Promise Despite Overreach in Marshall Islands v. United States

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.