Republic of the Marshall Islands v. United States

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REPUBLIC OF THE MARSHALL No. 15-15636
ISLANDS, a non-nuclear-weapon
State party to the Treaty on the Non D.C. No.
Proliferation of Nuclear Weapons, 4:14-cv-01885-
Plaintiff-Appellant, JSW

v.
OPINION
UNITED STATES OF AMERICA;
DONALD J. TRUMP, The President of
the United States of America;
DEPARTMENT OF DEFENSE; JAMES
MATTIS, Secretary, Department of
Defense; DEPARTMENT OF ENERGY;
RICK PERRY, Secretary, Department
of Energy; NATIONAL NUCLEAR
SECURITY ADMINISTRATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

Argued and Submitted March 15, 2017
San Francisco, California

Filed July 31, 2017
2 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

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

Opinion by Judge McKeown

SUMMARY **

Marshall Islands / Treaties

The panel affirmed the district court’s dismissal of a suit
brought by the Republic of the Marshall Islands seeking a
declaration that the United States was in breach of its treaty
obligations under Article VI of the Treaty on the Non-
Proliferation of Nuclear Weapons, and asking the court to
order that the United States engage in good-faith
negotiations.

The panel held that Article VI was non-self-executing.
The panel further held that because non-self-executing treaty
provisions were not judicially enforceable, claims seeking to
enforce them were nonjusticiable.

The panel held that the Marshall Islands’ asserted
injuries were not redressable because Article VI could not be
enforced in federal court. The panel also found that the

*
The Honorable Susan Oki Mollway, United States District Judge
for the District of Hawaii, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 3

Marshall Islands’ claims presented inextricable political
questions that were nonjusticiable and must be dismissed.

COUNSEL

Laurie B. Ashton (argued) and Alison Chase, Keller
Rohrback LLP, Phoenix, Arizona; Juli E. Farris and Lynn
Lincoln Sarko, Keller Rohrback LLP, Seattle, Washington;
for Plaintiff-Appellant.

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

Scott Yundt, Livermore, California, as and for Amicus
Curiae Tri-Valley Communities Against a Radioactive
Environment.

Henry M. Willis, Schwartz Steinsapir Dohrmann &
Sommers LLP, Los Angeles, California; Margot Nikitas,
Staff Attorney; Joseph Cohen, General Counsel; United
Electrical, Radio and Machine Workers of America,
Pittsburgh, Pennsylvania; for Amici Curiae United
Electrical, Radio and Machine Workers of America (UE),
International Commission for Labor Rights, and Labor and
Employment Committee of the National Lawyers Guild.

Janet Benshoof, New York, New York, as and for Amicus
Curiae Global Justice Center.

Randy Baker, Seattle, Washington; Anabel Dwyer,
Elizabeth Shafer, and John Burroughs, Lawyers Committee
on Nuclear Policy, New York, New York, for Amicus Curiae
Lawyers Committee on Nuclear Policy.
4 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

Daniel U. Smith, Smith & McGinty, San Francisco,
California, for Amici Curiae Physicians for Social
Responsibility, International Physicians for the Prevention
of Nuclear War, and Pax Christi International.

Andrea R. St. Julian, San Diego, California, for Amici
Curiae Hans M. Kristensen, Robert Alvarez, Dr. James E.
Doyle, and Nuclear Watch New Mexico.

OPINION

McKEOWN, Circuit Judge:

Not all treaties are created equal in terms of
enforceability. Although the Supremacy Clause guarantees
that “all Treaties . . . shall be the supreme Law of the Land,”
U.S. Const. art. VI, cl. 2, paradoxically not every treaty
provision is enforceable in our domestic courts. Article VI
of the Treaty on the Non-Proliferation of Nuclear Weapons
(the “Treaty” or the “Non-Proliferation Treaty”) is one such
provision: it calls on each party to the Treaty “to pursue
negotiations in good faith on effective measures” to end the
nuclear arms race and accomplish nuclear disarmament. 1

Armed with Article VI, one of the treaty parties, the
Republic of the Marshall Islands, filed suit, asking the
federal court to declare the United States in breach of its
treaty obligations and to order the United States to engage in
good-faith negotiations. These claims are nonjusticiable—
Article VI is not directly enforceable in federal court, the

1
Treaty on the Non-Proliferation of Nuclear Weapons art. VI,
opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161.
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 5

Marshall Islands’ asserted injuries are not redressable, and
the claims raise nonjusticiable political questions.

At bottom, the suit is doomed because diplomatic
negotiations among parties to this Treaty fall
quintessentially within the realm of the executive, not the
judiciary. Parleying a halt to the nuclear arms race and
achieving nuclear disarmament involve decision-making
delegated to the political branches. We affirm the district
court’s dismissal of the complaint. Asking the federal court
to order the United States to negotiate in “good faith” on
“effective measures” for nuclear disarmament puts the
judiciary in the role of nanny to the executive. Under our
system of separation of powers, the federal court cannot give
the Marshall Islands the judicial relief it seeks.

BACKGROUND

The Non-Proliferation Treaty entered into force in 1970.
After President Johnson signed and the Senate gave its
consent, President Nixon ratified the Treaty for the United
States. The Marshall Islands acceded to the Treaty in 1995.
Over 180 states are now parties.

To promote the Treaty’s goal of nuclear disarmament,
Article VI provides that “[e]ach of the Parties to the Treaty
undertakes to pursue negotiations in good faith on effective
measures relating to cessation of the nuclear arms race at an
early date and to nuclear disarmament, and on a treaty on
general and complete disarmament under strict and effective
international control.” Although the Treaty includes no
mechanism to address alleged breaches, the United States
acknowledges that the Treaty “is a legally binding
instrument under international law” and that breach “may
give rise to international legal remedies.”
6 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

In April 2014, the Marshall Islands sued the United
States in federal district court, seeking declaratory and
injunctive relief and claiming that the United States breached
Article VI by failing to pursue good-faith negotiations. The
genesis for this action is what the Marshall Islands describes
as “the grim legacy of the United States nuclear weapons
program,” including the detonation of sixty-seven nuclear
weapons in the Marshall Islands that resulted in “horrific and
multi-generational consequences from nuclear
proliferation.”

In Count 1, the Marshall Islands requested a declaration
that Article VI imposes obligations on the United States to:

(1) “pursue negotiations in good faith on
effective measures relating to cessation of
the nuclear arms race at an early date and
to nuclear disarmament”; and

(2) “bring to a conclusion negotiations
leading to nuclear disarmament in all its
aspects under strict and effective
control.”

In Count 2, the Marshall Islands requested a declaration
that the United States is “in continuing breach” of its Article
VI obligation to “pursue negotiations in good faith on
effective measures relating to cessation of the nuclear arms
race at an early date” and “to nuclear disarmament.”

The Marshall Islands sought to force the United States—
“within one year” following entry of the requested
declaratory judgment—to “take all steps necessary” to
comply with its Article VI obligations, “including by calling
for and convening negotiations for nuclear disarmament in
all its aspects.”
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 7

The district court granted the United States’ motion to
dismiss on two grounds. The court concluded that the
Marshall Islands lacked standing because the court had no
power to bind other state parties not before the court and the
asserted injury “cannot be redressed by compelling the
specific performance by only one nation to the Treaty.”
Republic of the Marshall Islands v. United States, 79 F.
Supp. 3d 1068, 1072 (N.D. Cal. 2015). The court also found
that the case raised nonjusticiable political questions. Id. at
1073–74. Although the United States also argued that
Article VI is not self-executing and therefore not directly
enforceable in domestic courts, the district court said that
this issue was “irrelevant to the enforcement by a state-party
that is a signatory to the Treaty.” Id. at 1074 n.2.

ANALYSIS

This is not your average treaty case. Unlike the typical
treaty-enforcement actions brought by private individuals,
this case involves one state party seeking to enforce its treaty
rights in the domestic court of another state party. This
unorthodox effort fails because the claims are nonjusticiable.

Whether examined under the rubric of treaty self-
execution, the redressability prong of standing, or the
political question doctrine, the analysis stems from the same
separation-of-powers principle—enforcement of this treaty
provision is not committed to the judicial branch. Although
these are distinct doctrines for addressing treaty
enforcement, there is significant overlap. For example,
considerations applicable to self-execution, such as whether
the judiciary is the appropriate branch for direct
enforcement, also play out in the standing and political
question analysis. See Ann Woolhandler, Treaties, Self-
Execution, and the Public Law Litigation Model, 42 Va. J.
Int’l L. 757, 761 (2002) (noting “the problems of
8 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

distinguishing among the doctrines of non-self-execution,
standing, and political question in the treaty context” but
concluding that all three “address some aspect of whether
there exists either a judicially cognizable injury on the part
of the plaintiff or a judicially cognizable duty on the part of
the defendant”). As the Supreme Court explained long ago,
a treaty will often “depend[] for the enforcement of its
provisions on the interest and the honor of governments
which are parties to it.” Head Money Cases, 112 U.S. 580,
598 (1884). If a state party breaches a non-self-executing
treaty provision, “its infraction becomes the subject of
international negotiations and reclamations,” and “the
judicial courts have nothing to do and can give no redress.”
Id.

I. Self-Executing Treaties

A. The Doctrine of Self-Execution

Much ink has been spilled on the question of treaty self-
execution, 2 which has been called “one of the most
confounding in treaty law.” United States v. Postal,
589 F.2d 862, 876 (5th Cir. 1979). In simple terms, a self-
executing treaty is one that is judicially enforceable upon
ratification. In contrast, a non-self-executing treaty requires
congressional action via implementing legislation or, in
some cases, is addressed to the executive branch.

2
E.g., Al-Bihani v. Obama, 619 F.3d 1, 9–53 (D.C. Cir. 2010)
(Kavanaugh, J., concurring in the denial of reh’g en banc) (providing
extensive review on the implications of self-execution); Oona A.
Hathaway et al., International Law at Home: Enforcing Treaties in U.S.
Courts, 37 Yale J. Int’l L. 51, 51–52 (2012) (remarking that the self-
execution question is a “deep puzzle” that is “[o]ne of the great
challenges for scholars, judges, and practitioners alike”).
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 9

Nearly a decade ago, the Supreme Court finally brought
some clarity to this issue in Medellín v. Texas, noting that
the “Court has long recognized the distinction between
treaties that automatically have effect as domestic law, and
those that—while they constitute international law
commitments—do not by themselves function as binding
federal law” enforceable in domestic courts. 552 U.S. 491,
504 (2008); see also Bond v. United States, 134 S. Ct. 2077,
2084 (2014) (recognizing that the Convention on Chemical
Weapons “creates obligations only for State Parties and
‘does not by itself give rise to domestically enforceable
federal law’” (quoting Medellín, 552 U.S. at 505 n.2)).

The Supremacy Clause establishes the legal status of all
treaties: they are the supreme law of the land, on equal
footing with the Constitution and federal statutes. See U.S.
Const. art. VI, cl. 2. But this elevated status does not answer
the question whether a treaty may be enforced in domestic
courts. See United States v. Alvarez-Machain, 504 U.S. 655,
667 (1992). Indeed, “[t]he key is to recognize that the
question whether a treaty is supreme law is separate from the
question whether its provisions create a rule of decision
(meaning a rule capable of resolving disputes) for U.S.
Courts.” Michael D. Ramsey, A Textual Approach to Treaty
Non-Self-Execution, 2015 BYU L. Rev. 1639, 1648 (2016).
The Marshall Islands conflates these two issues, arguing that
“precedent confirms it ‘is emphatically the duty’ of the
federal courts to interpret the [Treaty], and, because it is a
valid law, the Executive ‘must’ be ordered to comply with
it.” This approach skims over the fundamental and threshold
inquiry of whether the Treaty is self-executing.

The very idea of non-self-execution might at first seem
inimical to both Article III and the Supremacy Clause, which
unite to extend “[t]he judicial Power . . . to all Cases . . .
10 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

arising under . . . Treaties,” U.S. Const. art. III, § 2, cl. 1, and
to make “all Treaties . . . the supreme Law of the Land,” id.
art. VI, cl. 2. “[B]ut the power to enforce the law of the land
was constitutionally allocated to the courts only in ‘cases of
a Judiciary nature.’” Carlos Manuel Vázquez, The Four
Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695,
713 (1995) (quoting 2 Records of the Federal Convention of
1787, at 430 (Max Farrand ed., rev. ed. 1966)) (emphasis
added). Claims seeking to enforce non-self-executing
treaties are thus nonjusticiable precisely because their
resolution would exceed the court’s “judicial Power.” See
U.S. Const. art. III, § 1.

At its core, the question of self-execution addresses
whether a treaty provision is directly enforceable in domestic
courts. Cornejo v. Cty. of San Diego, 504 F.3d 853, 856 (9th
Cir. 2007); Restatement (Fourth) of the Foreign Relations
Law of the United States: Treaties § 110 cmt. b (Am. Law
Inst., Tentative Draft No. 2, 2017) (draft approved at Annual
Meeting on May 22, 2017) (“Restatement”) (“When a treaty
provision is invoked as a rule of decision in a judicial
proceeding, the self-execution inquiry focuses on whether
the provision is directly enforceable in court.”). When
courts are asked to enforce a treaty provision, they must
determine whether the provision “addresses itself to the
political, not the judicial department.” Foster v. Neilson,
27 U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.), overruled
on other grounds by United States v. Percheman, 32 U.S.
(7 Pet.) 51 (1833). Only if the provision serves as a
“directive to domestic courts” may the judiciary enter the
fray to enforce it. Medellín, 552 U.S. at 508. By contrast,
“[a] treaty that is not self-executing . . . is not enforceable in
the courts at the behest of anyone, presumably including
other nations.” Carlos Manuel Vázquez, Laughing at
Treaties, 99 Colum. L. Rev. 2154, 2179 n.96 (1999).
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 11

Because non-self-executing treaty provisions are not
judicially enforceable, claims seeking to enforce them are
nonjusticiable.

B. Article VI is Non-Self-Executing

“The interpretation of a treaty, like the interpretation of
a statute, begins with its text.” Medellín, 552 U.S. at 506.
We may also look to “the negotiation and drafting history of
the treaty as well as ‘the postratification understanding’ of
signatory nations” as “aids to . . . interpretation.” Id. at 507
(citation omitted). This text-focused approach helps answer
the ultimate self-execution question: whether the treaty
provision is directly enforceable in domestic courts.

Various textual considerations guide our inquiry,
depending on the nature of the provision. Apart from the
Supreme Court’s reference to “aids to . . . interpretation,”
there is no laundry list of factors to consider. See id. (citation
omitted). Rather, courts have gleaned interpretive clues
from the text and context of treaties. See Air France v. Saks,
470 U.S. 392, 397 (1985) (examining “the context in which
the written words are used” when construing a treaty). In
addition, the recently adopted Restatement lays out “relevant
considerations” for evaluation. 3

Some treaties reveal their self-execution by expressly
calling for direct judicial enforcement. The Warsaw
Convention, which addresses international air travel,
provides a well-recognized example. See Convention for the

3
Those considerations include “(a) whether the treaty provision is
sufficiently precise or obligatory to be suitable for direct application by
the judiciary, and (b) whether the provision was designed to have
immediate effect, as opposed to contemplating additional measures by
the political branches.” Restatement § 110(2).
12 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

Unification of Certain Rules Relating to International
Carriage by Air art. 28, opened for signature Oct. 12, 1929,
49 Stat. 3000, 137 L.N.T.S. 11 (specifying how and where
an “action for damages” may be brought against air carriers).
Because self-execution is not always so explicit, we also
assess whether the treaty’s text indicates that the provision
would have immediate effect or instead anticipates future
action by a political branch. See Doe v. Holder, 763 F.3d
251, 255 (2d Cir. 2014). Future-oriented provisions are
often non-self-executing because they require another
branch to take action within its discretion to implement or
honor the treaty obligation. See, e.g., Sanjaa v. Sessions, –
F.3d –, – (9th Cir. 2017); Diggs v. Richardson, 555 F.2d 848,
851 (D.C. Cir. 1976). 4 Another consideration is whether the

4
Although courts often frame this analysis as concerning future
legislative steps by Congress, this approach is equally applicable to
impending executive action by the President or the agencies charged with
fulfilling a treaty’s objectives. See Ware v. Hylton, 3 U.S. (3 Dall.) 199,
272–73 (1796) (Iredell, J.) (distinguishing among classes of treaty
provisions requiring “execution” by the legislative, executive, and
judicial branches). Despite the relative scarcity of cases implicating
executive action, there is widespread acknowledgement of this doctrinal
parity. See, e.g., Ramsey, supra, at 1653 (“Although non-self-execution
in this sense is often discussed in connection with directions to Congress,
treaty provisions also may be, and commonly are, addressed to the
executive branch.”); see also Curtis A. Bradley, Intent, Presumptions,
and Non-Self-Executing Treaties, 102 Am. J. Int’l L. 540, 542 (2008)
(“There is nothing new about treating future-oriented treaty language
that is directed generically at the states parties rather than at their courts
as suggestive of non-self-execution.”); David Sloss, Non-Self-Executing
Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1,
21 (2002) (explaining that a treaty provision is non-self-executing if it
“obligates a party to accomplish a result in the future, some time after
entry into force of the treaty”); Restatement § 110(1) (“Even when a
treaty provision is not self-executing, compliance with the provision may
be achieved through . . . legislative, executive, administrative, or other
action outside the courts.”).
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 13

treaty provision fails to provide a rule of decision for courts
because it contains indeterminate, vague, or aspirational
language. See Doe, 763 F.3d at 255. Lastly, we must be
wary of textual interpretations that would have the judiciary
exercise powers constitutionally assigned to another branch;
thus, we look for indications of the President’s and the
Senate’s intentions regarding self-execution. See Medellín,
552 U.S. at 517, 519, 521. To assist with this textual
analysis, we may look to evidence of how the treaty’s
enforceability was understood both before and after
ratification. Id. at 507.

Article VI has all the trappings of a non-self-executing
treaty provision. The Treaty’s text does not explicitly call
for direct judicial enforcement of Article VI, and nothing in
Article VI suggests that it “was designed to have immediate
effect” in domestic courts. See Restatement § 110(2). Under
Article VI, the United States “undertakes to pursue” future
negotiations on “effective measures” to end “the nuclear
arms race at an early date” and ultimately “on a treaty on
general and complete disarmament.” This provision is a
prime example of language that offers no “directive to
domestic courts” and instead calls for future action by a
political branch. See Medellín, 552 U.S. at 508.

Foremost, Article VI is addressed to the executive,
urging further steps only the executive can take—
negotiation with other nations. Even the Marshall Islands
appears to recognize as much, admitting that “[t]he text of
Article VI placed a legal obligation upon the Executive
running to” other Treaty parties. Article VI is also addressed
implicitly to the Senate because it calls for “a treaty on
general and complete disarmament,” which would, under the
Constitution, require both the President’s signature and the
Senate’s consent. See U.S. Const. art. II, § 2, cl. 2 (providing
14 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

that the President “shall have Power, by and with the Advice
and Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur”). In context, Article
VI’s use of the phrase “undertakes to pursue,” like the phrase
“undertakes to comply” in Medellín, is “a commitment on the
part of [the Treaty parties] to take future action through their
political branches.” See 552 U.S. at 508 (citation omitted).

Even if Article VI in some sense created an imminent
obligation to negotiate in good faith, the essential details of
the negotiations—their time, their place, their nature—was
unspecified upon ratification. Thus, the provision is “framed
as a promise of future action by the member nations.” Fujii
v. California, 242 P.2d 617, 622 (Cal. 1952). That Article
VI also calls for satisfactory results “at an early date”—
textbook “language of futurity,” see Robertson v. Gen. Elec.
Co., 32 F.2d 495, 500 (4th Cir. 1929)—only underscores that
it is a non-self-executing provision. See also Sloss, supra,
at 24 (“[I]f a treaty obligates the United States to take
unspecified steps toward achieving an agreed objective at an
unspecified future time . . . then action by the political
branches is necessary to execute the treaty.”).

Quite apart from Article VI’s prospective focus, the
provision’s indeterminate language does not provide a rule
of decision for courts. See Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 170 (1803) (Marshall, C.J.) (distinguishing
between rules of decision for courts and political questions
that involve the exercise of nonjudicial discretion). “[A]s
the Supreme Court explained in Medellín v. Texas, the
absence of mandatory language (i.e., ‘must’ or ‘shall’)
indicates that a particular provision is not a self-executing
directive.” United States v. Bahel, 662 F.3d 610, 629–30 (2d
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 15

Cir. 2011) (citation omitted). 5 In context, the state parties’
meek agreement that they “undertake[] to pursue” good-faith
negotiations is at most a hortatory directive, much like the
provision at issue in Medellín. See 552 U.S. at 500
(interpreting Article 94 of the United Nations Charter, which
provides that each state “undertakes to comply with the
decision[s]” of the International Court of Justice).

Article VI is also chock-full of vague terms that do not
“provide specific standards” for courts to apply. See Diggs,
555 F.2d at 851. For example, it calls for negotiations on
“effective measures” to cease the nuclear arms race and
achieve disarmament, yet what constitutes “effective” is in
the eyes of nuclear experts and negotiators. “[T]he use of
the nebulous term ‘effective’—which is never defined in the
treaty—further demonstrates that Article [VI] is not a
‘directive to domestic courts’ that ‘by itself give[s] rise to
domestically enforceable federal law.’” Sanjaa, – F.3d at –
(third alteration in original) (quoting Medellín, 552 U.S. at
505 n.2, 508). Although the Treaty’s goal of universal
nuclear disarmament may be clear, the path to achieving it is
perilously uncertain. See Carlos Manuel Vázquez, Four
Problems with the Draft Restatement’s Treatment of Treaty
Self-Execution, 2015 BYU L. Rev. 1747, 1750 (2016)
(pointing to “treaties that require parties to use their best

5
A provision that is “absolute and mandatory” is more likely self-
executing, Smith v. Canadian Pac. Airways, Ltd., 452 F.2d 798, 801 (2d
Cir. 1971), because there is no need for precise and obligatory treaty
language “to be supplemented by legislative or executive action,”
Commonwealth v. Hawes, 76 Ky. (13 Bush) 697, 702–03 (1878). But
when a treaty provision is “phrased in broad generalities,” Frolova v.
Union of Soviet Socialist Republics, 761 F.2d 370, 374 (7th Cir. 1985)
(per curiam), it often leaves the political branches with discretion that is
not the court’s to exercise.
16 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

efforts to accomplish certain goals” as examples of those
“too vague for judicial enforcement”).

Likewise, Article VI’s hopeful plea for successful
negotiations to culminate “at an early date” is not indicative
of self-execution. Nor is the Marshall Islands’ position
bolstered by the Treaty’s preamble, in which the state parties
“[d]eclar[e]” their “intention” to end the arms race “at the
earliest possible date” and to move “in the direction of
nuclear disarmament.” “Aspirational language is the
hallmark of a non-self-executing treaty . . . .” Doe, 763 F.3d
at 255. Article 34 of the Refugee Convention, for example,
provides that state parties “shall as far as possible facilitate
the assimilation and naturalization of refugees.” INS v.
Stevic, 467 U.S. 407, 417 (1984) (citation omitted). The
Supreme Court had no trouble concluding that this provision
was “precatory and not self-executing.” Id. at 429 n.22.6
The same can be said about Article VI. Indeed, the
provision’s wishful tenor reflects the reality of the Treaty

6
See also Igartúa-De La Rosa v. United States, 417 F.3d 145, 150
(1st Cir. 2005) (en banc) (explaining that treaties often “contain[] highly
general and ramifying statements” that are “merely aspirational and not
law in any sense”); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809
(D.C. Cir. 1984) (Bork, J., concurring) (explaining that Articles 1 and 2
of the U.N. Charter “contain general ‘purposes and principles,’ some of
which state mere aspirations and none of which can sensibly be thought
to have been intended to be judicially enforceable”); Michael P. Van
Alstine, The Judicial Power and Treaty Delegation, 90 Cal. L. Rev.
1263, 1273 (2002) (“Some non-self-executing treaties, for example, may
be merely precatory or otherwise too vague for judicial enforcement.”);
Vázquez, The Four Doctrines of Self-Executing Treaties, supra, at 712
(“‘Precatory’ treaty provisions are deemed judicially unenforceable . . .
because what the parties agreed to do is considered, in our system of
separated powers, a ‘political’ task not for the courts to perform.”).
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 17

itself: the state parties could agree only that they hoped to
usher in a nuclear-free future.

Article VI also has a key hallmark of non-self-execution
because the “consequences” of permitting enforcement by
domestic courts, especially in the manner urged by the
Marshall Islands, would implicate grave constitutional
concerns that should “give [us] pause.” See Medellín,
552 U.S. at 517. A provision cannot be judicially enforced
if doing so would compel the courts to assume a role
constitutionally assigned to the executive or the legislature. 7
There is perhaps nothing more prototypically political than
the negotiation of a multilateral international instrument.
Deciding when, where, and whether to negotiate with
foreign nations is within the exclusive authority of the
executive. See generally U.S. Const. art. II, §§ 2, 3
(assigning the President powers over foreign affairs).
Granting the Marshall Islands’ requested relief would
essentially appoint the district court as a Special Master
overseeing the United States’ nuclear treaty negotiations. To
construe Article VI as self-executing and approve the

7
See Restatement § 110(3) (“Courts will also regard a treaty
provision as non-self-executing to the extent that implementing
legislation is constitutionally required.”); Vázquez, Laughing at
Treaties, supra, at 2180 (“[P]erhaps a court could legitimately construe
the Constitution to place treaties concerning certain subjects—arms
control, for example—beyond the enforcement power of the courts.”);
Vázquez, The Four Doctrines of Self-Executing Treaties, supra, at 717
(“It may even be that certain treaties are not judicially enforceable under
our Constitution because they bear too closely on national security or are
otherwise too sensitive for judicial involvement. A claim that an arms
control agreement requires the United States to dismantle weapons, for
example, might be nonjusticiable on this ground even if the agreement is
neither precatory nor vague.”).
18 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

Marshall Islands’ claims would thus violate core separation-
of-powers principles.

Last but not least, nothing about Article VI suggests that
the President and the Senate intended it to be enforceable in
domestic courts. A “treaty that does not evince such
executory intentions is non-self-executing.” Cardenas v.
Stephens, 820 F.3d 197, 202 n.5 (5th Cir. 2016); see also
Medellín, 552 U.S. at 519, 521. Even if we look beyond the
text of Article VI itself, there is no hint that domestic
enforcement was envisioned. The Treaty’s preamble notes
the “intention” of the parties to accomplish nuclear
disarmament, towards which the “cooperation of all States”
is “[u]rg[ed].” But the Treaty is “silent as to any
enforcement mechanism” in the event of noncompliance.
See Medellín, 552 U.S. at 508. That silence is significant in
the context of this treaty and this lawsuit, not least because,
in the absence of a specific treaty directive, having states
open their domestic courts to other treaty parties would be
extraordinary. See Woolhandler, supra, at 765 (“[F]oreign
nations were generally unable to sue in United States courts
to enforce general treaty obligations. Indeed, they rarely if
ever tried.” (footnote omitted)); cf. The Schooner Exchange
v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812) (Marshall,
C.J.) (“One sovereign being in no respect amenable to
another; and being bound by obligations of the highest
character not to degrade the dignity of his nation, by placing
himself or its sovereign rights within the jurisdiction of
another . . . .”).

Preratification evidence confirms our interpretation of
the text. Although the parties have not enlightened us to any
specific intentions of President Johnson or President Nixon,
contemporaneous testimony tells us something about the
Senate’s views on the subject. Senator Fulbright, then-
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 19

Chairman of the Senate Foreign Relations Committee,
implied that the entire Treaty was unenforceable as he
exhorted his colleagues to give their consent during the
ratification debate. See 115 Cong. Rec. 6198, 6199–6200,
6204–05 (1969). When pressed on what might happen if the
United States breached the Treaty, he replied that, “since we
do not belong to a world of law but only of the jungle law,
the effect of [breach] would be the same as withdrawal” from
the Treaty “because nobody is going to be able to enforce the
[T]reaty against us.” Id. at 6199. He continued to reassure
his fellow senators: “A treaty may create certain obligations
in the mind of a foreign country, but domestically it does
not.” Id. at 6204. 8 Senator Fulbright’s testimony does not
“convey[] an intention” that either the Treaty generally, or
Article VI specifically, are self-executing or were “ratified
on these terms.” See Medellín, 552 U.S. at 505 (quoting
Igartúa-De La Rosa, 417 F.3d at 150).

The postratification history is consistent with these
contemporaneous comments on the Treaty. Following the
Treaty’s ratification, Congress explicitly provided that “[t]he
Secretary of State, under the direction of the President, shall
have primary responsibility for the preparation, conduct, and

8
Senator Fulbright’s colloquy with his colleague, Senator Tower,
continued in quite amusing terms. When Senator Tower pushed on
whether the Treaty would prevent the United States from acting in a
crisis to transfer nuclear weapons to an ally, Senator Fulbright again
placated him: “Then, we just violate the [T]reaty.” 115 Cong. Rec. at
6199. This led Senator Tower to ask whether Senator Fulbright “[wa]s
proposing that if we think it necessary, we should treat the [T]reaty as a
scrap of paper?” Id. Senator Fulbright conceded that he was. See id.
After further questioning, he concluded that the Treaty “does not impose
any real restrictions on the nuclear powers” like the United States. Id.
This dismissive view of the Treaty, which strongly supports the principle
that its provisions are non-self-executing, is, of course, legally incorrect
vis-à-vis the Supremacy Clause.
20 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

management of United States participation in all
international negotiations and implementation fora in the
field of arms control, nonproliferation, and disarmament.”
See 22 U.S.C. § 2574(a). “In furtherance of these
responsibilities,” Congress granted the President power to
appoint representatives to conferences and activities
“relat[ed] to the field of nonproliferation, such as the
preparations for and conduct of the review relating to the
Treaty on the Non-Proliferation of Nuclear Weapons.” Id.
In short, the political branches have worked hand in hand to
fulfill the United States’ obligations under Article VI—and
they have done so without giving the slightest hint that the
judiciary should play a Big Brother role by supervising
negotiations. That same legislation requires the President
and the Secretary of State to submit a report to Congress that
details the United States’ “adherence . . . to obligations
undertaken in arms control, nonproliferation, and
disarmament agreements” and “any ongoing . . .
negotiations.” 22 U.S.C. § 2593a(a)(2)–(3).

Similarly, ongoing Treaty review conferences have
given no indication that the United States or other state
parties contemplate any domestic enforcement mechanism
for alleged Article VI violations. In fact, state parties have
specifically indicated that “responses to concerns over
compliance with any obligation under the Treaty by any
State party should be pursued by diplomatic means.” 2010
Review Conference of the Parties to the Treaty on the Non-
Proliferation of Nuclear Weapons, Final Document, pt. I, p.
3 ¶ 7, available at https://www.nonproliferation.org/wp-
content/uploads/2015/04/2010_fd_part_i.pdf (emphasis
added). And in conjunction with a 1990 Treaty review
conference, the Senate agreed to a concurrent resolution to
reaffirm support for the Treaty’s objectives only after
Senator Boschwitz, the resolution’s sponsor, affirmed that
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 21

the Treaty “is not self-executing.” 136 Cong. Rec. 12,723
(1990). Although this congressional interpretation reflects
the view of only a single member of Congress, it accords
with the executive’s present position, to which we give
“great weight.” See Sumitomo Shoji Am., Inc. v. Avagliano,
457 U.S. 176, 184–85 (1982).

The Marshall Islands would have us ignore the self-
execution question entirely, asserting that it is “[i]rrelevant”
because Article VI creates “direct rights” that run from one
treaty party to another and does not “concern[] alleged third-
party treaty rights.” Standing alone, this statement is
partially true—the Treaty lays out obligations that run
between treaty parties. But this approach evades the
threshold issue of where and how these asserted “rights”—
direct or otherwise—may be enforced. Article VI, as a treaty
provision for which no domestic enforcement was explicitly
or implicitly contemplated, does not provide a basis for
justiciable claims in federal court. 9

II. Redressability

Having done the analytical heavy-lifting in addressing
Article VI’s status as a non-self-executing provision, we turn
briefly to a related reason that the Marshall Islands’ claims

9
We mention two issues that we need not address. First, though
some courts have observed “an emerging presumption against finding
treaties to be self-executing,” ESAB Grp., Inc. v. Zurich Ins. PLC,
685 F.3d 376, 387 (4th Cir. 2012), we express no view on such a
presumption here. Second, we note that the questions whether a treaty
provision is self-executing, creates private rights, or provides a private
right of action are distinct, see generally Hathaway, supra, at 56–57
(“disentangl[ing]” the three concepts); Medellín, 552 U.S. at 506 n.3
(distinguishing the issue of self-execution and private rights of action),
and we need answer only the first one here.
22 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

are nonjusticiable: under standing analysis, the asserted
injuries are not redressable. Like the concept of self-
execution, the standing requirement springs “[f]rom Article
III’s limitation of the judicial power to resolving ‘Cases’ and
‘Controversies,’ and the separation-of-powers principles
underlying that limitation.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1386 (2014). To
establish standing, a plaintiff must show injury in fact,
causation, and redressability. See id. Although the parties
and amici devote much attention to whether the Marshall
Islands established injury in fact, we need not go down that
road. Lack of redressability alone deprives the Marshall
Islands of standing.

Simply put, the asserted injuries are not redressable
because Article VI may not be enforced in federal court.
“Redressability requires an analysis of whether the court has
the power to right or to prevent the claimed injury.”
Gonzales v. Gorsuch, 688 F.2d 1263, 1267 (9th Cir. 1982)
(Kennedy, J.). Even assuming that the Marshall Islands has
suffered injury in fact, the federal courts have no power to
right or to prevent that injury. See id. When a state party
violates a non-self-executing treaty provision, “the judicial
courts have nothing to do and can give no redress.” Head
Money Cases, 112 U.S. at 598. 10

10
The Marshall Islands bemoans the district court’s failure to
analyze its claims for declaratory relief separately for standing purposes.
Because the Declaratory Judgment Act does not create new substantive
rights but instead “presupposes the existence of a judicially remediable
right,” invocation of the Act does not permit the Marshall Islands to
dodge the redressability question. See Schilling v. Rogers, 363 U.S. 666,
677 (1960); see also Igartúa-De La Rosa, 417 F.3d at 149 (denying
declaratory relief because treaty provisions were not self-executing).
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 23

III. Political Question Doctrine

As with self-execution and redressability in the context
of treaty enforcement, “[t]he nonjusticiability of a political
question is primarily a function of the separation of powers.”
Baker v. Carr, 369 U.S. 186, 210 (1962). The Marshall
Islands’ claims present inextricable political questions that
are nonjusticiable and must be dismissed. See Corrie v.
Caterpillar, Inc., 503 F.3d 974, 977 (9th Cir. 2007).

It is well settled that not all cases involving foreign
relations raise political questions. See Japan Whaling Ass’n
v. Am. Cetacean Soc’y, 478 U.S. 221, 229–30 (1986).
However, the Supreme Court has recognized that decisions
concerning foreign relations are often inherently political:
“Not only does resolution of such issues frequently turn on
standards that defy judicial application, or involve the
exercise of a discretion demonstrably committed to the
executive or legislature; but many such questions uniquely
demand single-voiced statement of the Government’s
views.” Baker, 369 U.S. at 211 (footnotes omitted). It
should be no surprise that the self-execution inquiry in treaty
cases will frequently track the analysis of whether the claims
raise political questions.

To determine if a particular claim raises a political
question, courts generally consider whether the claim
involves:

[1] a textually demonstrable constitutional
commitment of the issue to a coordinate
political department; or [2] a lack of
judicially discoverable and manageable
standards for resolving it; or [3] the
impossibility of deciding without an initial
policy determination of a kind clearly for
24 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

nonjudicial discretion; or [4] the
impossibility of a court’s undertaking
independent resolution without expressing
lack of the respect due coordinate branches of
government; or [5] an unusual need for
unquestioning adherence to a political
decision already made; or [6] the potentiality
of embarrassment from multifarious
pronouncements by various departments on
one question.

Id. at 217 (listing the “Baker factors”). We have
characterized the first three factors as “constitutional
limitations of a court’s jurisdiction” and the other three
factors as “prudential considerations.” Corrie, 503 F.3d at
981 (citation omitted). The inquiry requires a “case-by-case
analysis” in which the various Baker factors “often
collaps[e] into one another.” Alperin v. Vatican Bank,
410 F.3d 532, 544–45 (9th Cir. 2005). Still, “[t]o find a
political question, we need only conclude that one factor is
present, not all.” Schneider v. Kissinger, 412 F.3d 190, 194
(D.C. Cir. 2005).

The district court relied on the first two Baker factors,
and we primarily do the same. Indeed, we have recognized
that the first two are likely the most important. See Alperin,
410 F.3d at 545. Under the first factor, the Marshall Islands’
claims involve “a textually demonstrable constitutional
commitment of the issue to a coordinate political
department,” Baker, 369 U.S. at 217—namely, the decision
of when, where, whether, and how the United States will
negotiate with foreign nations to end the nuclear arms race
and accomplish nuclear disarmament. See U.S. Const. art.
 REPUBLIC OF THE MARSH. IS. V. UNITED STATES 25

II, §§ 2, 3. 11 “The conduct of the foreign relations of our
government is committed by the Constitution to the
executive and legislative—‘the political’—departments of
the government, and the propriety of what may be done in
the exercise of this political power is not subject to judicial
inquiry or decision.” Oetjen v. Cent. Leather Co., 246 U.S.
297, 302 (1918). We simply cannot square “the ‘primacy of
the Executive in the conduct of foreign relations’ and the
Executive Branch’s lead role in foreign policy,” Taiwan v.
U.S. Dist. Court for the N. Dist. of Cal., 128 F.3d 712, 718
(9th Cir. 1997) (citation omitted), with an injunction that
compels the United States to “call[] for and conven[e]
negotiations for nuclear disarmament in all its aspects.”

The second Baker factor offers an additional
impediment: the “lack of judicially discoverable and
manageable standards for resolving” key issues inextricably
intertwined with the relief the Marshall Islands seeks. See
Baker, 369 U.S. at 217. As we have said, Article VI contains
an array of vague terms and a dearth of applicable standards.
Our self-execution analysis applies with equal force under
this Baker factor. See generally Carlos Manuel Vázquez,
Treaties as Law of the Land: The Supremacy Clause and the
Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599,
631 (2008) (explaining that treaties that are non-self-
executing because they are “too vague for judicial
enforcement” are “no different from constitutional and

11
These foreign-relations judgments also implicate the third Baker
factor, because they require “an initial policy determination of a kind
clearly for nonjudicial discretion.” See Baker, 369 U.S. at 217; see also
Bancoult v. McNamara, 445 F.3d 427, 437 (D.C. Cir. 2006) (“The courts
may not bind the executive’s hands on [political questions], whether
directly—by restricting what may be done—or indirectly—by restricting
how the executive may do it.”).
26 REPUBLIC OF THE MARSH. IS. V. UNITED STATES

statutory provisions that are regarded as nonjusticiable”
under the political question doctrine).

The Marshall Islands and amici seek to narrow the scope
of our inquiry by focusing only on the part of the complaint
that concerns the United States’ obligation to negotiate in
“good faith,” a term they argue is frequently applied by
courts in other contexts, such as labor negotiations. This
surgical attempt would read that term in isolation and out of
context. The question is not just what constitutes “good
faith,” but also what measures are “effective,” what qualifies
as the “cessation” of the nuclear arms race, what counts as
“an early date,” and even what it means to “pursue” these
kinds of complex and multilateral negotiations. See El-Shifa
Pharm. Indus. Co. v. United States, 607 F.3d 836, 842 (D.C.
Cir. 2010) (en banc) (“The political question doctrine bars
our review of claims that, regardless of how they are styled,
call into question the prudence of the political branches in
matters of foreign policy or national security constitutionally
committed to their discretion.”). Here, only a second’s
thought brings embedded political questions to the surface,
and the remaining Baker factors also counsel in favor of
demurring.

AFFIRMED.