis, Hurting More than Helping, supra note 3, at 104 (detailing China’s acceptance and withdrawal of the Optional Clause). Neither North Korea nor Israel currently submits. 48See Declarations Recognizing the Jurisdiction of the Court as Compulsory, Int’l Ct. Just., http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3 (last visited Jan. 25, 2016) (not listing North Korea and Israel as countries recognizing the ICJ’s compulsory jurisdiction).

The United Kingdom is currently the only permanent member of the U.N. Security Council to submit to the ICJ’s compulsory jurisdiction. 49Stanimir A. Alexandrov, The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?, 5 Chinese J. Int’l L. 29, 31 (2006). The United Kingdom may withdraw its submission to the ICJ’s compulsory jurisdiction if treated harshly by the court in the Marshall Islands’ case, as may India. 50See Davis, Hurting More than Helping, supra note 3, at 115. Per the Marshall Islands’ other cases, even a positive ICJ ruling against the only NPT party submitting to the ICJ’s compulsory jurisdiction would likely not be enforced and may damage the ICJ’s legitimacy if it prompted the United Kingdom to withdraw from compulsory jurisdiction. 51See id. at 115–16. Losing this sliver of legitimacy would not benefit the court. 52Id. at 82.

Even in the Marshall Islands’ only feasible victorious action among its nine attempts, the net result would likely prove toothless when the United Kingdom withdrew, and the ICJ would simultaneously lose one more modicum of legitimacy. 53See id. at 80–81, 115–16. Ironically, of all the nuclear weapons states, the only nation the Marshall Islands would have the chance to hold accountable in some fashion is the United States—perhaps the nation most notorious for avoiding implementation of international law. 54See van der Vyver, supra note 42, at 11–30 (discussing instances in which the United States declined or refused to implement international law). And, at least in this matter, the only place in which the United States may have been held accountable is in federal court.

II. The Marshall Islands is Unlikely to Win Before the Ninth Circuit, But May Leave a Neglected Door Ajar for Others

While the Marshall Islands filed a complaint in a domestic court of the United States under much fanfare, that domestic strategy did not extend to the courts of any other nuclear weapons state. 55See In the Courts, Nuclear Zero, http://www.nuclearzero.org/in-the-courts (last visited Jan. 31, 2016) (only mentioning filings before the ICJ and U.S. federal court); Lucy Westcott, Marshall Islands Nuclear Lawsuit Reopens Old Wounds, Newsweek (Aug. 1, 2014, 10:01 AM), http://www.newsweek.com/marshall-islands-nuclear-lawsuit-reopens-old-wounds-262491. That the Marshall Islands saw an open window only in America tells a peripheral story about the special availability of American courts for such matters—historically anyhow. 56See generally Complaint, supra note 1.

The Marshall Islands’ pursuit of declaratory relief may have had potential if brought apart from the shroud of overreach. 57See infra Part II.B.3 (noting that the Marshall Islands finally proposes the prospect of being granted only declaratory relief). The injunctive relief was a pipe dream: not only is the political question doctrine strongest where parties want to tell a court to force the executive to lead international negotiations, but this treaty is about multilateral engagement. 58See infra Part II.B. What is more, the Marshall Islands is pursuing enforcement of a particularly vague provision within an already vague treaty. 59See Posner, supra note 26, at 86 (noting that modern treaties are notably vague, and therefore difficult to enforce with any specificity).

This Part demonstrates that the Marshall Islands is unlikely to win before the Ninth Circuit, but may leave a door ajar for future treaty parties to seek declaratory relief in federal court. So long as the U.S. Supreme Court does not grant any writ of certiorari sought after the Ninth Circuit ruling, the door will surely still be cracked for cases in which venue lies outside the Ninth Circuit, and even inside the Ninth Circuit if the court’s opinion is unpublished. 609th Cir. R. 36-3(a) (“Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.”). At the least, the declaratory relief method may have potential for future cases.

A. N.D. Cal. Proceedings Throw Out Injunctive Relief, Highlight Roadblocks to Declaratory Relief

Ultimately, the district court litigation shot down the prospect of injunctive relief and drew out two stumbling blocks to potential declaratory relief—standing and political question. 61See generally Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015). Potential declaratory relief may exist for other treaty parties in the future if standing and political questions inherent in the Marshall Islands litigation are fact-specific to this case. As demonstrated herein, the Marshall Islands’ standing and political question issues do indeed seem fact-specific, leaving hope for others to seek declaratory relief under clearer treaties.

1. Complaint: Dramatic Overreach Seeking Injunctive Relief

The Marshall Islands’ federal complaint presented an “underlying claim”—“that the U.S., including by and through its agencies, breached and continues to breach certain obligations under the [NPT].” 62Complaint, supra note 1, at 1. The complaint sought:

(i) a declaratory judgment pursuant to 28 U.S.C. § 2201 with respect to (a) the interpretation of the Treaty, and (b) whether the United States is in breach of the Treaty; and

(ii) an injunction directing the U.S. take all steps necessary to comply with its obligations under Article VI of the Treaty within one year of the Judgment, including by calling for and convening negotiations for nuclear disarmament in all its aspects. 63 Id. at 6.

2. Motion to Dismiss: A Strategy Primer for Future Cases

The United States filed a motion to dismiss which the court granted. 64See generally Republic of the Marshall Islands, 79 F. Supp. 3d 1068. The motion highlighted matters that state parties to other treaties will need to address in future complaints seeking articulation of American treaty obligations. 65See infra Part III. The United States argued that the Marshall Islands presented no concrete inquiry, violated the political question doctrine, argued based on a non-self-executing treaty, filed in an improper venue, and the statute of limitations barred the suit. 66Notice of Motion to Dismiss at ii, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. July 21, 2014) (No. 14-CV-01885-JSW).

3. Opposition: Distinguishing “Political Overtones” from Nonjusticiable Political Questions

The Marshall Islands’ opposition asserted, “Medellín does not bar this case, where Article VI is an unqualified Executive obligation, and the U.S. has never claimed that it, or any NPT party, retains the option of noncompliance with Article VI.” 67Opposition to Motion to Dismiss at 12, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. Aug. 21, 2014) (No. 14-CV-01885-JSW). Where the United States argued that the entire matter was barred by the political question doctrine under Earth Island Inst. v. Christopher, 68Reply Memorandum in Support of Motion to Dismiss at 6–7, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. Sept. 8, 2014) (No. 14-CV-01885-JSW). The Ninth Circuit held that one pertinent statute was within the exclusive jurisdiction of the U.S. Court of International Trade, and that the circuit court could not enforce a statute that would require the court to “compel the Secretary of State to initiate negotiations with foreign nations on the protection of sea turtles [] [b]ecause ‘the Constitution plainly grants the President the initiative in matters directly involved in the conduct of diplomatic affairs.’” Earth Island Inst. v. Christopher, 6 F.3d 648, 653 (9th Cir. 1993). a 1993 Ninth Circuit case concerning statutory provisions protecting sea turtles, the Marshall Islands retorted that Earth Island was both off point in its focus on constitutionality (the Marshall Islands made no constitutional challenges to the treaty), and in its timing. 69Opposition to Motion to Dismiss, supra note 67, at viii, 8.Earth Island preceded Zivotofsky v. Clinton, which held that federal court enforcement of a statute requiring specific action by the Secretary of State was justiciable because it did not raise a political question. 70Zivotofsky ex rel Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012). Specifically, the federal statute at issue required the Secretary of State to note American citizens’ birthplaces on passports and Consular Reports of Birth Abroad. Id. at 1423. From the Marshall Islands’ perspective, Earth Island was overturned in any manner pertinent to the present proceedings. 71Opposition to Motion to Dismiss, supra note 67, at viii, 4–8. The state argued that political question was no bar because the court maintained responsibility to interpret legal obligations, even when “significant political overtones” are eminent, citing Japan Whaling Ass’n v. American Cetacean Society. 72Id. (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)). In Japan Whaling, the U.S. Supreme Court held in part that “[t]he Judiciary’s constitutional responsibility to interpret statutes cannot be shirked simply because a decision may have significant political overtones.” 73Japan Whaling, 478 U.S. at 222.

The Marshall Islands also asserted that venue was sufficiently pled because all defendants were deemed to reside in the venue and “U.S. nuclear vertical proliferation occurs” in the Northern District of California, pursuant to 28 U.S.C. § 1391. 74Opposition to Motion to Dismiss, supra note 67, at viii, 13–14. The Marshall Islands asserted that the United States did not meet its burden to prove that the suit was untimely. Id. at 14–15.

4. Reply: New Territory Highlighted by Non-Binding Citations

The United States filed its Reply Memorandum in Support of Motion to Dismiss in September 2014. 75See Reply Memorandum in Support of Motion to Dismiss, supra note 68. The memorandum’s language was dismissive, observing that the Marshall Islands’ “opposition brief does nothing to dispel the extraordinary justiciability concerns presented by the Complaint.” 76Id. at 1. The United States again made five arguments. 77Id.

The first three arguments carry broad applicability and will be discussed at length in Part III. First, the United States argued that the Marshall Islands’ filings failed to allege any “injury in fact sufficient to confer standing,” noting that any “meaningful relief” for the injuries alleged would hinge on actions of other nations not party to the case that could hardly be predicted, let alone controlled. 78Id. at 1–2. Second, standing aside, it argued that the political question doctrine still barred judicial review. 79Id. at 1, 5–6. Third, it argued that the Marshall Islands failed to state a claim for relief because their argument was based on a non-self-executing treaty. 80Id. at 1, 10.

The latter two arguments are fact-specific to the case at hand. As such, they are not as threatening to future treaty parties seeking declaratory relief in federal courts. Fourth, the United States argued that any judicially enforceable rights were pursued in an untimely manner; 81Reply Memorandum in Support of Motion to Dismiss, supra note 68, at 1, 14. and fifth, that the Marshall Islands failed to demonstrate a proper venue in the Northern District of California. 82Id. at 1, 13. These factors will not be as thoroughly analyzed as standing and political question because a party to another treaty could foreseeably present a timely claim in a proper venue regarding a self-executing treaty. The parties made additional filings, and some of the Marshall Islands’ supporters filed amicus briefs. 83See Opposition to Motion to Dismiss, supra note 67; Reply Memorandum in Support of Motion to Dismiss, supra note 68; Brief for Tri-Valley CAREs as Amicus Curiae in Support of Venue in the Northern District, Republic of the Marshall Islands v. United States 79 F. Supp. 3d 1068 (N.D. Cal. Oct. 8, 2014) (No. 14-CV-01885-JSW); Brief for Nuclear Watch New Mexico in Support of Plaintiff and in Opposition to Defendants’ Motion to Dismiss, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. Oct. 6, 2014) (No. 14-CV-01885-JSW).

The Marshall Islands’ counsel may have believed they had a decent shot at surviving the motion to dismiss, given the lack of binding precedent on the matter. The lack of jurisdiction-specific precedent was evidenced by both parties’ near-entire reliance on decisions from other district courts not binding on the district in which the complaint was filed. 84See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015); Opposition to Motion to Dismiss, supra note 67; Reply Memorandum in Support of Motion to Dismiss supra note 68.

5. Ruling: Redress by Injunctive Relief Not Tenable

In January 2015, Judge White expressed a heightened interest in the case. 85See Notice of Tentative Ruling and Questions at 1, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 14-CV-01885-JSW). Two days before the hearing on the motion to dismiss, he tentatively granted the motion and expressed that the matter would be decided on the papers. 86Id. at 1–2. Still, the court invited the parties to each present twenty minutes of oral arguments on five questions issued along with the tentative ruling. 87Id. at 2. Not long after, the court issued a final order granting the motion to dismiss and entering judgment for the United States. 88See Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

Judge White ruled that the Marshall Islands was without standing because its “injury in fact” was questionable at best, and even if present, could not be redressed by the injunctive relief requested; and the complaint otherwise concerned a nonjusticiable political question. 89Id. at 1072. The court did not reach the right of action, venue, or timeliness, and declined to articulate the United States’ obligations under the NPT. 90While making no pronouncement, the court quoted the U.S. Senate report that accompanied the advice and consent ratification. See id. at 1070. That report articulated the core purpose of the treaty as slowing, not stopping, the spread of nuclear weapons, doing so through prohibiting weapon states from transferring weapons and prohibiting non-weapon states from any path of obtaining nuclear weapons. Id. If this part of the order were construed as a full articulation of American NPT obligations, the Marshall Islands’ current arguments would be negated. The Marshall Islands filed notice of appeal in April 2015. 91See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 14-CV-01885-JSW), appeal docketed, No. 15-15636 (9th Cir. Apr. 2, 2015).

B. Ninth Circuit Filings Focus Questions on Standing, Political Question Doctrine, and Non-Self-Executing Treaty Status Hurdles to Declaratory Relief

The Marshall Islands filed its appellant brief in July 2015, and the United States responded in late October, and the Marshall Islands replied in December. 92Brief of Appellant, Republic of the Marshall Islands v. United States, No. 1:15-cv-15363 (9th Cir. July 13, 2015); Brief of Appellee, Republic of the Marshall Islands v. United States, No. 1:15-cv-15363 (9th Cir. Oct. 28, 2015); Reply Brief of Appellant, Republic of the Marshall Islands v. United States, No. 1:15-cv-15363 (9th Cir. Dec. 15, 2015). As the appellate matters came into focus, three crucial sets of legal factors were drawn out—those of Lujan, Baker, and Medellín. 93See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Baker v. Carr, 369 U.S. 186, 217 (1962). See generally Medellín v. Texas, 552 U.S. 491 (2008).

The Lujan factors establish “the irreducible constitutional minimum of standing contains three elements.” 94Lujan, 504 U.S. at 560. They are:

injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical,

causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court; and

it must be likely, as opposed to merely speculative, that the injury will be “redressed by a favorable decision.” 95Id. at 560–61 (internal citation and quotation marks omitted).

The Baker factors identify “any case held to involve a political question.” Notably, Baker made clear that not every case involving a political question was nonjusticiable. 96Baker, 369 U.S. at 211 (“[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”). The factors for identifying cases involving political questions are:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. 97Id. at 217.

Medellín, still debated in meaning and scope, stated at the least that non-self-executing treaties are not automatically enforceable domestic law. 98See Bradley, supra note 4, at 48 (“The Court appeared to reject the argument that . . . a non-self-executing treaty merely fails to provide a right of action. . . . On the other hand, the opinion also contains statements that equate non-self-execution simply with lack of judicial enforceability, and the Court’s test for self-execution appears to focus on whether a treaty is a ‘directive to domestic courts,’ not whether it has the status of domestic law.”). Contra van der Vyver, supra note 42, at 146 (“The judgment of the U.S. Supreme Court in Medellín v. Texas (and in Sanchez-Llamas) will not go down in history as the acme of judicial excellence.”). This section imagines that none of these factors would have barred the Marshall Islands’ claim for declaratory relief if it was sought without a prayer for injunctive relief, and if injury in fact was met.

1. Appeal: Finally Raising the Prospect of Only Declaratory Relief

The Marshall Islands’ appeal presented two questions on the political question doctrine, two questions on standing, and a question of declaratory relief. 99Brief of Appellant, supra note 92, at 1–3. The latter is central to this analysis, boiling down to declaratory relief: “[s]eparate from injunctive relief, does a court have jurisdiction to interpret the NPT and determine whether the Executive has breached it?” 100Id. at 3 (emphasis added). The Ninth Circuit ruling promises interest, as does whether the court publishes its opinion to establish binding precedent within its jurisdiction. 1019th Cir. R. 36-3 (“Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.”). Still, given venue matters, few future complaints for declaratory relief regarding treaty obligations would be brought in the Ninth Circuit; thus, even a binding, published opinion would likely have narrow impact. 102See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015).

The pertinent Baker questions concern “textual commitment” and “judicially discoverable and manageable standards.” 103Brief of Appellant, supra note 92, at 1–2. They are: “[d]oes the Executive power to make treaties override the judicial mandate to determine cases arising under such treaties, so as to deprive the Court of jurisdiction in this case arising under the NPT?” and “[i]s there even one judicially manageable standard to determine whether the Executive has breached NPT Article VI?” 104Id. (internal citation omitted).

Regarding standing, the Marshall Islands presented a two-part question on injury in fact, and a series of alternative questions on redressability. The injury in fact questions are peripheral to this Essay because they are fact-specific to the case at bar. 105See supra Part II.A.4. The Marshall Islands’ injury in fact questions were: “a. Is denial of the Marshall Islands’ entitlement to the Executive’s participation in disarmament negotiations a sufficient injury-in-fact for Article III standing? b. Is a measurable increase in current risk from nuclear weapons vertical proliferation a sufficient injury-in-fact for Article III standing?” Brief of Appellant, supra note 92, at 2–3 (internal citation omitted). The redressability question is prime ground for exploring future application: “Would compelling the Executive to participate in NPT Article VI negotiations redress the first injury the Marshall Islands pleaded, which is the denial of its right to Executive participation in such negotiations?” 106Brief of Appellant, supra note 92, at 2–3 (internal citation omitted). The alternative questions were:b. [W]ould compelling the Executive to participate in NPT Article VI negotiations provide a sufficient incremental step to redress the second injury the Marshall Islands pleaded, which is the grave, real, and increased risk from vertical nuclear proliferation? c. Do absent parties preclude incremental relief to the Marshall Islands, where the Executive has never named an essential, absent party and the Marshall Islands disputes that there are absent, essential parties for the claims it pleaded? d. If the NPT is valid, does a court possess the authority to order Executive compliance with Article VI?Id.

2. Reply: Focusing on Injunctive Relief as a Bridge Too Far

The United States’ reply addressed standing, political question doctrine, the non-self-executing nature of NPT Article VI, and declaratory relief.

Per standing, the United States retorted that the Marshall Islands failed to meet the Lujan requirements. 107See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Most attention was given to the argument that mere fear of future nuclear weapons use is not a “certainly impending” “concrete and particularized injury,” and that any existing injury is beyond the federal courts’ redress. 108Brief of Appellee, supra note 92, at 12–29 (citing Lujan, 504 U.S. at 560). The Government allowed federal courts to maintain an “indisputably critical role in adjudicating” extradition treaties, and distinguished those treaties on grounds of their self-executing nature. 109Id. at 54–57. The role of federal courts in treaty interpretation would be raised within the Marshall Islands’ political question doctrine questions as well.

As for the political question doctrine, the Government raised two Baker factors—that the matter is “textually committed to the political branches,” and that “no manageable standards exist for resolving [the Marshall Islands’] claims”—and argued that the other four factors generally weighed against adjudication. 110Id. at 29–30, 40, 44 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)).

The Government did not imply the political question doctrine makes a blanket bar that federal courts can never interpret treaties. To the contrary, when positing “whether the federal courts can interpret treaties that bear on civil disputes between private parties, or on criminal appeals,” the Government answered itself: “[o]f course they can.” 111Id. at 37. The Government distinguished the Marshall Islands’ approach as an attempt to use federal courts to force the United States into action on grounds of a right granted to the Marshall Islands by the NPT. 112Id. at 38.

Leaving further room for the promise of other states parties to other treaties to bring claims in federal court, the Government’s final arguments were NPT-specific, both directed toward the fifth Baker factor (“an unusual need for unquestioning adherence to a political decision already made”) and the non-self-executing status of the treaty. 113Id. at 29–30 (quoting Baker, 369 U.S. at 217). The United States presented a strong case that the NPT is non-binding in terms of domestic obligation, regardless of applicable international obligation. Recalling Medellín v. Texas, the Government regaled the NPT’s ratification history to highlight a lack of congressional intent for domestic obligation. 114Id. at 48.

The United States disposed of the Marshall Islands’ declaratory relief claim in a mere five paragraphs. 115Id. at 54–57. The Government argued that the Declaratory Judgment Act maintains the Article III case or controversy requirement, and that the Marshall Islands still lacked such standing. Again, the Government denied the Marshall Islands’ standing both for lack of case or controversy, and the bar of the political question doctrine. 116Id. at 56 (“[P]laintiff’s claims are nonjusticiable because plaintiff lacks Article III standing and its claims present a political question.”).

3. Response: Tacitly Admitting the Lost Cause of Injunctive Relief

The Marshall Islands responded only to the matter of the political question doctrine. 117See generally Reply Brief of Appellee, supra note 92. As the Marshall Islands sees it, “[n]o law elevates the President’s authority to make treaties above the judiciary’s power to decide disputes arising under treaties that remain the law of the land.” 118Id. at 2. The Marshall Islands’ response highlights both its overreach and its potential success had it merely aimed for a more realistic sole goal of declaratory relief. Asserting that “the NPT is multilateral cannot preclude a claim against the United States to determine the NPT’s legal meaning and address the United States’ own conduct,” the Marshall Islands is arguably correct on the former, but still wrong on the latter. 119Id. at 3. In a further fact-specific wrinkle that need not rule out potential declaratory relief for other treaty parties, the treaty language that the Marshall Islands sought to enforce was vague: “undertake[] to pursue negotiations in good faith” mandates no formal endgame. 120See Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI (“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith . . . on a treaty on general and complete disarmament under strict and effective international control.”); Davis, Hurting More than Helping, supra note 3, at 84 (“The fuzzy language of Article VI, however, creates an uphill battle delineating compliance and non-compliance.”). Moreover, that provision called for multilateral action such that even an unprecedented mandate of injunctive relief against the United States could not bring any other sovereign to the negotiation table, leaving the matter unresolved. 121See Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI.

The end of the Marshall Islands’ response brief asserted, “declaratory relief can redress a legal dispute ‘whether or not further relief is or could be sought.’” 122Reply Brief of Appellant, supra note 92, at 23 (quoting 28 U.S.C. § 2201). Here, the Marshall Islands finally seemed to tacitly acknowledge a legal truth that should have directed their strategy all along: injunctive relief was never available, even if declaratory relief may have been available if standing was established. 123Id. By grabbing for both forms of relief, the Marshall Islands alienated its case from serious consideration by the lower court.

In the case at hand, standing probably does bar declaratory relief because there is no case or controversy, because there is seemingly no available relief (for fact-specific reasons: the asserted treaty obligation is multilateral and there is arguably no breach). Injunctive relief was barred not just by political question, but because even if the judiciary forced the executive to comply, American compliance would be meaningless: this multilateral treaty’s provision in controversy requires a number of nations to come to the table, and a U.S. court has no power to send foreign sovereigns to the negotiation table over nuclear weapons. 124See Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI. The district court decided that the NPT did not create a bilateral obligation between the United States and the Marshall Islands. 125Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1072 (N.D. Cal. 2015). But what if another treaty did? Setting aside the lost cause of injunctive relief, and admitting that for lack of standing the Marshall Islands’ case is likely doomed entirely, the next Part will explore the potential for declaratory relief where treaty parties may have higher hopes for standing.

III. Redress, Political Question, and Non-Self-Executing Treaty Status May Not Be Clear Bars When Only Declaratory Relief is Sought

While injunctive relief appears squarely within the reach of the political question doctrine, declaratory relief is not so clearly barred. Part II established that the Marshall Islands’ appeal will likely still fail for lack of standing regarding injury in fact, and that the pursuit of injunctive relief was an unfounded exercise in overreach. That said, while the United States wrote its filings as though the matter was a procedurally open-and-shut case, the cases the Government cited betrayed its tone. The law is not so settled. 126Reply Memorandum in Support of Motion to Dismiss, supra note 68, at 7 (citing cases regarding political question from the D.C. Circuit, the Eastern District of Pennsylvania, and the District Court for the District of Columbia, and citing a single non-binding district case denying an actionable claim under the Declaratory Judgment Act).

Part III posits that political question and redressability would not have barred declaratory relief. What, then, if a treaty party established injury in fact and only sought declaratory relief? This Part explores the prospect of future declaratory relief where injury in fact is established. Standing is addressed first, arguing that declaratory relief establishes sufficient redress to satisfy Lujan. Political question is assessed next, positing that the Baker factors are not so broad as to call for abstention from pure declaratory relief. Finally, given the conflation of issues in the district court filings, this Part interprets Medellín v. Texas as not barring mere interpretation of treaties when enforcement is not at issue.

The legal strategy that the Marshall Islands attempted to bring out of dormancy may have high hopes for other states party to treaties for which they would have standing if the United States is in breach. 127Complaint, supra note 1, at 1–2 (“[I]t is in no way novel for the U.S. federal courts to interpret a treaty and/or to find a treaty violation.”). Here, though, the Marshall Islands’ argument for merely prospective injury in fact could hardly surmount the Lujan standard. Redressability is difficult to imagine because the American obligation under the NPT is multilateral: a district court could hardly issue an ex-parte directive to all the NPT parties. 128See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

Notably, any published, binding Ninth Circuit precedent in this case may have limited impact and would not foreclose declaration of treaty obligations in other federal jurisdictions. 129That is, short of a subsequent U.S. Supreme Court appeal, grant of writ, and opinion in the case at hand. The U.S. District Court for the District of Columbia would most likely be the appropriate venue for future treaty parties seeking a judicial declaration of the United States’ treaty obligations, and Ninth Circuit precedent would not bind the District Court for the District of Columbia. 130See Notice of Motion to Dismiss, supra note 66. Notably, Judge White did not address venue in his order granting the motion. See generally Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

A. Standing: Declaratory Relief is Sufficient Redress When Injury in Fact is Established

Of all the Lujan factors—injury in fact, traceable injury, and likely redress—Marshall Islands v. United States demonstrates that injury in fact and redressability are most crucial for future treaty parties that may seek declaratory relief concerning American treaty obligations. 131Lujan, 504 U.S. at 560–61. Traceable injury is presumed, given that an established treaty would always be in play. Leaving injury in fact to be established by a treaty party on a fact-specific basis, this section dispenses of the redress factor as a bar to declaratory relief.

The Declaratory Judgment Act, codified as 28 U.S.C. § 2201, prescribes declaratory judgment as sufficient redress.

In a case of actual controversy within its jurisdiction, [tax and trade exceptions] . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such. 13228 U.S.C. § 2201 (emphasis added).

As this statute conveys, when Article III case and controversy requirements are met, pure declaratory relief is a final judgment itself regardless of the availability of other relief. 133Id. Tellingly, the Government’s motion to dismiss cited a single case to assert that “[t]he Declaratory Judgment Act provides neither a substantive basis for relief nor a cause of action”—a nonbinding district court case at that. 134Reply Memorandum Supporting Motion to Dismiss, supra note 68, at 10 n.3 (citing Bisson v. Bank of Am., 919 F. Supp. 2d 1130, 1139 (W.D. Wash. 2013)). Notably, as the U.S. Supreme Court explained in MedImmune, Inc. v. Genentech, Inc., the Declaratory Judgment Act contains permissive rather than mandatory language for granting declaratory relief, acknowledging that district courts may provide declaratory relief to treaty parties but not implying that courts must in every instance. 135MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007).The Declaratory Judgment Act provides that a court “may declare the rights and other legal relations of any interested party,” 28 U.S.C. § 2201(a) (emphasis added), not that it must do so. This text has long been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.Id. Case-by-case analysis is maintained by the language of 28 U.S.C. § 2201. 136Id. This legal strategy need not inspire a parade of horribles.

The Northern District of California found that the Marshall Islands “fail[ed] to account for the fact that the Court cannot mandate specific performance as a remedy or grant redress for its alleged injury.” 137Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1072 (N.D. Cal. 2015) (emphasis added). To be sure, granting the Marshall Islands’ request for specific performance would be far beyond the scope of the court’s jurisdiction. 138See infra Part III.B. If the Marshall Islands only sought declaratory relief, however, the court would have been hard pressed to state that it could not grant redress for a well-pled injury in fact.

B. Political Question Factors Do Not Bar Declaratory Relief

The district court’s dismissal order leaned on Baker’s political question standard to disclaim that it “lack[ed] the standards necessary to fashion the type of injunctive relief” sought. 139See Republic of the Marshall Islands, 79 F. Supp. 3d at 1074 (emphasis added). Narrowed to declaratory relief, however, a court would hardly lack a necessary standard. 140Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012).Baker contemplates cases that present nonjusticiable political questions. 141See generally Baker v. Carr, 369 U.S. 186 (1962). But Baker did not intend to bar all political questions from federal courts, as the Supreme Court noted: “[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial recognizance.” 142Id. at 211. To be sure, there is ample precedent in which federal courts felt comfortable interpreting treaties outside the reach of Baker. 143See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008). Even in decisions where the Supreme Court did not implement a treaty, or found that the treaty could not be implemented, interpretation still occurred. 144See, e.g., Sanchez-Llamas, 548 U.S. 331; Medellín, 552 U.S. 491. Treaty interpretation is not inherently nonjusticiable. 145Hathaway et al., supra note 7, at 87–89 (recalling the history of interpretive enforcement of international law in federal courts). In the case at hand, it is worth acknowledging the Government’s argument that, specific to this nuclear-scale case, judicial involvement may be dangerous:[D]etermining whether the United States is currently in breach of its treaty obligations would require a court to question the propriety of long-term negotiation strategies and choices that have already been made and may take time to bear fruit. Judicial intervention into these sensitive political decisions could have unanticipated consequences for ongoing negotiations of which plaintiff and the court are necessarily unaware.Brief for Appellee, supra note 92, at 45–46.

Cabining off injunctive relief, declaratory relief is little more than treaty interpretation. Historically, and surely recently, federal courts hardly have trouble viewing treaty interpretation as justiciable—if a political question at all. 146See, e.g., Sanchez-Llamas, 548 U.S. 331; Medellín, 552 U.S. 491. Some scholars laud the broader practice of “interpretive enforcement” of international law, with particular attention to that of treaties. 147Hathaway et al., supra note 7, at 87–89.Medellín v. Texas is a prime example of treaty interpretation. 148See infra Part III.C. The Government is beyond reproach in maintaining that a district court could not require the executive branch to engage in multilateral negotiations over nuclear weapons, as the Marshall Islands asked in its lethal overreach. 149Brief for Appellee, supra note 92, at 29–46. That concern need not be rehashed. Whether the political question doctrine bars any declaratory relief, however, is a separate matter.

Recently, in Zitovosky v. Clinton, the Supreme Court narrowed the scope of the political question doctrine. 150Jared P. Cole, Congressional Research Service, R43834, The Political Question Doctrine: Justiciability and the Separation of Powers 2 (2014), https://www.fas.org/sgp/crs/misc/R43834.pdf. The Supreme Court offered a reminder that the political question doctrine is meant to be a “narrow exception” to justiciability. 151Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012). The Supreme Court reiterated that appropriate cases must be decided even when judges “would gladly avoid” them. 152Id. (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)). The Supreme Court reiterated its definition of political question in Zivotofsky: “a controversy involves a political question . . . where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.” 153Id. (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)) (internal quotation marks omitted).

Zivotofsky distinguished federal courts’ enforcing statutory rights from “supplant[ing] a foreign policy decision of the political branches with the courts’ own unmoored determination.” 154Id. Where would treaty interpretation fall along that scale? Admittedly, statutory interpretation is not exactly treaty interpretation. But perhaps the two are close. If a treaty is signed, the policy decision and even the legal obligation are already established. 155Medellín v. Texas, 552 U.S. 491, 509 (2008). A federal court’s interpretation of a treaty is moored by the executive’s decision to sign it, and where applicable, the legislature’s decision to ratify it. 156See Bradley, supra note 4, at 46–48. Treaty interpretation is a declaration of pre-existing American obligations—a “familiar judicial exercise” not unlike statutory interpretation in Zivotofsky. 157Zivotofsky, 132 S. Ct. at 1427. As for subsequent foreign policy decisions, whether or how the executive branch choses to abide by the obligation is its own concern. Again, this Essay affirms that injunctive relief is clear and understandable territory for nonjusticiable political question; declaratory relief, though, could be separate. 158See supra Part II.

On a second hearing three years later, the Supreme Court decided that the ultimate issue in Zivotofsky—recognizing a foreign nation—was committed to presidential authority. 159Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2094 (2015). The Court arrived at that delineation because “[t]he weight of historical evidence indicates Congress has accepted that the power to recognize foreign states and governments and their territorial bounds is exclusive to the Presidency.” 160Id. The weight of historical evidence does not so strongly favor reserving treaty interpretation from federal courts. 161See Bradley, supra note 4, at 46–48. If nothing else, a party could seek declaratory relief as to whether a treaty is self-executing.

C. Medellín Articulated an “Obligation to Interpret” and Arguably Limits the Self-Executing/Non-Self-Executing Test to Treaty Enforcement

While both parties’ filings made much ado over the self-executing or non-self-executing status of the NPT, that distinction may not matter when only declaratory relief is sought. 162See Opposition to the Motion to Dismiss, supra note 67, at viii, 8–12; Reply Memorandum in Support of Motion to Dismiss, supra note 68, at 10; Hathaway et al., supra note 7, at 89 (“Interpretive enforcement may extend to non-self-executing treaties as well as self-executing treaties.”). There is a difference in treaty enforcement and treaty interpretation such that Medellín and even Baker could bar injunctive relief without barring declaratory relief. Medellín may be interpreted as cabining off only enforcement of non-self-executing treaties. 163See William J. Carter, Jr., Treaties as Law and the Rule of Law: The Judicial Power to Compel Domestic Treaty Implementation, 69 Md. L. Rev. 344, 346 (2010). Carter takes the matter beyond interpretation, reaching non-self-executing treaty enforcement: “even non-self-executing treaties are amenable to domestic judicial enforcement in a manner consistent with both separation of powers principles and the rule of law.” Id.Medellín is further distinct for addressing private actions of individual citizens rather than the government, as the district court acknowledged. 164See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1078 n.2 (N.D. Cal. 2015) (“[A] private right of action is irrelevant.”). The pertinent distinction may be between treaty interpretation and enforcement.

In Marshall Islands, the Northern District of California dismissed any self-executing treaty doctrine in a single footnote within its political question section. 165See id. The court found that “the issue of whether the [NPT] is self-executing or provides a private right of action is irrelevant to the enforcement by a state-party that is a signatory to the Treaty.” 166See id. (emphasis added). That analysis is mostly correct and raises a notable flag. The private right of action matter is surely moot for a treaty party. The self-executing nature of the treaty, however, is probably pertinent only to whether the treaty may be enforced. This section contends that Medellín’s distinction applies only to treaty enforcement. Because the pursuit of pure declaratory relief seeks not enforcement—only interpretation—the Medellín distinction need not apply.

Medellín not only interpreted U.S. obligations under a treaty, but Chief Justice Roberts’ majority opinion characterized the exercise as an “obligation to interpret treaty provisions to determine whether they are self-executing.” 167Medellín v. Texas, 552 U.S. 491, 514 (2008). In an admittedly multifaceted case, but one that ultimately focused largely on interpreting the Vienna Convention, the phrase “political question” appears in neither the opinion, concurrence, or dissent; nor is Baker cited anywhere. 168See generally id. (Roberts, C.J., for the majority; Stevens, J., concurring in judgment; Breyer, J., with Souter, J., and Ginsburg, J., dissenting).

Medellín highlighted the distinction between self-executing and non-self-executing treaties. 169Medellín did not create the self-executing distinction, only brought it back to the forefront of jurists’ minds. See id. at 504–05. Chief Justice Roberts’ opinion cited decisions as old as 1829 that made similar distinctions. Id. (citing , , ). The opinion defined “self-executing” in a footnote:

The label “self-executing” has on occasion been used to convey different meanings. What we mean by “self-executing” is that the treaty has automatic domestic effect as federal law upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress. 170Id. at 505 n.2 (emphasis added).

Notably, the opinion’s engagement of “self-executing” matters continually referenced the distinction relative to enforcement—something greater than mere interpretation. 171“But not all international law obligations automatically constitute binding federal law enforceable in United States courts.” Id. at 504 (emphasis added). “When, in contrast, ‘[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.’” Id. at 505 (quoting ) (emphasis added).

Similarly, in 2009, the Ninth Circuit leaned on a non-self-executing treaty to guide statutory interpretation. 172Hathaway et al., supra note 7, at 89 (citing Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009)). Not enforcement, but interpretation. Given this precedent, granting declaratory relief for self-executing and non-self-executing treaties is hardly a stretch.

Those quick to throw out other treaties alongside the Vienna Convention in the style of Medellín should also recall that Medellín was partially hung on the private nature of the right sought to be enforced. The Roberts majority noted: “Even when treaties are self-executing in the sense that they create federal law, the background presumption is that international agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts.” 173Medellín, 552 U.S. at 506 n.3 (citing Restatement (Third) of Foreign Relations Law of the United States § 907, cmt. a (1986)). To be sure, no un-enumerated private rights are created by self-executing treaties; but the matter of sovereign treaty parties seeking declaratory relief is distinguishable. 174See id.

Despite the general futility of the Marshall Islands’ litigation, the campaign still offers a glimmer of hope for others’ future action in federal court.

Conclusion: Even if These Suggestions Prove Untenable, Some New Path for Treaty Accountability Should be Forged

Looking to the prospect of treaty parties seeking declaratory relief in federal court, the Marshall Islands’ fifth appellate question is most provocative: “Separate from injunctive relief, does a court have jurisdiction to interpret the NPT and determine whether the Executive has breached it?” 175Brief of Appellant, supra note 92, at 3. In the immediate case, the answer is most likely, “yes, a court does have such jurisdiction, when standing is established; otherwise, absent an Article III case or controversy, the court’s judgement would be an advisory opinion.” 176See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–27 (2007). “The federal Declaratory Judgment Act was signed into law the following year, and we upheld its constitutionality in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). Our opinion explained that the phrase ‘case of actual controversy’ in the Act refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under Article III.” Id. (internal citations omitted). Injury in fact may be a bridge too far for Article VI of the NPT and its vague call to multilateral action. But there is hope for action regarding an alleged breach of another provision of a separate treaty, in which injury in fact could be readily established.

Having dealt with the redressability matter of standing, and distinguished injunctive relief from declaratory relief for both political question and self-execution doctrine purposes, a treaty party that could establish injury in fact may have a hope of declaratory relief in federal court. Again, if Medellín is more broadly interpreted, this promise may be limited to self-executing treaties; even then, Medellín itself pronounced an obligation of federal courts to assess whether treaties are self-executing. 177Medellín, 552 U.S. at 514 (“Given our obligation to interpret treaty provisions to determine whether they are self-executing.”). That in itself is some modicum of declaratory relief.

Given the broad record of American noncompliance with treaties, and the futile outcomes of Nicaragua and Avena, this route may be a worthwhile option for engaging the American government in discussions on treaty obligations—and a fruitful first resort for seeking American treaty compliance. 178See Bradley, supra note 4, at 44–49; supra Part I.B. Ironically, this strategy is being tested for modern utility on one hot-button issue of international law where the United States is in as much compliance as anyone could realistically expect. See supra Part I.A.

To be fair, in the case of some major powers—the United States included—some of what is deemed exceptionalism is a genuine function of federalism rather than any malicious elitism, and is not likely to change anytime soon. 179See Davis, I, Too, Sing America, supra note 2, at 123 (highlighting seeming exceptionalism as a benign function of federalism); see also Bradley, supra note 4, at 58–62. Making insular matters worse, American scholars hardly even engage in comparative analysis. See Davis, I, Too, Sing America, supra note 2, at 123 n.7. For an applicable sentiment broader than public international law, see Anne-Marie Slaughter, Unexceptionalism, Atlantic (Nov. 2007), http://www.theatlantic.com/magazine/archive/2007/11/unexceptionalism/306306/. That natural limitation on major powers’ public international law engagement presents all the more reason for good faith engagement wherever possible. 180One jurist observed a “broad popular sentiment that the land of Jefferson and Lincoln has nothing to learn about rights from any other country.” Anne-Marie Slaughter, A Brave New Judicial World, in American Exceptionalism and Human Rights 277 (Michael Ignatieff ed., 2005). Even if the theories and methods presented in this Essay are ultimately unfeasible, some new method must be found. This endeavor is part of what should be a good faith effort to comply with international legal obligations that the United States chose to take on itself. In a different vein, perhaps treaties are not the wave of the future. Some academics present strong indictments against the efficacy of treaties, while others posit circumventing the Treaty Clause entirely, given the trouble in American procedure. 181See generally Posner, supra note 26 (discussing the efficacy of treaties); Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236 (2008) (describing ending the treaty process as “charting a course toward ending the Treaty Clause for all but a handful of international agreements”). Still, for now, there should be a clearer path forward for dealing with treaties currently on the books. As the Marshall Islands’ present litigation illustrates, one potential avenue for meeting others halfway may be permitting treaty parties to seek declaratory relief in federal courts for interpretation of American obligations under a treaty.

Footnotes

Law Clerk, U.S. District Court for the Eastern District of Virginia. J.D., Emory University School of Law; M.Sc., University of Oxford; B.A., Auburn University. The author thanks professors Johan van der Vyver and Jonathan Nash for their helpful feedback, and the EILR Executive Board for their able editing. This Essay continues commentary begun in Hurting More than Helping: How the Marshall Islands’ Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court, 25 Minn. J. Int’l L. 79 (2016).

1Complaint at 1–2, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 3:14-CV-01885-JSW).

2Katherine M. Davis, I, Too, Sing America: Customary International Law for American State and Federal Courts’ Post-Kiobel Jurisprudence, Guided by Australian and Indian Experiences, 29 Emory Int’l L. Rev. 119, 123 (2014) [hereinafter Davis, I, Too, Sing America]. By contrast, matters of private international law seem to be ushered into federal courts with more grace. See, e.g., BG Group plc v. Republic of Argentina, 134 S. Ct. 1198 (2014).

3Katherine Maddox Davis, Hurting More than Helping: How the Marshall Islands’ Seeming Bravery Against Major Powers Only Stands to Maim the Legitimacy of the World Court, 25 Minn. J. Int’l L. 79, 98–100 (2016) [hereinafter Davis, Hurting More than Helping]; see also A. Mark Weisburd, Failings of the International Court of Justice 3 (2015) (“[A] contradiction between the significance for international law accorded to the I.C.J.’s decisions by tribunals and scholars and the formal authority accorded to the Court in its Statute.”); infra Part I.B.

4See Davis, Hurting More than Helping, supra note 3, at 88; Oona A. Hathaway, Between Power and Principle: An Integrated Theory of International Law, 72 U. Chi. L. Rev. 469, 469 (2005) (“[D]omestic enforcement mechanisms are a crucial force pushing countries to comply with international treaties . . . .”). There is also a growing awareness of the broader interplay between federal courts and the international community. See, e.g., Curtis A. Bradley, International Law in the U.S. Legal System, at xi (2d ed. 2015); Stephen Breyer, The Court and the World 197 (2015).

5See Plaintiff’s Notice of Appeal at 1–2, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 14-CV-01885-JSW).

6See Complaint, supra note 1, at 27; infra Part II.

7See Complaint, supra note 1, at 1–2; see also Oona A. Hathaway et al., International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int’l L. 51, 88–89 (2012) (citing Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243 (1984)).

8James Conca, The Nuclear Weapons StatesWho Has Them and How Many, Forbes (Sept. 25, 2014, 10:54 AM), http://www.forbes.com/sites/jamesconca/2014/09/25/the-nuclear-weapons-states-who-has-them-and-how-many/. The nuclear states are the United States, the United Kingdom, France, China, Russia, India, Pakistan, Israel, and North Korea. Id.

9See Treaty on the Non-Proliferation of Nuclear Weapons art. VI, July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161.

10See Complaint, supra note 1, at 1. In its Complaint, the Marshall Islands named the United States, President Barack Obama, the Department of Defense, Secretary of Defense Charles Hagel, the Department of Energy, Secretary of Energy Ernest Moniz, and the National Nuclear Security Administration. See id. The U.S. Department of Justice Civil Division, Federal Programs Section and Appellate Section filed on behalf of the collective government defendants before the district and appellate courts, respectively. This Essay refers to the defendants collectively as “the Government” and “the United States.” See Press Release, Int’l Court of Justice, The Republic of the Marshall Islands Files Applications Against Nine States for Their Alleged Failure to Fulfill Their Obligations with Respect to the Cessation of the Nuclear Arms Race at an Early Date and to Nuclear Disarmament, Press Release No. 2014/18 (Apr. 25, 2014), http://www.icj-cij.org/presscom/files/0/18300.pdf [hereinafter Press Release No. 2014/18]. See generally Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015); Brief of Appellee, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015 Oct. 28, 2015) (No. 4:14-CV-01885-JSW).

11Republic of the Marshall Islands, 79 F. Supp. 3d 1068; Plaintiff’s Notice of Appeal at 1–2, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015 Apr. 2, 2015) (No. 4:14-CV-01885-JSW).

12Indeed, the ICJ gave India a year to respond, and the Marshall Islands six months to respond on whether the ICJ’s jurisdiction in the matter is proper. See Davis, Hurting More than Helping, supra note 3, at 85.

13See Press Release No. 2014/18, supra note 10.

14See id.

15See Davis, Hurting More than Helping, supra note 3, at 83.

16See Complaint, supra note 1, at 1–2.

17See William J. Broad & David E. Sanger, As U.S. Modernizes Nuclear Weapons, ‘Smaller’ Leaves Some Uneasy, N.Y. Times, Jan. 12, 2016, at A1.

18See infra Part III.

19Rebecca Johnson, Unfinished Business: The Negotiation of the CTBT and the End of Nuclear Testing 1 (2009). As of 1968, the five nuclear weapons states were China, France, Russia, the United Kingdom, and the United States. Id. at 2.

20Id.

21Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI (“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith . . . on a treaty on general and complete disarmament under strict and effective international control.”).

22See id.; Nobuyasu Abe, The Current Problems of the NPT: How to Strengthen the Non-Proliferation Regime, in The Nuclear Nonproliferation Treaty and India 38 (Rajiv Nayan ed., 2012).

23Conca, supra note 8. Because the NPT restricts the title of “nuclear weapons state” to those states who tested weapons prior to January 1, 1967, none of the four latecomers were able to join the NPT as weapons states. Most have chosen not to join as non-weapons states. Abe, supra note 22, at 38. Notably, India pushed firmly against the delineation between nuclear weapons haves and have nots, now holding a peculiar space as an American-embraced nuclear state not recognized by the NPT. See Kate Sullivan, S. Rajaratnam Sch. of Int’l Studies, Policy Report: Is India a Responsible Nuclear Power? 1 (2014), http://oxford.academia.edu/KateSullivan.

24Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art VI.

25Walter Pincus, The Explosive Cost of Disposing of Nuclear Weapons, Wash. Post (July 3, 2013), http://www.washingtonpost.com/world/national-security/the-explosive-cost-of-disposing-of-nuclear-weapons/2013/07/03/64f896e0-e287-11e2-80eb-3145e2994a55_story.html. In current value, four atomic bombs developed by the World War II Manhattan Project cost $24.1 billion to develop and six years to build. Those bombs were “the Trinity plutonium implosion device tested in the New Mexico desert; the Little Boy uranium bomb dropped on Hiroshima; the Fat Man plutonium bomb that hit Nagasaki, and an unused uranium bomb.” Id. By contrast, the U.S. government’s proposed allocation for blending the leftover 37.5 tons of plutonium, to render it unusable in further nuclear weaponry, is $24.2 billion. Id. The blending process is estimated to take more than two decades. Id.

26See Eric A. Posner, The Twilight of Human Rights Law 86 (2014) (regarding treaties generally, “the problem is not so much that states violate treaty terms but that the treaties do not create any meaningful obligations”).

27In a realistic (if cynical) perspective, “when legal rules are vague, one can easily argue that one complied with them even when one’s conduct does not seem to advance the underlying purpose of the rules . . . .” Id.

28See generally Complaint, supra note 1.

29Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI.

30For a record of past Review Conferences and Preparatory committees, see NPT Review Conferences and Preparatory Committees, www.un.org/disarmament/WMD/Nuclear/NPT_Review_Conferences.shtml (last visited Mar. 13, 2016).

31See id.

32Id.

33Avner Cohen & Lily Vaccaro, The Import of the Marshall Islands Nuclear Lawsuit, Bull. Atomic Scientists (May 6, 2014, 11:42 AM), http://thebulletin.org/import-marshall-islands-nuclear-lawsuit7143.

34Open Letter in Support of the Marshall Islands’ Nuclear Zero Lawsuits, Nuclear Age Peace Found. (Nov. 4, 2014), www.wagingpeace.org/rmi-open-letter/; Cohen & Vaccaro, supra note 33 (“While a number of nongovernmental organizations have been vocal about the lawsuit, especially at NPT Preparatory Committee side events, the delegations participating in the conference have remained all but silent on the subject.”); see also Preparatory Comm. for the 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Summary Record of the 3rd Meeting, UN Doc. NPT/CONF.2015/PC.111/Sr.3 (Apr. 29, 2014) (not mentioning the Marshall Islands at all, let alone the Marshall Islands participating in debate); Preparatory Comm. for the 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Recommendations by the Chair to the 2015 NPT Review Conference, UN Doc NPT/CONF.2015/PC.111/WP.46 (May 8, 2014) (not mentioning the Marshall Islands).

35While plenty of nations filed reports that are now available on the U.N. website, no such report is available from the Marshall Islands. For a list of the current reports, see 2015 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations www.un.org/disarmament/WMD/Nuclear/NPT2015/PrepCom2014/documents.shtml (last visited Feb. 16, 2016) [hereinafter 2015 Review Conference].

362015 Review Conference, supra note 35 (“At the 2015 NPT Review Conference, States parties examined the implementation of the Treaty’s provisions since 2010. Despite intensive consultations, the Conference was not able to reach agreement on the substantive part of the draft Final Document.”).

37Conca, supra note 8 (“Presently, there are nine nuclear weapons states with about 10,000 weapons, down dramatically from the 100,000 at the height of the Cold War: Russia: 5,000; U.S.: 4,400; France: 290; China: 240; U.K.: 195; Israel: 80; Pakistan: 200; India: 150; DPRK: ~ 6.”).

38A further case for American compliance with NPT Article VI—prior to the Clinton administration, the NPT was periodically renewed at each Review Conference. See Miles A. Pomper, Previewing the 2010 Nuclear Non-Proliferation Treaty Review Conference, in The Nuclear Non-Proliferation Treaty and India 51–52 (Rajiv Nayan ed., 2012). The NPT was renewed indefinitely as a result of the Clinton administration’s leadership. Id.

39See Davis, Hurting More than Helping, supra note 3, at 88.

40See Press Release No. 2014/18, supra note 10.In accordance with Article 38, paragraph 5, of the Rules of Court, the Applications of the Republic of the Marshall Islands have been transmitted to the six Governments concerned [China, the Democratic People’s Republic of Korea, France, Israel, the Russian Federation and the United States]. Unless and until consent is given to the Court’s jurisdiction, there is no case to be entered in the General List.Id.

41See Davis, Hurting More than Helping, supra note 3, at 106–07.

42See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 292 (June 27); Johan D. van der Vyver, Implementation of International Law in the United States 133 –34 (2010).

43See Optional Protocol Concerning the Compulsory Settlement of Disputes, Apr. 24, 1963, 21 U.S.T. 324, 596 U.N.T.S. 487; Avena and Other Mexican Nationals (Mexico v. U.S.), Judgment, 2004 I.C.J. Rep. 128, ¶ 153 (Mar. 31); Letter from Condoleezza Rice, U.S. Secretary of State, to Kofi Annan, U.N. Secretary General (Mar. 7, 2005), http://www.state.gov/documents/organization/87288.pdf.

44See van der Vyver, supra note 42, at 129–30.

45See Press Release No. 2014/18, supra note 10.

46The French Minister of Foreign Affairs submitted a letter to the United Nations Secretary-General on January 10, 1974, withdrawing French acceptance of the ICJ’s compulsory jurisdiction. See Nuclear Tests (N.Z. v. Fr.), Memorial of France, at 2 (Dec. 22, 1974), http://www.amun.org/final/03/ICJ_France_Memorial.pdf.

47See Texts Governing the Jurisdiction of the Court, 1946–1947 I.C.J. Y.B. No. 1, at 218 n.1 (noting that China submitted to the ICJ’s jurisdiction for a period of five years but did not renew at the end of the period); Statute of the International Court of Justice: A Commentary 676 (Andreas Zimmerman et al. eds., 2d ed. 2012) (noting that Russia never submitted to the compulsory jurisdiction of the ICJ and noting incorrectly that China never accepted the ICJ’s jurisdiction); see also Davis, Hurting More than Helping, supra note 3, at 104 (detailing China’s acceptance and withdrawal of the Optional Clause).

48See Declarations Recognizing the Jurisdiction of the Court as Compulsory, Int’l Ct. Just., http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3 (last visited Jan. 25, 2016) (not listing North Korea and Israel as countries recognizing the ICJ’s compulsory jurisdiction).

49Stanimir A. Alexandrov, The Compulsory Jurisdiction of the International Court of Justice: How Compulsory Is It?, 5 Chinese J. Int’l L. 29, 31 (2006).

50See Davis, Hurting More than Helping, supra note 3, at 115.

51See id. at 115–16.

52Id. at 82.

53See id. at 80–81, 115–16.

54See van der Vyver, supra note 42, at 11–30 (discussing instances in which the United States declined or refused to implement international law).

55See In the Courts, Nuclear Zero, http://www.nuclearzero.org/in-the-courts (last visited Jan. 31, 2016) (only mentioning filings before the ICJ and U.S. federal court); Lucy Westcott, Marshall Islands Nuclear Lawsuit Reopens Old Wounds, Newsweek (Aug. 1, 2014, 10:01 AM), http://www.newsweek.com/marshall-islands-nuclear-lawsuit-reopens-old-wounds-262491.

56See generally Complaint, supra note 1.

57See infra Part II.B.3 (noting that the Marshall Islands finally proposes the prospect of being granted only declaratory relief).

58See infra Part II.B.

59See Posner, supra note 26, at 86 (noting that modern treaties are notably vague, and therefore difficult to enforce with any specificity).

609th Cir. R. 36-3(a) (“Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.”).

61See generally Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015).

62Complaint, supra note 1, at 1.

63 Id. at 6.

64See generally Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

65See infra Part III.

66Notice of Motion to Dismiss at ii, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. July 21, 2014) (No. 14-CV-01885-JSW).

67Opposition to Motion to Dismiss at 12, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. Aug. 21, 2014) (No. 14-CV-01885-JSW).

68Reply Memorandum in Support of Motion to Dismiss at 6–7, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. Sept. 8, 2014) (No. 14-CV-01885-JSW). The Ninth Circuit held that one pertinent statute was within the exclusive jurisdiction of the U.S. Court of International Trade, and that the circuit court could not enforce a statute that would require the court to “compel the Secretary of State to initiate negotiations with foreign nations on the protection of sea turtles [] [b]ecause ‘the Constitution plainly grants the President the initiative in matters directly involved in the conduct of diplomatic affairs.’” Earth Island Inst. v. Christopher, 6 F.3d 648, 653 (9th Cir. 1993).

69Opposition to Motion to Dismiss, supra note 67, at viii, 8.

70Zivotofsky ex rel Zivotofsky v. Clinton, 132 S. Ct. 1421 (2012). Specifically, the federal statute at issue required the Secretary of State to note American citizens’ birthplaces on passports and Consular Reports of Birth Abroad. Id. at 1423.

71Opposition to Motion to Dismiss, supra note 67, at viii, 4–8.

72Id. (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)).

73Japan Whaling, 478 U.S. at 222.

74Opposition to Motion to Dismiss, supra note 67, at viii, 13–14. The Marshall Islands asserted that the United States did not meet its burden to prove that the suit was untimely. Id. at 14–15.

75See Reply Memorandum in Support of Motion to Dismiss, supra note 68.

76Id. at 1.

77Id.

78Id. at 1–2.

79Id. at 1, 5–6.

80Id. at 1, 10.

81Reply Memorandum in Support of Motion to Dismiss, supra note 68, at 1, 14.

82Id. at 1, 13.

83See Opposition to Motion to Dismiss, supra note 67; Reply Memorandum in Support of Motion to Dismiss, supra note 68; Brief for Tri-Valley CAREs as Amicus Curiae in Support of Venue in the Northern District, Republic of the Marshall Islands v. United States 79 F. Supp. 3d 1068 (N.D. Cal. Oct. 8, 2014) (No. 14-CV-01885-JSW); Brief for Nuclear Watch New Mexico in Support of Plaintiff and in Opposition to Defendants’ Motion to Dismiss, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. Oct. 6, 2014) (No. 14-CV-01885-JSW).

84See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015); Opposition to Motion to Dismiss, supra note 67; Reply Memorandum in Support of Motion to Dismiss supra note 68.

85See Notice of Tentative Ruling and Questions at 1, Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 14-CV-01885-JSW).

86Id. at 1–2.

87Id. at 2.

88See Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

89Id. at 1072.

90While making no pronouncement, the court quoted the U.S. Senate report that accompanied the advice and consent ratification. See id. at 1070. That report articulated the core purpose of the treaty as slowing, not stopping, the spread of nuclear weapons, doing so through prohibiting weapon states from transferring weapons and prohibiting non-weapon states from any path of obtaining nuclear weapons. Id. If this part of the order were construed as a full articulation of American NPT obligations, the Marshall Islands’ current arguments would be negated.

91See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015) (No. 14-CV-01885-JSW), appeal docketed, No. 15-15636 (9th Cir. Apr. 2, 2015).

92Brief of Appellant, Republic of the Marshall Islands v. United States, No. 1:15-cv-15363 (9th Cir. July 13, 2015); Brief of Appellee, Republic of the Marshall Islands v. United States, No. 1:15-cv-15363 (9th Cir. Oct. 28, 2015); Reply Brief of Appellant, Republic of the Marshall Islands v. United States, No. 1:15-cv-15363 (9th Cir. Dec. 15, 2015).

93See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Baker v. Carr, 369 U.S. 186, 217 (1962). See generally Medellín v. Texas, 552 U.S. 491 (2008).

94Lujan, 504 U.S. at 560.

95Id. at 560–61 (internal citation and quotation marks omitted).

96Baker, 369 U.S. at 211 (“[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”).

97Id. at 217.

98See Bradley, supra note 4, at 48 (“The Court appeared to reject the argument that . . . a non-self-executing treaty merely fails to provide a right of action. . . . On the other hand, the opinion also contains statements that equate non-self-execution simply with lack of judicial enforceability, and the Court’s test for self-execution appears to focus on whether a treaty is a ‘directive to domestic courts,’ not whether it has the status of domestic law.”). Contra van der Vyver, supra note 42, at 146 (“The judgment of the U.S. Supreme Court in Medellín v. Texas (and in Sanchez-Llamas) will not go down in history as the acme of judicial excellence.”).

99Brief of Appellant, supra note 92, at 1–3.

100Id. at 3 (emphasis added).

1019th Cir. R. 36-3 (“Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.”).

102See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068 (N.D. Cal. 2015).

103Brief of Appellant, supra note 92, at 1–2.

104Id. (internal citation omitted).

105See supra Part II.A.4. The Marshall Islands’ injury in fact questions were: “a. Is denial of the Marshall Islands’ entitlement to the Executive’s participation in disarmament negotiations a sufficient injury-in-fact for Article III standing? b. Is a measurable increase in current risk from nuclear weapons vertical proliferation a sufficient injury-in-fact for Article III standing?” Brief of Appellant, supra note 92, at 2–3 (internal citation omitted).

106Brief of Appellant, supra note 92, at 2–3 (internal citation omitted). The alternative questions were:b. [W]ould compelling the Executive to participate in NPT Article VI negotiations provide a sufficient incremental step to redress the second injury the Marshall Islands pleaded, which is the grave, real, and increased risk from vertical nuclear proliferation? c. Do absent parties preclude incremental relief to the Marshall Islands, where the Executive has never named an essential, absent party and the Marshall Islands disputes that there are absent, essential parties for the claims it pleaded? d. If the NPT is valid, does a court possess the authority to order Executive compliance with Article VI?Id.

107See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

108Brief of Appellee, supra note 92, at 12–29 (citing Lujan, 504 U.S. at 560).

109Id. at 54–57.

110Id. at 29–30, 40, 44 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)).

111Id. at 37.

112Id. at 38.

113Id. at 29–30 (quoting Baker, 369 U.S. at 217).

114Id. at 48.

115Id. at 54–57.

116Id. at 56 (“[P]laintiff’s claims are nonjusticiable because plaintiff lacks Article III standing and its claims present a political question.”).

117See generally Reply Brief of Appellee, supra note 92.

118Id. at 2.

119Id. at 3.

120See Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI (“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith . . . on a treaty on general and complete disarmament under strict and effective international control.”); Davis, Hurting More than Helping, supra note 3, at 84 (“The fuzzy language of Article VI, however, creates an uphill battle delineating compliance and non-compliance.”).

121See Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI.

122Reply Brief of Appellant, supra note 92, at 23 (quoting 28 U.S.C. § 2201).

123Id.

124See Treaty on the Non-Proliferation of Nuclear Weapons, supra note 9, art. VI.

125Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1072 (N.D. Cal. 2015).

126Reply Memorandum in Support of Motion to Dismiss, supra note 68, at 7 (citing cases regarding political question from the D.C. Circuit, the Eastern District of Pennsylvania, and the District Court for the District of Columbia, and citing a single non-binding district case denying an actionable claim under the Declaratory Judgment Act).

127Complaint, supra note 1, at 1–2 (“[I]t is in no way novel for the U.S. federal courts to interpret a treaty and/or to find a treaty violation.”).

128See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992); Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

129That is, short of a subsequent U.S. Supreme Court appeal, grant of writ, and opinion in the case at hand.

130See Notice of Motion to Dismiss, supra note 66. Notably, Judge White did not address venue in his order granting the motion. See generally Republic of the Marshall Islands, 79 F. Supp. 3d 1068.

131Lujan, 504 U.S. at 560–61. Traceable injury is presumed, given that an established treaty would always be in play.

13228 U.S.C. § 2201 (emphasis added).

133Id.

134Reply Memorandum Supporting Motion to Dismiss, supra note 68, at 10 n.3 (citing Bisson v. Bank of Am., 919 F. Supp. 2d 1130, 1139 (W.D. Wash. 2013)).

135MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 136 (2007).The Declaratory Judgment Act provides that a court “may declare the rights and other legal relations of any interested party,” 28 U.S.C. § 2201(a) (emphasis added), not that it must do so. This text has long been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants.Id.

136Id.

137Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1072 (N.D. Cal. 2015) (emphasis added).

138See infra Part III.B.

139See Republic of the Marshall Islands, 79 F. Supp. 3d at 1074 (emphasis added).

140Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012).

141See generally Baker v. Carr, 369 U.S. 186 (1962).

142Id. at 211.

143See, e.g., Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, 552 U.S. 491 (2008).

144See, e.g., Sanchez-Llamas, 548 U.S. 331; Medellín, 552 U.S. 491.

145Hathaway et al., supra note 7, at 87–89 (recalling the history of interpretive enforcement of international law in federal courts). In the case at hand, it is worth acknowledging the Government’s argument that, specific to this nuclear-scale case, judicial involvement may be dangerous:[D]etermining whether the United States is currently in breach of its treaty obligations would require a court to question the propriety of long-term negotiation strategies and choices that have already been made and may take time to bear fruit. Judicial intervention into these sensitive political decisions could have unanticipated consequences for ongoing negotiations of which plaintiff and the court are necessarily unaware.Brief for Appellee, supra note 92, at 45–46.

146See, e.g., Sanchez-Llamas, 548 U.S. 331; Medellín, 552 U.S. 491.

147Hathaway et al., supra note 7, at 87–89.

148See infra Part III.C.

149Brief for Appellee, supra note 92, at 29–46.

150Jared P. Cole, Congressional Research Service, R43834, The Political Question Doctrine: Justiciability and the Separation of Powers 2 (2014), https://www.fas.org/sgp/crs/misc/R43834.pdf.

151Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427 (2012).

152Id. (quoting Cohens v. Virginia, 6 Wheat. 264, 404 (1821)).

153Id. (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)) (internal quotation marks omitted).

154Id.

155Medellín v. Texas, 552 U.S. 491, 509 (2008).

156See Bradley, supra note 4, at 46–48.

157Zivotofsky, 132 S. Ct. at 1427.

158See supra Part II.

159Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2094 (2015).

160Id.

161See Bradley, supra note 4, at 46–48.

162See Opposition to the Motion to Dismiss, supra note 67, at viii, 8–12; Reply Memorandum in Support of Motion to Dismiss, supra note 68, at 10; Hathaway et al., supra note 7, at 89 (“Interpretive enforcement may extend to non-self-executing treaties as well as self-executing treaties.”).

163See William J. Carter, Jr., Treaties as Law and the Rule of Law: The Judicial Power to Compel Domestic Treaty Implementation, 69 Md. L. Rev. 344, 346 (2010). Carter takes the matter beyond interpretation, reaching non-self-executing treaty enforcement: “even non-self-executing treaties are amenable to domestic judicial enforcement in a manner consistent with both separation of powers principles and the rule of law.” Id.

164See Republic of the Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1078 n.2 (N.D. Cal. 2015) (“[A] private right of action is irrelevant.”).

165See id.

166See id. (emphasis added).

167Medellín v. Texas, 552 U.S. 491, 514 (2008).

168See generally id. (Roberts, C.J., for the majority; Stevens, J., concurring in judgment; Breyer, J., with Souter, J., and Ginsburg, J., dissenting).

169Medellín did not create the self-executing distinction, only brought it back to the forefront of jurists’ minds. See id. at 504–05. Chief Justice Roberts’ opinion cited decisions as old as 1829 that made similar distinctions. Id. (citing , , ).

170Id. at 505 n.2 (emphasis added).

171“But not all international law obligations automatically constitute binding federal law enforceable in United States courts.” Id. at 504 (emphasis added). “When, in contrast, ‘[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.’” Id. at 505 (quoting ) (emphasis added).

172Hathaway et al., supra note 7, at 89 (citing Khan v. Holder, 584 F.3d 773, 783 (9th Cir. 2009)).

173Medellín, 552 U.S. at 506 n.3 (citing Restatement (Third) of Foreign Relations Law of the United States § 907, cmt. a (1986)).

174See id.

175Brief of Appellant, supra note 92, at 3.

176See MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–27 (2007). “The federal Declaratory Judgment Act was signed into law the following year, and we upheld its constitutionality in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937). Our opinion explained that the phrase ‘case of actual controversy’ in the Act refers to the type of ‘Cases’ and ‘Controversies’ that are justiciable under Article III.” Id. (internal citations omitted).

177Medellín, 552 U.S. at 514 (“Given our obligation to interpret treaty provisions to determine whether they are self-executing.”).

178See Bradley, supra note 4, at 44–49; supra Part I.B. Ironically, this strategy is being tested for modern utility on one hot-button issue of international law where the United States is in as much compliance as anyone could realistically expect. See supra Part I.A.

179See Davis, I, Too, Sing America, supra note 2, at 123 (highlighting seeming exceptionalism as a benign function of federalism); see also Bradley, supra note 4, at 58–62. Making insular matters worse, American scholars hardly even engage in comparative analysis. See Davis, I, Too, Sing America, supra note 2, at 123 n.7. For an applicable sentiment broader than public international law, see Anne-Marie Slaughter, Unexceptionalism, Atlantic (Nov. 2007), http://www.theatlantic.com/magazine/archive/2007/11/unexceptionalism/306306/.

180One jurist observed a “broad popular sentiment that the land of Jefferson and Lincoln has nothing to learn about rights from any other country.” Anne-Marie Slaughter, A Brave New Judicial World, in American Exceptionalism and Human Rights 277 (Michael Ignatieff ed., 2005).

181See generally Posner, supra note 26 (discussing the efficacy of treaties); Oona A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States, 117 Yale L.J. 1236 (2008) (describing ending the treaty process as “charting a course toward ending the Treaty Clause for all but a handful of international agreements”).