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conducted in the Northern Marhall Islands between
June 30, 1946, and August 18, 1958.

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Section 177(b) reques that the two governents enter into a separate agreement providing "for the just and adequate settlement of al such clai which have arsen in regard to the Marshal Islands and its citiens and which have not as yet been compensated or which in the future may are" (App. 869). Section177( c) further obligates the United States to provide $150 mion to Ihe

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Marhal Isandd for the puroses of fundig that agreement,
known as the Section 177 Agreement, and incorporates the agree~

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ment into the Compact (App. 869).
D. The Section 177 Ageement.

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, The Section 177 Agreement, signed in conjunction with, the' Compact. on June 25, 1983, has creàted a comprehensive, in, tegrated compensation plan "to provide, in perpetuty, a means to

---addrespast,-p1'esnt-and-futue-consequences-oLthe--ucleaa----~ ~-~-~
Testing Program" (App. 332). Arcle Iobligatès the United States
to pay to the Republic of

the Marhal Islands $150 milion to es-

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tablib a clai settlement fud (App. 332); whie Aricle II
specifes the dittibutiön of investment proceeds to the compen-

sationprogram (App. 333). It provides $30 mion to the
per year, to, conduct health cae and

Governent of the Maabal Islands, over 15 years at' $2 mion ' radiologica sureilance
(App.333). It provides $183.75 mion to the peoples of

Biki,

Enewetak, Rongelap and Utr "in payment of claim aring out

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person" (App;334-335).1 '
of the Nuclear

Testig ProtraIfor loss or damage to property and

In addition, the Agreement establihes a Clai Tribunal , with juridiction "to render fial determation upon al, clai ' past, present and futue, of the Governent, citiens and nati6n10 These fuds wi be ,diburd to ditribution authorities for each atoll, over
a 15-year period, as follows: (1) $75 mion to the people of

Bik, now number-

ing approxiately 1300, in yearly amounts of $5 mion; (2) $48.75 mion to the
1900 people of Enewetak in yearly amouuts of$3.25 mion; (3) $37.5 inon to the 450 people of Rongelap at $2. mion per year and (4) $22.5 mion to the

800 people of Utr at $1.5 mion per year. The preci maner of clstn'Bution is to be detered by each respecte commuiity (App. 334-335),

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als of the Marhal Islands which are based on, are ollt of, ot are
in any way related to the Nuclear Testig Program" (App. 338).
Arcle IT provides $45.75 mion to the Tn'bunal for such clai,

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to be disbursed over 15 year at approxiately $3 mion per year.

From the fiteenth year on, a miwn of 75 percent of annual
Fund proceeds are commtte,d to Tribunal awards (App. 336).

Aricle x. entitl,ed "Epousal," af that the Agreement
constitutes the espousal and settlement by the Marhal Islands of
all clai. It provides (Sec. 1, App. 342):

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Th Agreement constitutes the full settlement of an

clai, past, present and future, of the Governent,
,citiens and national of the Marha Islands which are
based upon, are out of, or are in any way related to the
Nuclear Testing Progr and which are agait the

United States, its agents, employees, contractors and
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___m -m-any-otherrelief-i-coIiection-with-such-clai-includ--------m--'---ing any of those clai which may be pendig or which

citiens and nationil, and of al clai for equitable or

may be tied in any cour or other judicial or admtrthe cour of the Miuhal Islands tive foru includig
and the cour of

the United St~tes and its politica sub-

divisionS. '

,Finaly, Arcle, XI of the Ageement, entitled 'United States
Cour," prQv1des that (App. 343):

Al clai descrbed in Ardes X and XI of th Agee-

the United States ment shal be termated. No cour of shal have juriiction to entertain such clai, and any cours of the United States such clai pendig in the
. , shall be dismised.

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E. ' ,Approval or the Compact by the MarshalUslands and

, United States.
The Compact was presented to the people of the Marshall ' Islands for a vote in a September 1983 plebiscite, monitored by international observers from the United Nations Trusteeship Coun-

cil. 13 a. Ct. at 673 (App. 7). The Marhal Islanders approved
the Compact by a 58 percent vote. Ibid.

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The President trasmtted the Compact to the 98th Congress

on March 30, 1984,' and, when action was not completed that year; to the 99th Congress on Februar 20, 1985. 13 Cl. Ct. at 673 (App.
7). The Congress approved the Compact of

Free Association Act, 0

designated as House Joint Resolution No. 187, in December 1985, and the President signed the Act on Januar 14, 1986. Pub. L. No.
99-239, 99 Stat. 1770 (1986).

The Act states that the Compact, which is set fort as Title
II, "is hereby approved,1t and that ItCongress hereby consents to the

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subsidia agreements," includig the Section 177 Ageement (App. 830). Title I dicues interpretation and policies regadig the Compact (App. 830). Appenants rely in th litigation on the
fi sentence of Section 103(g)(2). Section 103(g) provides in its

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entiety (App. 839):, ' '

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(g) ESPOUSAL PROVISIONS. -- (1) It is the intention of the Congress of the United ,States that' the

--~-----p1"ovisions-of-section~l77-of-the-eompact-of-Free-As------.-..~~---------, s.ociation and the Ageement between the Governent

of theÙnited States and the Governent of the Maro shal Islands .for the Irplemep.tation of Section 177 of

the Compact (hereafer in th subsecton referred to
, as the ,"Section 177 Agreement") constitute a fun and final settement of al clai descn'bed in Arcles X and XI of the Section 177 Agreement, and that any such. ' , claims be termated and bared except inofar as
provided for in the Section 177 Agreement.
(2) In fuerance of the' mtention of. Congress as
stated in pargrph (1) of th subsection, the Section

177 Agreement is hereby ratied and approved. It is '
the explicit understandig and intent of Congres that
,the jurdictional

litations set forth in Article XI of

such Agreement are enacted solely and exclusively to

accomplish the objective of Arcle X of such Agreement and only as a clarcation of the effect of Aricle

X" and are not to be construed or implemented

separately from Arcle X.
On May 26, 1986, the United Nations Trusteeship Council declared that the peoples of the Marhal Islands "have freely ex11

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ercIsed their right to self-determation * * * and have chosen free
association with the United States 9f America"; a::d that the

United States "has satifactoriy,diharged its obligations under the term of the Trusteeship Agreement" (Truteeship Council Res. 2183, App. 1221). The United $tates and the Marhal Islands on October 10, 1986, executed an agreement that the 'Como pact enter IIto force on October 21, 1986. 13 CI. Ct. at 676 CAppo

10). The United States notied the Secetar Genera of the

United Nations on October 23, 1986, that the Compact had
entered into force (App.12~7). Final, on November 3, 1986, the
President issued Proclamation No. 5564, anouncig that the

United States ''has fulfed its ob~gations under the Truteeship Agreement," and that the Ageement "is no longer in effect as of October 21, 1986" (App. 1242).11

The United States and the' Marshal Islands have sub, sequentl exchanged diplomatic notes of form recogntion, and

------..-establihed-diplomatic-misions-headed-by-representati\les_who____'_~n are ranked with other ambasadors (App. 1316). The United
States Senate confed the President's nomiee as the United

States diplomatic representative to the Marhal Islands on June
3,1987. 13 CI. Ct. at 677 (App.11).

SUMY OF ARGUMNT
Appellants ask the Cour to stre from the Compact of

Free '

Association a:clai settlement agreement entered into between

the United States and the Republic of the Marshal Islands to provide, in perpetuity, a compensation fund to resolve al conse-

quences aring from the, nuclear testig progr; Under the

term of the Section 177 Agreement, entered as an integral part
óf establihing formal diplomatic relations, the United States has

paid. to the Marhal Islands $150 mion, which has been permanently invested to fund health care proggam, to provide com11 Appellants contended below that the Truteesrup Agement had not been

termated, and, in JUl and Peter, that the Compact wa not in effect. 13 a. Ct.

at 678 (App. 12). The Qa Cour rejected both arguments holdig that the
Compact went into effect on October 21, 1986. Id. at 682-683 (App. 16-17). Ap.

pellants do not chalenge ti holdig, and now concee that the Compact is "in
effect"'(Br. 4, 59).

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pensation to the four major Marhal Islands atoll for loca determiation, and to establish a Cla. TnDunal for fial adjudication
of al clai.

As appellants acknowledge (Br. 21,54), the crtical element
of their chalenge is the contention that the Republic of the Mar-

shal Islands invaldly espoused and setted the clai of its national. Indeed, if the Marha Islands' espC?usa has been vald,

appellants' remag arguents -- that Congrss conditioned ,withdrawal of juridiction on a judicial determation of vald espousal, and that a withdrawal of jursdiction, absent valid
espousal, fai constitutional requirements -- are moot, and the

Cour need not reach those assertons (Br. 21, 54).
The Supreme Cour has held, however, that ~ppellants' very ,

, espousal' arguent, which contests the authority of sovereign
governents to sette clai incident to diplomatic recognÍtion,

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and the United States' authority

to recogne foreign governents

.for-purp-o~es-ot-ettl~mençraìs~ra nonjusticiaD1e politiCä ques- -~-

tion.. United States v. Belmont, 301 U.S. 324, 328-332 (1937);
United States v. Pink, 315 U.S. 203, 226-230 (1942). As dicussed

in Par I below, two ditrct cour have dimied the identical chaIenge to the Compacts 'clai settlement on th basis (see
App. 1326, 1410)~

, espoused its national' clai. As

Moreover; the Republic of the Marhal Islands has valdly dicussed in Par IV, agreements settg the claim by national of one governent agat another

governent are establihed internationa practice. As the Clai Court recogned, the Republiç: of the Marhal Islands grdualy
assued soyereign authority from the fit days of Truteeship
unti, through constitutional self-governent, it became the legal-

ly recogned successor to the Trut Temtory Governent. That
governent ,had fu authority to espouse the c1aimof its inhabitants, and, under the Compact, it validly setted and extin-

guished those claims under long-standing principles of intemationallaw.
In addition, the Clai Court correctly held that Congress
did not condition Arcle XI's withdrawal of United States court

juridiction on a judicial determation of valid Marhal Islands
espousal. ''e plai language of Section 103(g) of the Compact

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Act neither requires nor alows for judicial review of that espousal.
Congress, in fact, rejected alternative langauge whicll expressly ,

would have imposed such a condition, and, as addressed in Par II,
appellants may not ask the Court intead to so-cndition the Com- ,

pact.

The Clai Cour also correctly held that the Secton 177 Agreement meets al Fif Amendment requiements. The court found that COngres' ratication of settlement, includig Article
XI's withdrawal of jurction in implementation of settlement,

was a.vald exercie of Congress' authority to grant, or restrct, the

United States' consent to sut under the Tucker Act. Gold
Bondholders Protective Councü v. United States, 676 F.2d 643, 646

(C.Cl. 1982). Moreover, the Compact and Section 177 Ageement provide a permanent alternative remedy, with substatial as necesand regeneratig fudig, for, compensatig al clai,

... --be-al1owed.to-operate-asintended,and-caotbe-challengedjudi~---~~--:--.
daly until it has "run its coure."
Finaly, as diC1ssed in Par V

sar¡, in perpetuity. As the Qai Cour found, that progr must,
below, the J~t Compensation

Clause does not extend to citiens of the United Nations Trust
Terrtory, which was a unique politici entity I

where $e duties of

the admisterig authority were d,etied expressly and solely by

the Truteeship Ageement. The Clai Court intial determied that the takg clai should be dismied on ths basis, but
subsequently held, despite rug that the Tllt Terrtory was not

United States terrtor¡, nor T::t Terrtory citiens United States citizens, that the Fif Amendment applies to the United States
wherever it acts. Reversal of that overbroad holdig, which faUs
to account for the trteesp relationship here, provides an alter-

native ground for afg dissal of the takg clai below.

ARGUMNT

I. A CHANGE TO SETTMENT TERMS'
NEGOTITED AS AN INGRA PART OF
DIPLOMATIC RECOGNION RASES A NON. JUSTICILE POLICAL QUESTION While appellants casualy assert (Br. 55) that these appeals,
if successful, would do nothing more than "simply remit" the..
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c1ai to the aai Cour, appellts, in

to invaldate an international clai settement agreement that
has been entered between sovereign governents as an integral par of establihig diplomatic recogntion and a full restrctug of their political relations.12 Moreover, appellants assert (Br. 5455), as the basis for the result they seek, that the Republic of the

fact, are askig this Court

Marshall Islands, despite United States recognition of its
sovereignty, has no authority to espouse and settle the' clai of

its own national.
As discused below, however, the Supreme Cour has held
that the authority of sovereign governents to settle clai of

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their. nationals incident to diplomatic recogntion and redefied
political relations Is a non to the foreign relations

justiciable politici question commtted

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powers of the political braches. United, States v. Belmont, 301 U.S. 324; 328-332 (1937); United States v. , ' Pink, 315 U.S. 203, 226-230, (1942). Relyig on such precedent,

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... ._.~------'-----tweclistr~t-cÐur-havedised-challenges1o-the-eompact's-set:tlement term identica to those raied here. Anolok v. ,United ' States, No. 85-2471 (D.D.C. June 16, 1987) (App.1326) ("Atolok Ij;Artolok v. BrookJavenNationa/ Laboratories, No.1j 82-2364 (C.D. Ca. Jan. 11,1988) (App. 1406) ("Ant%k ir'). 3

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. Whe,the Clai Cour did not reach the politica question
in dising appellts' complats, 14 the political question doctre thus provides an alternative, and fundaental, ground
issue

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for afg the decisions below. ~5

12 Appellants specica as the Cour to str Arcle X from tle Section
177 Agreement (Br. 55), which provides tht the Ageement .constitute the full

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settlement of al clas, past, present and futue" arg from the testig progrm
(App, 342). Appellts al ask the Cour to stre Arcle XI, wruch withdraws
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consent to suit for such clais in United States coUr (App. 343).
13 As indicated in the stteme~t of related caes, appeals are pendig in the

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14 WWe the Qaa Court stated preliary durg an Apri

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23, 1987, hear-

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ing that, "eo)~ the politica question isue, I believe that P1aêfs prevai" (App. 1311), the court did not fi rue on the isue, and dimised on other grounds.

15 Th Cour may af on an alternatie ground where the Cour is not required to engage in its own fact fiding. Seelntemational Medical Prsthetics Re15 '

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A. These appeals chalenge foreign policy decisions that
are beyond the scope ofthejudiclary.

That certai politica decisioii are, by their nature, comMarmitted to the politica braches has been recogned since bury v. Madison, 5 U.S. (1 Cranch) 137 (1803), in which Chief , Justice Marhal acknowledged a clas of caes that involve a "mere political act ofthe executive." ld. at 165-166. The political quesBakerv. Carr, tion doctrie is founded on the separation of powers,
369 U.S. 186,210-211 (1962), and precludes judicÍal review when
anyone of several

"formulations" are ((. at 217), which have

been grouped, in Goldwater v. Carter, 44 U.S. 996, 998 (1979)

(Pow~ll, J. ~ncug), into thee relevant inques:
,(i) Does the ise involve resolution of questions committed by the ,

text of,the Constitution to a coordiate,

branch ofGoverient? (ii) Would resolution of the
--- ----

question demand tht a cour möve beyond areaS of
----jUdicial experte?-(iirDo pruaential consiaerations
counel agait

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judicial intervention? '

B. Foreign pollcy decisions as to diplomatic recognition

and clai settlemént are committed to the politica

branches. '

The Supreme Cour has rep~atedy emphasized that the
"conduct of foreign relations is commtted by the Constitution to

, the politica dèparents of the Federa Governent." United
States v. Pink, 315 U.S. at 222-223; United States v: Belmont, 301 U.S. at 327-328; Bake v. Carr, 369 U.S. at 211. As stated in 'Chicago&SouthemAir Lines, Inc. v~ Wateran Steamship Corp.,
333 U.S. 103, 111 (1948):
(''he very natue of executive decisions as to foreign

policy is political not judicial. Such decisions are wholly confded by our Constution to the politica deparments of the governent, Executive and Legilative.
They are delicate, complex, of prophecy. * * * They are

and involve large elements
decisions

which of a kid for the Judiciar has neither the aptitude, ,facilties. nor
. search Associates, lnc. v. Gore Enterrie Holdings, lnc" 787 F.2d 572, 573 n.2
(Fed, Cir. 1986). No such fact fiding is requid in tt cae. '

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responsibilty and which has long been held to belong , in the domai of politica power not subject to judicial

intrusion or inqui.
Accord, e.g., Hariiade v. Shaughnessy, 342 U.S. 580, 588-589
(1952);

Johnson v. Eisentrager, 339 U.S. 763,789 (1950).

Whe not every cae touchig on foreign afairs lies beyond , judicial i:eview,16 the diplomatic decii,ons chalenged here fal

squarely'withi the foreign relations powers of the politica
branches. These appeal binge on appellants' claì that tJJe of the Marhal Islands has no authority to espouse and settle the clai of its nationals (Br.54-61). However, the United
Republic

States' has, under the term ofthe Compact recogned the Marshal Islands governent as havig sovereign authority to conduct
its oww foreign relations, includig clai settement:

pellants chalenge not only the settement, authority of the Mar-

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n -r~rcu-gfîze a parcular foreigngovernenranavig tne capacity
, to act. 17

shall Islands, but the very authority of the United States ,to

Questions involvig the recogntion of foreign governents,
, however, "so strongly deif J jud~cial treatment that without executive recogntion a foreign state has been caled 'a republic of

,,'

Thus, ap-

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whose

, 16 As the Cour counled in Bakk, 369 U.S. at 217, the doctre "is one of
'politica questions' not one of 'politica cà."
17 Appellants argued below that the Truteehip Ageement had not been ter-

mlated, the Compact wa not in effect and the Mahal Islads governent
lacked the neceaa sovereignty to esous its nationaJ' clai. 13 CI, Ct. at 678;
, see llJud, Pltf Mem.ll Opp. to Deft's Amended Motion to Dismi at 10-15
(Dee. 22, 1986). Thus appellts sought to nul the clas settlement by ll.

valdatig the entie Compact Appellants now asrt (Br. 54) that the espousal
issue does not rae questions of sovereignty or United States recogntion of the

Marhal Islads, but intead onl whether a proc of intemationalaw was
benefits of the Section 177 compenstion plan remai

properly followed: Indeed, appellts now ask (Bt. 55) that the strctu and intact whie appellants are

alowed, though judicial nulcation of Arcles X and XI to litigate

,their clai

as well. Whe appellants no longer chacteri their arguents ll tenns of
sovereignty, however, their chalenge to espousal and clas settement on appeii

raises the identica issue for purose of the politica question doctrie - whether , sucn a chalenge by foreign national to their governents authority to settle
claims, and to the United States deterratton that their governent holds that

capacity, nnses a question that United States cours may decidè.

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exitence we know,nothig.ni Bakerv. Ca", 369 U.s. at 212. As
stated in Guaranty Trut Co. v. United States, 304 U.S. 126,137138 (1938):

What governent is to be regarded here as representative of a foreign sovereign state is a politica rather

than a judicial question, and is to be determed by the

political, deparent of the governent. Objections to
its determation as well as to the underlyig policy are
to,be addressed to it and not to the cour. Its action in

recogng a foreign governent and in receivig its
diplomatic representatives is conclusive on al domestic

Cours wi "not stop to inquire what the 'actal' authority of those
diplomatic representaties may have been." lll. at 139.

cour. '

Moreover, the Supreme Coll has expresly held that the
--..-----c---.--pøwer~to-recogne-a--oIeign-sl)vereigI necessary includes the
, power to negotiate and settle clai of national, and a diplomatic those ends conclusively binds the cours. agreement accomplihig
U.S. at 222~223, 229-230.18 Belmo~t and

United States v. Belmnt, 301 U.S. at 330; United States v. Pin, 315 Pink arose from the Lit-

vinov Assignent, in which the United States and the Soviet Union agreed a settlement of clai and counterclai between
,the two governents and their nationals in conjunction with the the Soviet UniQn. Belmont, 301 U.S. United States',recogntion of at 326. The Soviet Governent ageed not to enforce the nation-, .
aled clai of its citiens agat America nationals, and to

release aad asign those clai to the United States, so that out-

standing clai of other America national agaist the Soviet
Union could be paid. Ibid.; see dicussion of Belmont at Dames &

Moore v. Regan, 453 U.S. 654, 682-683 (1981).

18 "By an act of recogntion, a state commts itself to treat an entity as a stat~

or to treat a regie as the governent of a state,. Restatement (Second) of the Foreign Relations La of the United States § 94(1) at 303 (1965). Sovereignty, in the modem practice of intemadonallaw, refers to the totalty of international rights and duties-esidig in a diete, terrtorial unt. Crawford, Th Creation of
States in Interntional Law at 26-27 (1970).
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The Cour in Belmont, rejecting a New York bank's chal-

lenge to United States authority to collect fuds deposited by a Russian corporation, held that "'responsibilty for recognition or non-recogntion with the consequences of each rest on the political adviors of the Sovereign and not on the judges.

on 301 U.S. at

329-330 (citation omitted, emphasis sùpplied). Notig that the

two governents had agreed to clai settlement as an integral
par of recogntion and the exchange of ambassadors, the Court

found (301 U.S. at 330): .
The effect of th wa to valdate, so fàr as th countr
, is concerned, al acts of

the Soviet Governent here in-

volved from the commencement of its exitenc,e. The recognition, establihment of diplomatic relations, the
asignent, and agreement with respect thereto. werè
al pars of one traction, resultig in an internation-

al compact between the two governentS. That the

----------negotiations-acceptance-ef-the-asigment-acl-agreements and understandings in respect thereof were
with the competence of the President may not be

doubted. ' .
As here, it was aserted in Belmont that ì' I

the clai settement vio-

lated the just compensation clause of the Fifh Admendment. ¡d. at 332. The Çour held that ii(w)hat another countr has done in ,

the way of tag over propert of its n~tional * * .. is not a mat,.
, ter of judicial consider~tion." Ibid. (emphasis supplied). Rather,

'( s )uch national must look to their own governent for any
redress to which they may be entitled" Ibid. '

Five years later, the Supreme Court agai upheld the Litvinov Asignent: in United States v. Pink, reafg Guaranty
Trut's holding that ii'(w)hat governent is to be regarçied here as

representative of a foreign state is a politica ràther than a judicial question.'" 315 U.S. at 229, quoting 304JJ.S. at 137. As stated in

Pink (315 U.S. at 229): ' , "
That authority is not lited,to a determation of the governent to be recogned. It includes the power to
determne the policy which is to govern the question of recognition; Objections to the underlyig policy as well ,

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as objections to recogntion are

to be addressed to the

political deparent and not to the court.
The Court specifcaly found that removal of "such obstacles
to full recogntion" as the clai of national "is a modest implied
, power of the'President who is the 'sole organ of

the federal govern-

ment in the field ofintemation'al relations.'" 315 U.S. at 229, quoting United States v. Curt~Wright Corp., 299 U.S. 304, ~20 (1936).

Indeed, the "( e )ffectiveness in handlg the delicate problems of , foreign relations rec¡uires no less," for:

Unless such a power exits, the power of recogntion

might be thwared or seriously diuted. No such

placed in the way of rehabiltation of obstacle ca be relations between th countr and another nation, unless the hioric conception of the powers and responof the politica deparent that fu recogntion of the Soviet Governent reqed the settement of al out-

, sibilties of the President in the conduct of foreign

__c___,_~--___~_~afai--s_to-be_drticay_r-evied It was the judgIent
stadig prObleID includig the clai of O'il1ation-'

-

à.s. Recogntion and the Litvov Asignent were
interdependent. We would usrp the executivefuc-

, tion if we held that tht deciion was not fial and conclusive in the court.
¡d. at 229:-230 (citation omitted).

Cour in Shanghai Power Co. v. United States, 4 Ct. Ç1. Th 237,248 (1983), afdwithout opinon,j65 F.2d'159 (Fed. Cir.),

, cert. denied, 474 U.S. 909 (1985), simarly afed a rug that a Fifh Aiendment takg chalenge to a clal settlement raies
a political question; As the aai Cour held, a settlement ITbe~

tween tWo nations, even one that on its face deal with nothg
else, does not take place in a vacuum; it is par òf the continuing IT See
and evolvig diplomatic relations between the sovereigns.

also Ozanic v. United States, 188 F.2d 228, 231 (2d Cir. 1951), in , which Judge Leared Hand held that ITcontinued mutual amty between the nation and other powers agai and agai depends upon,

, a satisfactoiy c;ompromie of mutual clai; the necessar power
to make such compromises has exited from the earliest ties and
been exercised by'the foreign offces of al civied nations." The

20

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Clai Cour pere recogned that relationship as well, holdig
that (13 O. Ct. at 683, App. 17):

, ' The thst of the Compact Act is to diharge United States obligations to promote the development of the

Marhal Islands peoples toward self-governent. The
settlement of clai aring from the nuclear testig

progr is an integr par of the relationship of the
United States and the newly emerged RM. The settlement cannot be diregarded as if it were not essential to that relationship. , To cae out the Section 177 Agee- '

ment would amount to a restrctug of the legal'

'CounciIJ,.9 ' , ' '
the President and the (United Nations Truteeship
As we have cal challenges to the preciely tfi-6asis. See

relationship that has been reco~ed by the Congress,

noted, two ditrct cour have dismsed identiCompact's clai settl~menLteIm_on
Antolok I (App. 1326-1328),

-Ji j

I

Antolok II

(App.1409-1412). The plaiti in those actions, many of whom also brought the intant Nitol action, sought damges from the '

t i
I
¡

nuclear testig program under the Federal Tort Oai Act (App.
3122, 1406). As here, the plaitifs asserted, based on lack of
seveieignty and on the doctre of contiuous nationalty, that the

r

Mahal Islands goveInent lacked authority to espousè, their
clai (App. 1326, 1328; 1409).
Botltolokcours, followig

that the politicaa question doctre controls (App. 1326-1328,
1409). In

Guaraiity Trut ,andPi, held'

Antolok I, the cour held that "rsJeparatiQn of powers

requies the, Court to respect the settlement proviions imple19 Appellants attempted to distiguishBebnl\ and

, that those caes involved nationaltion by a foreign governent, rather than
of authority upon which a foreign government settles its national' claims,
however, is irelevant to the politica question doctre. The pertent isue is
í I

Pink below on the ground
". ¡

espousal, of the clais of its national, See in Peter, Pltf Mem. in Opp. to Deft's, Amended Motion to Dismis at 47 n.97, December 22, 1986. The aserted source

whether the United States has recogned sovereignty and the foreign sovereign,
has setted the relevant clais. Pink, 315 U.S. at 230. As stated in

I,
i,.",..,

U,S. at 332, and in Pink, 315 U.S. at 226, if f~reign, nationa are dissatifIed with
set,tJement of their clais, bywhateversôurc of authority

Belmont, 301

'. '

(- ..'
¡-~ .

:_"":"""r,: .

by their governent; their'!cmedy is with that governent.

may have been aserted

r~;:,i."~: ~. ;"~ ~.;

21

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mented in COp.jUIction with the United States' recogntion of the
Marshall Islands governent' to ignore them" (App. 1328). And in

and ratication of the Compact, not
Ant%k II that the

"United

States' decision to recogne the governent of the Marhal Islands as sovereign and thus possessed with the capacity to espouse
clai, is a matter

with the executive's dicretion~r¡foreign rela-

tions power, and is a non-reviewable political question" (App. 1411).
In the proceedigs below. appellants relied extensively on
thi Cour's decision in Langenegger v. United,States, 756 F.2d
i

i.

1565, is69 (Fed. Cir.), cert denied, 474 U.S. 824 (1985), which held that thepolitiCa question doctre did not preclude a United
States citien from hrigig a takg clai for land appropriated

by EI Salvador as the resut of pressure by the United States. TTat
case, however, involved 'no governent-to-governent settlement of the plaitis cla purant to a diplomatic agreement,

--:-------'---~-c---- no issue ofErSãlVãõïs capacityto seffe clãi or, fh--tea--~~:

States recogntion of that authority, and no question of whether '
foreign

national may'ask United States cour ,to review their

goveIIents settlement. Indeed, the Cour stated (M. at,1569, '
1570): ,

We note that thi case does not require a judicial determination of El Salvador's sovereignty

or the ap-

propriatenes of its actions .. .. .. nor does the case
question the executive's authority to undertake any action. .. ....
We note agaa that thi is a clai ,of narow focus, requirg no second-guessing of the executive

branch or

governents.2 "
20 Simariy, Rairez. v. Wetnerger, 745 F.2d, on other groundS

detaied inq~into the ulterior motiveS of the two

1500 (D.c. Ci. 1984)" vacated

sub nom Weinbererv. Rairez, 471 U.S. 1113 (1985), involved

a takg acton by a United States citien, and no diplomatic settlement agree-

ment.
, 22

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The Cour in fact, found that had there been an "actual extguish'ment" though an international clai settlement, Shanghai Power
would control. 756 F.2d at 1573.

i i

Finally, appellants argued below that Congres expresed an intent that the politica question docte did not preclude review,

relyig on a floor statement by Congressma Seiberlig th¡¡t 'con:stitutional questions "caot be foreclosed from còur review," and ,that "(o)ur action today in approvig the compact should not alter' a cour's view of whether any question regardig rights of the Mar- '
shal Isl¡:nders which have aleady vested is a political question." ,131 Congo Rec. H11838 (Dec. 11, 1985) (see App. 820 for this col-

loquy in its entiety). A floor statement by one member of the House, however, Caot preclude judicial review of whether
' separation of powers priciples render foreign policy decisions nonjusticiable. The CompaCt Act itself maes no such withdrawal; and the floor st~t~mentacknowledgescthat-CQurt-may-åeeide-the

. politica question issue.
Whe Congre5man Seiberlig's statement the political.

contends that, question doctre caot preclude review of constitu-

tional issues, appellants' constitutional arguent, as

fully concede (Br. 21, 54), does not even are if the espousal and

appellants

settlement by their governent is vald But it is precisely the
valdity of the settlement, and the natue of the relief sought here

askig the Cour to dimatle the settlement, which raises the
determative politièal question. The court have consistently

held th~t authority to recogne the capacity of a foreign sovereign
an~ sette clai is exclusively commtted to the political branches.

C., ' To grant the relief sought in these cases would dismantle the settlement, create international uncertaty as to the Marshall Islands' authority to '

conduct sovereign acts, and undermne United
States foreign policy.
The political question doctre precludes adjudication that

would require couIt to determe matters outside judicial expertise, or resut in embaraSment or confsion "from multifarous
pronouncements by varous deparents on one question." Ba1ær, v. Carr, 369 U.S. at 217. These considerations are paricularly critical in foreign relations matters, which frequently "tur on stand-

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ards that defy judicial application," or "uIlquely demand single-

voiced statement of the Governents views." Id. at 211. In asì

i;essing such concerns, "the crucial consideration is the

r i
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,at 211-212. '

consequence that would flow from granting the plaiti the relief
they seek." Ante/ok II (App. 1411-1412); Baker v. Carr, 369 U.S.

The international' and bilateral foreign policy interests at
stake here, and the potential consequences of strg the settle-

ment, are substantial. As stated in the Compact, the governents have agreed to a relationshi ''which providers) a fu measure of
self governent for the peoples of the Marhal Islands", and

which recognes that governents "capacity to conduct foreign

afai ,. ,. ,. in (its) own name and right" (App. 858).21 International acceptance of that policy higes, however, upon international recogntion of the sovereign acts of the Mahal Islands

government. The United States and Marhal Islands have achieved-signcat-g~-in~thl'espect.22 ¥et-the-relief-s0ught
before ,this Court could ca into question that very palicy founda-

tion. A determation by a United States cour not to honor,
espousal, in confct with United Stat~s policy, could lead foreign
, 21 'T agrent represnts the fuent of United State obligations

,under both the Uiùted Nations Cher and the Truteep Agement to
"promòte the development of the inabitats of the trt terrtory toard self-

governent or independence" (App. 278, 273). Uiited States policy recogng
Ageement by the Marhåå Isanders in a plebiscite recognd by

the Marha Islands is basd upon approva of the Compact and Se;cton 177 the U.N. Truteeship Counci as havig fued the Charer goal of achievi self-determaAsocatioii for Micrnes: Constitutional and

tion. See Hi, Compact of Free

International Law Issues, 18 Intl Law 583, 602-603 (1984). 22 Since United States recgntion of the MarhaI Islånds the governments
of Australa, New Zealand, and Israel have establihed fonnal díplómatic rela-

tions, and the nations of the South Pacic Forum - Fij~ Papua New Guiea, Ki'bati, Niue, Cook Isands, New Zeald, Austral Solomon Islands, Tonga
Vanuatu, and Tuvalu - have recgned the sovereign statu of the MarhaI Is~

låads. The International Civ Aviation OrgaIiition and International Martie OrgaItion, which 'are spec~d agencies of the United Nations, have alo
recogned tl!e Mahal Islands governent for puxoses of membership, These
gai have been realed despite contiued oPPC?sitíon by the Soviet Union to the

Marshal Islands' free association statu with the UIIted States, whie seekig its
own increaed inuence in the region. See 13 a. Ct at 682
24

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governents to question the authority of

the Republic of the Mar- ,

shall Islands to act.in other areas, and underme delicate
diplomatic effort to achieve interntional recogntion of the post-

trteeship status ofthe Marhal Islands. Judicial nulifcation of
the settlement could thus frtrate United States policy fosterig

Marshal Islands self-governent, and underme actions taken
by the President to implement the Compact in fuent of the the UN. trsteesmp sytem. See Sec.101(b) of Comobjectives of
pact Act (App. 830).

The bilatera relations between the United States and Nfarshal Islands would liely suffer as well. Based on the determna-

impai relations, the tion that on-going litigation could directly sovereigns elected to settle ciai tho:ugh a comprehensive
governent-to-governent agreement. The Section 177 Agree-

ment, which embodies that decision, provides a carefully' negotiated and effective mechansm to address in a long-tenn manner-the-eemplex-legal-eeenemie,eIitiea-anå-diplematie-issues raied by the nuclear testig cIa.23 The Agreement was approved by the peoples of the Marhal Islands in a free and informed act of self-determation (13 Ci. Ct. at 673), and by the
United States Congres. and represents a major and integral ele-

ment of bilatera relations between the two governents. See United States v. Pik, 315 U.S. at 223, 228-230.

Dismantlg the settement would place the fu range of ongoing medical radiologica, rehabiltation, resettement and compensation program under the Secton 177 Agreement in libo.
, Indeed, the United States and Republic,

of the Mahal Islads would need to enter into negotiations, pUruant to Arcle XI of
23 The United States previous attempted to addres the consequence of the

nucleaitestig progr on an ad hoc bas under 14 separate statutes, as listed
in

Appencl A of the Section 177 Ageeent, deag with isd rehabiltation,

agrcultu maitenance medica treatment, compenstion for injures and loss ' of property, radiologica monitonng and clas settement (App. 344B). Whe

the Unitea States provided some $150 mion under these statues over a two. decade penod, the Section 177 Ageement, establihig an additional $150 mil.
lion compensation progr, represents the fit comprehense mean of creating

and maintainig "in perpetuty, a meas to addres past, present and future consequences of the NUclèar Testig Progr, includig the resolution of restant

clai" CApp.331),

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the Agreement (App. 343), to determne the Agreement's con-

tinued viabilty. The governent-to-governent understandigs
IDcorporated into the Section 177 Agreement and Compact, and

the political consensus in the Marhal Islands which resulted in their approval would thus be substantialy undermed. A politically viable international clai settement, which is beingimple- , mented effectively, may well be replaced by internal politica and
legal tenson in the Maral Islands, and deterioration of suc~ess-

ful relations which have developed between the two governents,
because of precisely the frctions which the settement' was

designed to remove. See United States v. Pink, 315 U.S. at 22823D.

Appellants contend (Br. 55) that the indemncation clause
of the Section 177 Agreement, in which the Mahal Islands in, demnifes the United States ftom the setted clai, for

, .

up to $150

milion, would preserve the Section 177 ,Aeement progr in-

taGt,-and-null-any-adversimpact-r~m-retug-theseclai-ta
litigation. The Section 177 Agreement, however, is an integrated compensation plan whose par are not severable. The indemnty
proviion provides nothig more than.lited protection agaist'

duplicate compensation, under both the Compact and in cour, of
certai clai. It does not prevent disruption to the compensa-

tion plan or Compact, mitigate diplomatic tensions which would

are between the United States and Marhal Islands, or address
the resultant har to the Maral Islands' international standig. The end result of judicially nulg the settement would be that

the United States' obligation to compensate those afected by the
nuclear testig program, now embodied in a comprehensive
diplomatic agreement, would once politicay divisive agai become an

il-defied,

and contentious sourçe of

uncertaity between

the United States and the Marhal Islands, and in the international community.

II. TH WIRAWAL OF THE UND STATES'
CONSENT TO SUI DOES NOT DEPEND ON '

JUICIA APPROVAL OF MASHAL ISLAS
ESPOUSAL Appellants assert (Br. 20-32) that Congress, though Section
l03(g)(2) of

the Compact Act, amended Arcle Xl of the Sec26