Marshall Islands Lawsuit in US Federal Court Update
Posted: August 29, 2014 Filed under: Nuclear 1 CommentHat tip to Maya Brehm for sending me this link, which gives some updates on the RMI’s lawsuit against the US, in US federal court, which is a counterpart to its suit against the nine nuclear weapons possessing states in the ICJ. At the link, you can find the RMI’s lawyers’ submission in opposition to the government’s motion to dismiss. For the non-lawyers out there, it is typical for a defendant to make a motion to dismiss a case early on, in the hopes that the court will decide that the plaintiff’s suit is so lacking in merit, even on its face, that it should be dismissed so as not to waste the court’s, and the defendant’s, time. So that’s where the proceedings are at the moment, and if the government wins the motion to dismiss, the case is over.
I haven’t seen the government’s submission supporting its motion to dismiss, but you can make out from the RMI’s submission in opposition some of the issues that were raised by the government. And indeed, these and others were anticipated beforehand by observers. US constitutional and federal courts law is by no means my specialty, but I think the biggest hurdles that have always existed for this case are:
1. Sovereign immunity – basically you can’t sue the federal government without either its explicit or implied consent. That’s federal courts 101. Usually you find this consent in a statutory cause of action. But none exists here. I haven’t seen any arguments by the RMI’s legal team that persuasively overcome this hurdle.
2. It looks like the RMI’s legal team are putting a lot of stock in their assertion that the NPT is a self-executing treaty. They obviously haven’t read the US Supreme Court’s 2008 Medellin case, which effectively created a presumption against treaty self-execution in US federal law. As I read Medellin, the NPT doesn’t even come close to the standard that the court will look for in order to find the treaty self-executing. And since there was never any implementing legislation for the NPT in the US, that avenue is foreclosed as well.
The US federal court aspect of the RMI’s cases has always struck me as strange, and the more I learn about it, the more ridiculous it seems. I strongly suspect that the court will grant the government’s motion to dismiss.
And from what I can see of the lawyering of the RMI’s US federal court legal team in this case, I stand by the concern I expressed here previously about the parallel effort in the ICJ.
Arms Control Law 
I agree with Professor Joyner that “the NPT doesn’t even come close to the standard that the court will look for in order to find the treaty self-executing”. However, Professor Joyner seems to have overemphasized the Medellin case. As a matter of fact, the Medellin case is not the first in the US to case establishing the distinction between self-executing and non-self-executing treaties. There are plenty of old cases, some of them being really old (1800s), addressing this very issue, for example: Foster v. Neilson 27 US (2 Pet.) 253, 311, 7 L.Ed. 415 (1829); United States v. Percheman 32 US (7 Pet.) 51 (1833); United States v. Postal 589 F.2d 862, 875 (5th Cir.1979), cert. denied, 444 US 832 and Linder v. Portocarrero 747 F.Supp. 1452, 1463.
Notably, the Supreme Court in Edye v. Robertson 112 US 580 (1884) declared that treaties which “contain provisions which are capable of enforcement as between private parties in the courts of the country . . . [are] in the same category as other laws of Congress.” That is to say, an international convention would become a law of the land, where its terms determine the rights and duties of private citizens, and contrasts with the position where a political issue is involved and the treaty is thereby treated as non-self-executing. (Malcolm N Shaw, International Law, 6th edition, Cambridge University Press, 2008, p.163)
To conclude, distinction between self-executing and non-self-executing treaties are deeply rooted in the tradition of US law, and NPT is clearly not a self-executing treaty according to the standard set up by US courts. One need not to emphasize the significance of the Medellin case too much, although that case may be the latest US case addressing this issue thus deserves some attention.
Wang Tingliang
(a student of Dr. James Fry’s course “Arms Control and Disarmament Law” at University of Hong Kong)