Lead Opinion
Opinion filed by Chief Judge WALD, concurring in judgment only.
Circuit Judge SENTELLE announced the judgment of the Court in an opinion as to which Circuit Judge STARR concurs in all except Part IIB. Chief Judge WALD filed a separate opinion concurring in the result.
Residents and former residents of the northern atolls of the Marshall Islands appeal from a District Court judgment dismissing tort claims arising out of nuclear testing conducted by the United States on those islands. The District Court dismissed these tort claims for lack of justicia-bility, concluding that the complaint raised nonjusticiable political questions. Since we find that the District Court committed no error in its dismissal, we affirm for the reasons set out more fully below.
I. Background
A. The United States and the Marshall Islands
The relationship between the United States and the Marshall Islands traces to the end of World War II, when the United States liberated the islands from Japan, which had administered them under a League of Nations mandate. From 1944 until July 18, 1947, the United States governed the islands under a temporary military occupation government. On July 18, 1947, the United Nations brought the Marshall Islands and other islands of Micronesia within the U.N. trusteeship system. The United States and the United Nations Security Council approved a trusteeship agreement designating the United States as “administering authority” over a trust territory comprised of the Marshall Islands, the Mariana Islands, and the Caroline Islands, all of which were commonly referred to as Micronesia. Trusteeship Agreement for the Former Japanese Mandated Islands, approved Apr. 2-Jul. 18, 1947, United Nations-United States, 61 Stat. 3301, T.I.A.S. No. 1665. As administering authority, the United States assumed full responsibility for governmental functions of Micronesia, including executive, legislative, and judicial powers, see id., art. 3, and agreed to assist in the development of the Micronesian islanders toward self-government and independence. See id., art. 6; see also United Nations Charter, art. 76(b). Under the Trusteeship Agreement, the United States retained the necessary control and authority over the Marshall Islands to continue nuclear testing begun during the period of military occupation pursuant to the Atomic Energy Act of 1946, Pub.L. No. 79-585, 60 Stat. 755 (1946), as amended by Atomic Energy Act of 1954, Pub.L. No. 83-703, 68 Stat. 919 (1954). Plaintiffs in the present litigation are residents and former residents of the northern Marshall Islands claiming injury to their persons or property by radioactive fallout from the nuclear tests.
During the twenty years following the commencement of the trusteeship arrangement, the Secretary of the Interior, by authority of the President and with the advice and consent of the Senate, appointed a High Commissioner to serve as senior administrator of the trust territory. See Department of Interior Secretarial Order No. 2876, 29 Fed.Reg. 1855 (1964), superseded by Secretarial Order No. 2918, 34 Fed.Reg. 157 (1969). The High Commissioner reviewed both domestic and foreign governmental affairs of the trust territories. In the 1960’s, the United States initiated progress toward Micronesian self-government. In 1965 a congress of Micronesia came into being. Elected leaders from throughout the trust territory met to discuss concepts of independence and political unity.
After the Micronesian Congress had considered various options, all parties agreed that cultural and geographic factors dictated a division of the trust territory into four independent governmental units, the Federated States of Micronesia, the Republic of Palau, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands (“RMI” or “Marshall Islands”), the only government whose citi
B. The Compact of Free Association
All governments contemplated the evolution of the new entities toward self-governance with a view to the entry of each new government into a Compact of Free Association with the United States. In the case of the RMI, the negotiations leading to the Compact proceeded over the course of the next five years. Much of the negotiation concerned the settlement of nuclear claims giving rise to the present litigation. On June 25, 1983, the two governments executed the final version of the Compact of Free Association, Oct. 1, 1982-Jun. 25, 1983, United States-Micronesia-Marshall Islands, 99 Stat. 1800, T.I.A.S. No. _ (“Compact”), with an accompanying nuclear testing claims settlement, Agreement for the Implementation of Section 177 of the Compact of Free Association, Jun. 25, 1983, United States-Marshall Islands (“settlement agreement” or “Section 177 Agreement”), reprinted in Joint Appendix (“J.A.”) 67, which we will discuss below. The RMI approved the Compact including the settlement agreement in a U.N.-monitored plebiscite in September of 1983 by 58 percent vote of the Marshall Islanders.
The President submitted the Compact and settlement agreement to Congress on March 30, 1984. After the 98th Congress failed to complete ratification, the President resubmitted the agreements to the 99th Congress on February 20, 1985. The House of Representatives approved final modified versions on December 11, 1985, and the Senate on December 13, 1985. See Juda v. United States,
On February 18, 1986, the Nitijela, the constitutionally established legislative body of the RMI, enacted the Compact of Free Association Resolution of 1986, Res. No. 62 N.D.-2 (1986), declaring “for purposes of ... Article V of the Constitution [of the RMI], the Nitijela hereby approves the Compact and its subsidiary agreements, as they relate to the Republic of the Marshall Islands_” Id. § 3.
Thereafter the United States presented the Compact to the Trusteeship Council of the United Nations. On May 29, the Council adopted Resolution 2183 recalling the Trusteeship Agreement and
Not [ing ] that the peoples of the ... Marshall Islands [and the surrounding Micronesian states] ... have freely exercised their right to self-determination in plebiscites observed by the visiting missions of the Trusteeship Council and have chosen free association with the United States of America.... [and]
Consider [ing ] that the Government of the United States, as the Administering Authority, ha[d] satisfactorily discharged its obligations under the terms of the Trusteeship Agreement and that it [was] appropriate for that Agreement to be terminated with effect [from the ef*372 fective date of full entry in the Compact] ....
Examination of the annual report of the Administering Authority for the year ended 30 September 1985: Trust Territory of the Pacific Islands. T.C. Res. 2183, 53 U.N. TCOR (1617th mtg). The Resolution further declared the awareness of the Trusteeship Council that the process “of facilitating the progressive development of the peoples in Micronesia toward self-government or independence ... has been successfully completed.” Id. On January 14, 1986, President Reagan signed into law the Compact of Free Association Act of 1985, Pub.L. No. 99-239, 99 Stat. 1770 (1986) (reprinted as amended in 48 U.S.C. § 1681 note at 624-54 (Supp. IV 1986)) (“Compact Act”).
On November 3, 1986, the President declared the Compact of Free Association with the Republic of the Marshall Islands in full force and effect retroactive to October 21, 1986. Proclamation No. 5564, § 3(a), 3 C.F.R. 149 (1987), reprinted in 48 U.S.C. § 1681 note at 658 (Supp. IV 1986). The United States and the Republic of the Marshall Islands subsequently exchanged diplomatic notes of formal recognition and established diplomatic missions headed by representatives ranked with other ambassadors. Juda,
C. The Present Litigation and the Settlement Agreement
On August 22, 1983, while the Compact and settlement were in negotiation, approximately three thousand present and former residents of the northern Marshall Islands and atolls directly downwind from the nuclear test sites filed the present action in the District Court for the District of Columbia, seeking damages for personal inju-ríes and death resulting from their exposure to dangerous levels of radiation.
The District Court stayed the action at the request of the United States pending the entry of the two governments into the Compact of Free Association. Then, on motion of the United States, the Court dismissed the action for lack of jurisdiction based on Section 103(g)(1) of the Compact Act and Articles X and XII of the Section 177 Agreement. Section 103(g)(1) expresses the intent of Congress that the provisions of the 177 Agreement constitute a full and final settlement of all claims described in the cited articles of the Agreement and that “any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)).
The District Court held that the RMI’s espousal and settlement of the claims were not reviewable by the courts of the United States and that the Court lacked “jurisdiction over plaintiffs’ claims, pursuant to valid law and in conjunction with non-reviewable foreign relations decisions.” Antolok v. United States, No. 85-2471, slip op. at 8 (D.D.C. Jun. 16, 1987). It is from this order of dismissal that plaintiffs now appeal.
II. Analysis
The United States urges that we should affirm the District Court’s dismissal of
A. The Withdrawal of Jurisdiction
In Section 177 of the Compact of Free Association the United States “accepted] the responsibility for compensation owing to citizens of the Marshall Islands ... for loss or damage to property and person ... resulting from the nuclear testing program which the Government of the United States conducted in the Northern Marshall Islands between June 30, 1946, and August 18, 1958.” Compact, § 177(a), 99 Stat. 1812 (reprinted in 48 U.S.C. § 1681 note at 642 (Supp. IV 1986)), T.I.A.S. No_, at_ This Section provided that the two governments, the United States and the Marshall Islands, would set forth in a separate agreement provisions for “just and adequate settlement” of those claims and that the “separate agreement shall come into effect simultaneously with” the Compact. Id. § 177(b). Section 177(c) provides for a one hundred fifty million dollar grant from the United States to the Marshall Islands for payment and distribution under the separate agreement in satisfaction of those claims. Id. § 177(c).
Article X of the resulting Section 177 Agreement headed “Espousal” provides that the Agreement constitutes full settlement of all the nuclear testing claims, including any then pending or later filed in any court or other judicial or administrative forum “including ... the courts of the United States and its political subdivisions.” Section 177 Agreement, art. X, § 1. Article XII of the Agreement is entitled “United States Courts.” That Article reads, in full, as follows:
All claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.
Id., art. XII.
Congress recognized as much and indeed required the same in the Compact Act. Section 103(g) of that Act expressly states “the intention of the Congress of the United States that the provisions of section 177 ... and the [Section 177] Agreement ... constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)).
It would appear obvious from the plain language of the 177 Agreement and the statute that Congress intended the District Court, and in turn this Court, to have no jurisdiction over claims, such as the ones asserted here, encompassed within the settlement agreement. It is axiomatic in our federal jurisprudence that inferior courts, including the District Court and this Court, have only that jurisdiction afforded them by Congress. Article III, Section 1 of the Constitution established the judicial power in “one supreme Court, and in such inferior
[t]he Constitution has defined the limits of the judicial power of the United States, but has not prescribed how much of it shall be exercised by the [inferior] Court[s]; consequently, the statute which does prescribe the limits of their jurisdiction, cannot be in conflict with the Constitution, unless it confers powers not enumerated therein.
Sheldon v. Sill,
It is simply too late in the day to assert that Congress lacks the power to deprive the inferior federal courts of subject matter jurisdiction over the present claims. The language of the statute and the Agreement are simply too plain to deny that Congress expressed this very intent in the present case.
This power of Congress is particularly plain in the present case, since it involves a matter of sovereign immunity. It is another axiom of our jurisprudence that “the United States may not be sued without its consent.” 14 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3654, at 186 (2d ed.1985), and authorities collected at note 2. While plaintiffs are correct that the Federal Tort Claims Act, 28 U.S.C. § 1346(b), initially provided a waiver of immunity for this tort action, Congress withdrew their consent for this type of claim in ratifying the Compact and the Section 177 Agreement, providing that “all claims described in Articles X and XI of the Section 177 Agreement ... [are] terminated and barred except insofar as provided in the Section 177 Agreement.” Compact Act, § 103(g)(1), 99 Stat. 1782. As the Claims Court noted in the companion litigation, “[a]n unbroken line of decisions holds that Congress may withdraw its consent to sue the Government at any time.” Juda v. United States,
[n]o ... suit [against the United States] may be maintained without the consent of the United States. Such consent, though previously granted, has now been withdrawn. And the power to withdraw the privilege of suing the United States or its instrumentalities knows no limitations.
Id. at 362,
Plaintiffs’ argument against withdrawal of jurisdiction is based on a convoluted interpretation of Section 103(g)(2) of the
[i]t is the explicit understanding and intent of Congress that the jurisdictional limitations set forth in Article XII of [the Section 177] Agreement are enacted solely and exclusively to accomplish the objective of Article X of such Agreement and only as a clarification of the effect of Article X, and are not to be construed or implemented separately from Article X.
Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). Subsection (g) bears the caption “Espousal Provisions.” Article X of the Section 177 Agreement is likewise headed “Espousal.” In international law the doctrine of “espousal” describes the mechanism whereby one government adopts or “espouses” and settles the claim of its nationals against another government. See generally Asociacion de Reclamantes v. United Mexican States,
The short answer to plaintiffs’ argument that this is the meaning of Section 103(g)(2) is: This is not what the statute says. Section 103(g)(1) expresses “the intention of the Congress of the United States that the provisions of [the Compact and the Section 177 Agreement] constitute a full and final settlement of all claims described in Articles X and XI of the ... Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” Pub.L. No. 99-239, § 103(g)(1), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629 (Supp. IV 1986)). The Agreement entered by the Executive and approved by Congress expressly states in Article XII “[a]ll claims described in Articles X and XI ... shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Section 177 Agreement, art. XII. Congress could hardly have spoken more explicitly in stripping jurisdiction. Congress has simply deprived the District Court and in turn this Court of jurisdiction to review these claims. As the Claims Court noted in parallel litigation, “[as] enacted, ... Section 103(g) makes no reference as to the validity of espousal on the basis of either international or constitutional law.” Juda v. United States,
Similarly, as the District Court for the Central District of California noted in other related litigation, if Congress had meant to condition this important international agreement on a review of a fundamental provision therein by the courts, it surely could have included language to that effect. “If Congress wanted to first have the courts test the Compact, it could have said so; instead Congress stripped the court of jurisdiction.” Antolok v. Brookhaven Nat’l Laboratories, Nos. CV 82-2364, CV 82-4978, slip op. at 8 (C.D.Cal. Jan. 6, 1988). Congress has deprived the courts of the United States of jurisdiction over these claims. It did not deprive the courts of jurisdiction over the substance of the claims until after a review of the espousal question; it deprived the courts of jurisdiction. That is the end of the matter. The language of Section 103(g)(2) upon which plaintiffs rely simply makes it plain that the deprivation of jurisdiction applies not to all claims by the Marshall Islanders against the United States, but only those described in Articles X and XI of the Section 177 Agreement. Presumably, any other claim, under the Federal Torts Claims
Plaintiffs attempt to bolster their interpretation of Section 103(g)(2) and the incorporated articles of the Agreement and Compact by a single statement of Congressman Seiberling from the legislative history. Seiberling, Chairman of the House Interior Committee’s Subcommittee on Public Lands, inserted into the Congressional Record a statement that the relevant language
is intended to make it clear that court-stripping provisions in article XII of the section 177 agreement have no independent force or effect and their sole function is to implement the provisions of article X. Thus, if article X is valid, the espousal stands; and if article X is invalid, claims covered by the espousal provision will remain justiciable in U.S. courts, regardless of article XII.
131 Cong.Rec. H11829 (daily ed. Dec. 11, 1985).
Again, the short answer to plaintiffs’ contention is a simple one. As the Supreme Court has repeatedly reminded us, “ ‘[w]hen ... the terms of a statute [are] unambiguous, judicial inquiry is complete except “in ‘rare and exceptional circumstances.’ ” ’ ” United States v. James,
Further, if we do go beyond the language of the statute, we find, as the Supreme Court did in James in construing a statute rendering the United States immune from flood damage claims, that the legislative history of the Compact Act taken as a whole reinforces, rather than contradicts, the plain language of the statute. An earlier version of 103(g)(2) drafted by Congressman Seiberling and passed by the House would have provided:
(2) If, notwithstanding the enactment into law of this joint resolution, a United States court of competent jurisdiction determines that the provisions of Article X of the [Section 177 Agreement] are invalid as a matter of international law or for any other reason, the provisions of Article XII ... shall not, of themselves, prevent any court of the United States otherwise having jurisdiction over claims described in Articles X and XI ... from entertaining such claims; and the time between the effective date of the Compact and subsequent final judicial determination of the invalidity of Article X ... shall not be included in any calculations regarding applicable statutes of limitation. ...
H.R.J.Res. 355, 99th Cong., 1st Sess., § 103(g)(2), 131 Cong.Rec. 20,643 (1985).
In the Compact Act as adopted, Congress retained the House-passed version of Paragraph 1 of Section 103(g), affirming the “full and final settlement,” but completely rewrote Paragraph 2. See Pub.L. No. 99-239, § 103(g)(2), 99 Stat. 1782 (reprinted in 48 U.S.C. § 1681 note at 629-30 (Supp. IV 1986)). The prior version supportive of plaintiffs’ argument for conditional withdrawal of jurisdiction was deleted in favor of the present language of the statute.
Moreover, at least one other speaker on the House floor contradicted the interpretation of the statute offered in Congressman Sieberling’s insertion. Congressman So-larz expressly stated “the compact settles all nuclear claims resulting from our nuclear weapons testing program in Micronesia.” 131 Cong.Rec. 36,039 (1985).
The contradiction between Congressmen Seiberling and Solarz need not dismay us, nor need we seek to resolve it. It may simply remind us once again that
an endemic interplay, in Congress, of political and legislative considerations ... makes it necessary for judges to exercise extreme caution before concluding that a statement made in floor debate, or at a hearing, or printed in a committee document may be taken as statutory gospel. Otherwise, they run the risk of reading authentic insight into remarks intended to serve quite different purposes.
International Bhd. of Elec. Workers, Local Union No. 474 v. NLRB,
While it is only waggishly stated that “where the statutory history is ambiguous we will look to the words of the statute,” our result in this case would be unchanged if that were the proper canon of statutory construction. Congress has stripped the courts of jurisdiction over these claims. We are not surprised, but are bolstered, in our confidence in our interpretation of the statute that the Claims Court in Juda, the Federal Circuit in People of Enewetak and in People of Bikini, and the District Court for the Central District of California in Antolok v. Brookhaven Nat’l Laboratories have all viewed the jurisdictional question consistently with our decision today. See supra note 3.
Before closing our analysis of the statutory bar to jurisdiction, we note that plaintiffs have attempted to shore up their interpretation of the statute by arguing that the literal interpretation of the statute adopted by the District Court and by us herein raises a constitutional difficulty avoided by accepting their more convoluted interpretation. This argument, relying on In re Consol. United States Atmospheric Testing Litigation v. United States,
This argument proves far too much. If we adopted the Ninth Circuit’s language and gave it the interpretation sought by plaintiffs, we would fly in the face of the language quoted above from Lynch and Maricopa County. Indeed, in Lynch, the dicta approving the power of Congress to eliminate claims from the jurisdiction of the courts was pronounced by a Court striking down on Fifth Amendment grounds a statute which, rather than limiting jurisdiction, was, in fact, abrogating obligations of the United States.
We would further note, that even if the legislation amounted to an actual taking of property (and we do not read plaintiffs’ complaint to so state) then the substitution of another remedy is compensation therefor. This is in fact consistent with the Ninth Circuit’s decision in In re Consol. United States Atmospheric Litigation relied on by plaintiffs. There the Court held that the substitution of Federal Tort Claims Act liability for preexisting common law tort liability of government contractors was no violation of the Fifth Amendment.
Since plaintiffs have not alleged a valid constitutional claim over which our Court has jurisdiction, we do not face the difficult question of whether inferior courts may be barred by an act of Congress from review of constitutional challenges to statutes. See Johnson v. Robison,
Chief Judge Wald’s attempt to treat this as a suspect category case simply is without foundation. As far as her reference to the racial “group” to which most plaintiffs “seem[ ] likely” to belong, Wald Op. at 386 -387, there is no indication that this fact, if it is a fact, was known to Congress or material to entry into the Compact or to enactment of the legislation. Indeed, no party to this law suit and no court construing these claims has ever given us the slightest record that the plaintiffs are Asians, Polynesians, or of mixed extraction. This silence is probably due to the fact that that question has nothing to do with the case.
In short, once again, we conclude that we do not face the difficult question of a congressional enactment barring from inferior court review a constitutional challenge, and once again we conclude that the District Court committed no error.
B. Political Question Doctrine
While, of course, our conclusion that the Compact Act incorporating the international agreements expressly stripped the courts of jurisdiction is sufficient to dispose of this appeal, even if we err in our interpretation of that Act, I would not reach the merits but would conclude that the District Court was without jurisdiction over this matter of international relations by reason of the political question doctrine. The law has recognized since 1803 that certain political decisions are by their nature committed to the political branches to the exclusion of the judiciary. In Marbury v. Madison,
In the area of foreign relations, Chief Justice Marshall in United States v. Palmer,
Over the years, the precedent that questions of foreign relations lie within the sphere of political questions committed to the other branches to the exclusion of the judiciary became deeply ingrained. See, e.g., Foster v. Neilson,
Given the sweep of this holding, it might appear that we would be justified in holding that the political question doctrine deprives the judiciary of jurisdiction over the present case without further discussion. However, in Baker v. Carr, the Supreme Court, while recognizing that “[t]here are sweeping statements to the effect that all questions touching foreign relations are political questions [citing Oetjen ] [and that] ... resolution of such issues frequently turn[s] on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature [and] ... many such questions uniquely demand single-voiced statement of the government’s views,” nonetheless, stated that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker v. Carr,
(i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?
Goldwater v. Carter,
First, we must determine whether the decision of the political branches expressed in the Compact negotiated and entered by the Executive and approved by the Legislative Branch is within the area of foreign relations committed by the Constitution to the political branches. As we noted in Ramirez, “[t]he first of these formulations requires the court to determine whether the text of the Constitution implicitly or explicitly commits the stated claim to the political branches. According to the Supreme Court, this necessitates a close textual analysis of specific provisions of the Constitution.” Id. at 1511.
Since this particular matter of foreign relations involves the entry by the United States into an international agreement and the recognition of a new foreign government and receipt by the President of its representatives,
I am guided in this determination by the Supreme Court’s determinations in a series of cases concerning the “Litinov Assignment” between the government of the Union of Soviet Socialist Republics and the United States: United States v. Bank of New York & Trust Co.,
Plaintiffs argue that they are not attacking the recognition, but only the distinct settlement of the claims, not necessarily an incident of recognition. However, to hold as plaintiffs urge would require that we virtually ignore the Supreme Court’s opinion in United States v. Pink. Obviously the cases are factually distinct. The present matter involves a purported “espousal” not amounting to the sort of nationalization involved in Belmont.
Plaintiffs’ arguments against the validity of the 177 Agreement are directed toward perceived improprieties and inequities in the bargaining leading to the agreement. Again, the policy of recognizing nationalization in Pink was no more acceptable to many Americans than is the policy of entering an espousal-dependent settlement of claims by nationals of a trust territory to
As the Pink Court further observed, the power to recognize the government necessarily implies in the President the “[p]ower to remove such obstacles to full recognition as settlement of claims.... Effectiveness in handling the delicate problems of foreign relations requires no less.”
Chief Judge Wald argues that the present controversy falls outside the political question doctrine on the basis of the Supreme Court’s consideration of questions with “potentially substantial impact on foreign relations,” Wald Op. at 391, in Japan Whaling Ass’n v. American Cetacean Soc’y,
While I do not deny that the plaintiffs herein raise good faith objections to the decision of the Executive and while they have every right to disagree with the Executive and Legislative determinations that the settlement was required, was just, or was correct, our deferral to the political branches in political questions is not limited to those where they are correct. It would require our invasion of their sphere for us to make the determination that they were wrong, and it is against that very invasion that the political question doctrine protects the political realm from judicial invasion.
Plaintiffs further argue that, under the second of the three criteria set forth by Justice Powell, this is not a matter beyond the areas of judicial expertise. As plaintiffs view the cause, these are simply questions of tort liability and damages — obviously matters within normal judicial competence. Were we to follow plaintiffs’ view, there would hardly be a political question doctrine left. As this is a tort case, so was Belmont a contract action and Oetjen an action for replevin. Indeed, it is difficult to conceive of a case reaching court that did not have some foundation in legal questions. Yes, this is a tort case. But the doctrine which precludes our review is “ ‘one of “political questions,” not one of “political cases.” ’ ” Committee of United States Citizens Living in Nicaragua v. Reagan,
Thirdly, prudential considerations underline the necessity for the application of the doctrine in this case. The governments of the United States and the Republic of the Marshall Islands, together with the United Nations, have commenced recognition and international relations reference the Marshall Islands based on an agreement entered by the perceived “sole organ” of recognition by the United States Government. As the Supreme Court has repeatedly held, the sensitive considerations of international relations “uniquely demand single-voiced statement of the Government’s views.” Baker v. Carr,
Plaintiffs finally urge that we should be persuaded to find the questions in this cause justiciable since the Supreme Court has adjudicated the validity of an international settlement in Dames & Moore v. Regan,
For the reasons set forth above, we determine that the District Court correctly concluded that it had no jurisdiction over this case. The decision of that Court to dismiss is, therefore, affirmed.
Notes
. For a more complete history of the Congress of Micronesia, the options considered, and the other governments not involved in this litigation, see Juda v. United States,
. The Northern Mariana Islands had obtained commonwealth status in 1976.
. Micronesian Islanders filed similar or parallel claims in the Claims Court and in the Central District of California. The Federal Circuit in People of Enewetak v. United States,
. Article XI is an indemnity provision pledging the government of the Marshall Islands to hold harmless the United States, its agents, employees, contractors, citizens, and nationals from all claims set forth in Article X and any later claims arising out of the same nuclear testing program. The Article further caps the total amount of indemnification at one hundred fifty million dollars.
. Chief Judge Wald in her concurring opinion suggests that our reading of Section 103(g)(2) renders "that section entirely superfluous.” Wald, C.J., Opinion (“Wald Op.”) at 388. This is, in fact, no more accurate than it would be for us to assert that her reading of 103(g)(2) renders 103(g)(1) a nullity. However one reads 103(g)(2), it encompasses the jurisdictional bar of 103(g)(1) and subjects it to the light of the Section 177 Agreement. All this establishes is that Congress could have done in one section what it in fact did in two. That Congress chose not to do so does not inform the reader as to what further intent Congress expressed by adding the disputed "qualification" language of the second section. Chief Judge Wald’s criticism of the Government’s contention that section 103(g)(2) "simply confirms that [Articles X and XII] are to be implemented together, as already required by the terms of the Agreement itself,” Brief for the United States at 16, is even less helpful. For the statute to expressly adopt an intent expressed in the Agreement is not a superfluity but is in fact the granting of force of statute to a provision previously bearing the force of compact or agreement.
. Although we do not rely on this legislative history as essential to our interpretation of the statute, we note that Chief Judge Wald finds our citation of the section-by-section analysis to be "an unconvincing argument.” Wald Op. at 389. She contends that the "final settlement” language means nothing more than that Congress thought its resolution would withstand judicial review rather than that Congress intended its solution to evade judicial review. Her interpretation ignores the further language of the section-by-section analysis that the "Senate and House agreed that an explicit endorsement of the resolution was important,” "[i]n light of the statement made by some more interested in protracted litigation than compensation for the victims of the testing program.” 131 Cong.Rec. 36,468 (1985). Unless it was Congress’s intent in adopting 103(g)(2) that such litigation should be avoided rather than won, this portion of the section-by-section analysis makes no sense. Similarly, we think her reliance on the statement of Congressman Lagomarsino, 132 Cong. Rec. 520 (1986) (Wald Op. at 390), is ill-placed. The Congressman’s expressed expectation that the United States will prevail if challenged in court on the Section 177 Agreement is as consistent with a view that the jurisdiction-stripping provisions will stand constitutional scrutiny, as with the view that the underlying espousal will. His statement is at best ambiguous, since it contains reference not only to the espousal provisions themselves but also the Senate’s section-by-section analysis cited above.
. The only reference to the ethnicity of the plaintiffs known to us is cited in footnote 6 of Chief Judge Wald’s opinion. That is the House Report referencing "six distinct ethnic groups speaking nine different languages.” H.R.Rep. No. 188, Part 1, 99th Cong., 1st Sess. 3 (1985), U.S.Code Cong. & Admin.News 1985, pp. 2746, 2748.
. The cited portion of Baker v. Carr contains a broad, historic outline of the application of the political question doctrine. This history having been furnished by the Highest Court, we will avoid replication except insofar as necessary to the decision of the present case.
. See Compact, tit. one, art. V, 99 Stat. 1806-07.
. The full quotation in Pink deals with settlement of claims of our nationals. The Litinov reasoning, however, fully supports the President’s power to deal with the claims of the nationals of the other governmental party to the Compact.
. The United States in its brief on the political question issue argues in a footnote that the "act of state” doctrine provides an independent basis for affirming the District Court’s dismissal of this case for lack of subject matter jurisdiction. That doctrine counsels that United States courts " ‘will not sit in judgment on the acts ... of another [country] done within its own territory.’ ” Banco Nacional de Cuba v. Sabbatino,
Concurrence Opinion
concurring in judgment only:
Although I agree with my colleagues that the plaintiffs’ suit for damages against the United States should be dismissed, I reach that conclusion by a different route. I believe that Congress did intend that the statutory provisions depriving federal district courts of jurisdiction over the underlying tort suit would be contingent on the validity of the espousal agreement. I also conclude that the plaintiffs’ central challenge to the espousal agreement is suitable for judicial resolution and does not present a political question. In my view, however, the espousal arrangement at issue here is an entirely valid international agreement. I therefore agree that the restrictions on federal jurisdiction should be enforced and the suit should be dismissed.
I. Are the Jurisdiction-Stripping Provisions Dependent on the Validity of the Espousal?
A. Constitutional Concerns
The majority regards the jurisdiction-stripping provisions of the Compact of Free Association Act as separate and apart from the espousal agreement. In my colleagues’ view, the Congress has plenary power to strip the federal district courts of jurisdiction, at least over nonconstitutional claims, whatever the legal status of the espousal. This argument presumes that Congress could constitutionally have withdrawn the government’s consent to suit on these claims even if it had provided no alternative compensation mechanism at all. I find that assumption quite problematic.
The majority’s position rests in large part on the fact that the plaintiffs’ underlying claim for relief sounds in tort. While much controversy surrounds the extent of Congress’ obligation to provide a judicial forum for the vindication of constitutional claims, see, e.g., Bartlett v. Bowen,
Some Supreme Court opinions contain expansive language regarding the power of Congress to reassert the sovereign immunity of the United States. See, e.g., Lynch v. United States,
The government’s position is in essence that, since the United States need not ever consent to be sued for damages, it has absolute authority to define the circumstances under which suit will be permitted. This contention, however, cannot be accommodated with equal protection doctrine generally, which clearly holds that even government “privileges” may not be allocated in a discriminatory manner.
The jurisdiction-stripping language (considered in isolation) does not define a neutral class of claims (e.g., all claims arising from nuclear testing) for which consent to suit has been withdrawn. Nor does it distinguish between citizen and alien,
The dearth of record information concerning the plaintiffs’ racial characteristics —or the existence of ethnic variations within the Micronesian community — does not (as my colleagues suggest, see Majority opinion (Maj. op.) at 378-79) eliminate the danger of invidious discrimination. After all, national origin is itself a suspect basis for government classification. See Hernandez v. Texas,
My colleagues argue that no suspect classification based on national origin exists because an espousal agreement by its very nature can settle only the claims of a particular country’s nationals. See Maj. op. at 379. I agree, but I do not see how this argument can be reconciled with the rest of the majority’s analysis. I readily concede that, within the context of the Compact as a whole, there is an obvious, legitimate, nondiscriminatory reason for singling out this group of potential plaintiffs. The problem lies with the majority’s insistence on reviewing, and approving, the jurisdiction-stripping provision in isolation. My colleagues contend that the espousal and the withdrawal of jurisdiction are sev-erable provisions, and they would uphold the latter without examination of the former. Yet in rebutting the inference of discrimination that a selective withdrawal of jurisdiction would create, they point out that the withdrawal of jurisdiction is only a part of a complex international agreement.
If the jurisdiction-stripping provision of this bill stood alone, it would raise grave constitutional concerns. The class of claims over which federal jurisdiction has been withdrawn has not been defined by neutral criteria. Rather, the statute has identified a very narrow set of claimants, defined on the basis of nationality, most of whom would appear to belong to a racial group which, by traditional equal protection standards, constitutes a suspect class. I certainly do not suggest that the espousal of these claims is an act of racial discrimination; my point is simply that, if the jurisdiction-stripping provisions were reviewed in isolation, the racial composition of the plaintiff class would surely be a relevant concern. I am not prepared to state categorically that the Constitution would forbid Congress to withdraw its consent to suit on these claims without providing an alternative means of redress. I do believe, though, that the constitutional doubts concerning such a statute are strong enough that the Compact of Free Association Act should be construed, if possible, so as to avoid these difficulties. In my view, the petitioners’ construction of the statute — under which the government’s withdrawal of consent to suit is conditioned upon the validity of the espousal — alleviates these constitutional doubts and is fully consistent with both the language and history of the Act.
B. Statutory Language
Section 103(g)(2) of the CFAA states:
It is the explicit understanding and intent of Congress that the jurisdictional limitations set forth in Article XII of such Agreement are enacted solely and exclu*388 sively to accomplish the objective of Article X of such Agreement and only as a clarification of the effect of Article X, and are not to be construed or implemented separately from Article X.
Pub.L. No. 99-239, 99 Stat. 1770, 1782 (1986) (App. I at 101). This language is hardly free from ambiguity. On the one hand, the Senate clearly rejected other wording, originally contained in the House bill, which would have stated unequivocally that the jurisdiction-stripping provisions would apply only if the espousal were held to be valid.
What is most striking, in my view, is the failure of either the majority or the government to suggest a plausible alternative reading of § 103(g)(2). The majority suggests that “[t]he language of Section 103(g)(2) upon which plaintiffs rely simply makes it plain that the deprivation of jurist diction applies not to all claims by the Marshall Islanders against the United States, but only those described in Articles X and XI of the Section 177 Agreement. Presumably, any other claim, under the Federal Tort Claims Act or other authority, could proceed.” Maj. op. at 375-76. With respect, this seems to me most unlikely. Article XII provides that “[a]ll claims described in Articles X and XI of this Agreement shall be terminated. No court of the United States shall have jurisdiction to entertain such claims, and any such claims pending in the courts of the United States shall be dismissed.” Even in the absence of § 103(g)(2), I do not see how this language could possibly suggest that consent to suit was withdrawn as to claims other than those described in Articles X and XI.
Section 103(g)(2) is assuredly not the most straight-forward way of saying that the withdrawal of federal jurisdiction was contingent upon judicial validation of the espousal provisions. But I fail to see what else § 103(g)(2) could mean. Rather than assume that this section is a nullity — that it either says nothing at all or else repeats what is already clear from other portions of the statute — I would read this language to provide that a valid espousal is a neces
C. Legislative History
The legislative history offers only slight assistance in resolving the interpretive questions at issue here. Unlike the majority, however, I believe that this history supports rather than undermines the plaintiffs position.
The plaintiffs rely heavily on the following statement of Representative Seiberling:
[Section 103(g)(2) ] is intended to make it clear that court-stripping provisions of article XII of the section 177 agreement have no independent force or effect and their sole function is to implement the provisions of article X. Thus, if article X is valid, espousal stands; and if article X is invalid, claims covered by the espousal provisions will remain justiciable in U.S. courts, regardless of article XII.
131 Cong.Rec. H11,829 (daily ed. Dec. 11, 1985) (App. II at 609).
The statements of a single Representative constitute pretty scanty evidence, but the government has offered little in response. The government and the majority rely heavily on statements to the effect that the Compact was intended to provide a comprehensive settlement of tort claims stemming from American nuclear testing in Micronesia. Representative Solarz, a sponsor of the Act, stated that “the compact settles all nuclear claims resulting from our nuclear weapons testing program.” 131 Cong.Rec. H11,836 (daily ed. Dec. 11, 1985) (App. II at 616). The section-by-section analysis of the Compact Act stated that § 103(g) “reiterates the provisions of Section 177 of the Compact which provides that there is full and final settlement of all nuclear effects claims.” 131 Cong.Rec. S17,651 (daily ed. Dec. 13, 1985) (App. II at 621). Both the government and the majority view these statements as evincing a congressional intention to shield the espousal provisions from judicial review. See Brief for United States at 20; Maj. op. at 377.
In my view this is an unconvincing argument. If Congress enacted legislation dealing with a knotty banking problem (for example), and if the relevant committee reports described the statute as a “final settlement” or “comprehensive solution” to the problem, no one would suppose that Congress thereby intended to preclude judicial review. In the present case, a Congressperson who believed that the espousal provisions were judicially reviewable, but that they would ultimately be upheld in court, might very easily state that the Compact would constitute a “full and final settlement.” In fact, Representative Lago-marsino — a supporter of the Compact Act on whose views the government relies, see Brief for United States at 20-21 — expressed essentially this view:
*390 If the section 177 agreement is challenged in the courts, it is the view of the Department of Justice and the Department of State, whose representatives testified on the section 177 agreement during our hearings on the compact, that the United States will prevail and that the constitutionality of this agreement will be affirmed.
132 Cong.Rec. 520 (January 23, 1986) (extension of remarks) (App. II at 624). In short, I see no conflict between Representative Solarz’s view that “the compact settles all nuclear claims” and Representative Seiberling’s assurance that the espousal provisions “are subject to judicial review like any act of Congress.” It is surely the norm that Congress, when it passes legislation, will expect both that the new statute will be challenged in court, and that the law will survive judicial review and thereafter fulfill its stated purpose.
Finally, I think that the plaintiffs’ position is supported by the logic of the situation. This is not a case in which Congress first decided to strip the courts of jurisdiction and then looked around to see what might be done to lessen the hardship of the Marshall Islanders. Rather, the espousal and jurisdiction-stripping provisions appear to have been regarded throughout the process as integrally connected. Given this background, it is hard to imagine that Congress would have wished the jurisdiction-stripping provisions to take effect even if the espousal provisions were invalidated.
The majority concludes that the withdrawal of jurisdiction over these claims should be viewed as standing alone, and should be affirmed on this basis. In light of the serious constitutional difficulties that would attend such a selective denial of judicial relief, I would hesitate to interpret the statute in that way if another plausible reading is available. In my view, both the language and the history of the Compact Act support the plaintiffs’ contention that their suit for damages should be dismissed only if the espousal is found to be valid.
II. Does the Validity of the Espousal Present a Political Question?
Judge Sentelle also states that “even if we err in our interpretation of [the Compact] Act ... the District Court was without jurisdiction over this matter of international relations by reason of the political question doctrine.” Sentelle opinion (Sen-telle op.) at 379. My colleague does not, however, follow through with the implications of that statement. For if Judge Sen-telle has erred in his interpretation of the Compact Act, then Congress has in fact provided by statute that the validity of the jurisdiction-stripping provisions is to be contingent on a judicial assessment of the espousal. The political question doctrine can furnish a true alternative rationale only if my colleague is willing to say that judicial intervention in this area is constitutionally forbidden even if Congress has invited the courts to play a role. If we assume that the Compact Act provides for judicial review of the espousal, then judicial review is not, in my view, an untoward intrusion into the political branches’ negotiation of international agreements. Rather, the courts, by reviewing the espousal, would (as plaintiffs’ counsel put it at oral argument) simply be enforcing the agreement according to its terms.
Leaving that point aside, I believe that Judge Sentelle’s political question analysis is deeply flawed. My colleague appears to assert two distinct bases for finding this to be a political question: (1) that the issues presented are unsuitable for judicial resolution; and (2) that the political branches’ conduct of foreign policy would be undermined if the court were to review the espousal. The first argument rests on a misunderstanding of the plaintiffs’ claims; the
A. Suitability of the Issues for Judicial Resolution
If the plaintiffs were attacking the espousal on the ground that the purported government of the Marshall Islands was not truly sovereign, then I would agree that a political question had been posed. Plaintiffs, however, have expressly disavowed such a challenge. See Brief for Appellants at 12. As I discuss at greater length infra, I also believe that any challenge to the adequacy of the settlement is nonjusticiable. Plaintiffs’ central contention, however, is that the espousal is invalid because international law forbids the espousal of claims held by persons who were not nationals of the espousing state at the time the claims arose. That issue seems to me entirely suitable for judicial resolution.
To accept the plaintiffs’ argument, we must accept three distinct propositions: (1) that the withdrawal of jurisdiction is contingent on the validity of the espousal; (2) that the espousal is invalid as a matter of domestic law if it contravenes international law; and (3) that under international law a state may espouse only the claims of individuals who were its nationals when the claims arose. My colleague may disagree with each of these propositions, but I cannot fathom how any one of them could be deemed unfit for judicial resolution. Each is a pure question of law which requires no foreign policy expertise and implicates no uniquely political concerns.
B. Interference With the Political Branches
My colleague also argues that this issue raises a political question because, by undermining the relationship between the governments of the United States and the Marshall Islands, it may interfere with the political branches’ conduct of foreign relations. This argument, in my view, sweeps much too broadly. In Baker v. Carr,
There exists, in fact, a long line of Supreme Court cases resolving on the merits legal issues with highly significant implications for foreign affairs. In Youngstown Sheet & Tube Co. v. Sawyer,
The central principle, cited but (in my view) misconstrued by my colleague, is that “[t]he doctrine of which we treat is one of ‘political questions,’ not one of ‘political cases.’ ” Baker v. Carr,
III. Is the Espousal Valid?
Having concluded that the jurisdiction-stripping provisions of the Compact Act are contingent upon the validity of the espousal, and that the plaintiffs’ central challenge to the espousal is justiciable, I proceed to the merits of the plaintiffs’ challenge. Plaintiffs assert three distinct attacks on the espousal provisions of the Compact Act.
A. Adequacy of the Settlement
The plaintiffs assert that the espousal should be invalidated because the amount of the settlement — $150 million — is inadequate in comparison to the injuries that they have suffered. They invoke concepts of trusteeship and fiduciary duty in arguing that the United States Government owes a continuing obligation to the residents of the Marshall Islands. In my view, however, this court is precluded from inquiring into the adequacy of the settlement.
Whatever the prior relationship between the United States Government and the people of the Marshall Islands, under the Compact it is the Marshall Islands Government which must protect the interests of its residents. Once we acknowledge the power of the Marshall Islands Government to espouse these claims, then any dispute as to the adequacy of the settlement must be recognized as in substance a dispute between the plaintiffs and their own government. Such a dispute would seem to lie beyond the purview of this court, both because this court lacks the authority to inquire into the adequacy of another government’s representation of its own people, and because the United States Government cannot in any event be held responsible for another government’s failings. Nor is this transformed into a claim against the United States by the contention that the United States Government has “coerced” a favorable settlement. The American Government, after all, typically bargains from a position of strength; and I see no basis on which this court could scrutinize international agreements and inquire into the ade
Moreover, any inquiry into the adequacy of the settlement figure would require, in essence, that the district court try the lawsuit. The adequacy of the settlement, after all, depends both on the extent of the plaintiffs’ injuries — a very difficult determination in itself
B. Takings Claim
The plaintiffs also contend that the espousal is invalid because it constitutes a taking of property without just compensation, and thus violates the fifth amendment.
C. International Law Claim
The plaintiffs’ principal claim is that the espousal provisions violate international law because the individuals whose claims were settled were not nationals of the Marshall Islands at the time the injuries occurred.
The first argument is based on congressional intent. Plaintiffs appear to concede that Congress may, if it wishes, pass a statute which contravenes customary international law, and that federal courts in such a circumstance are obliged to give effect to the statute. But in plaintiffs’ view Congress, by negotiating an international agreement in accordance with international legal processes, and by using the technical term “espousal,” has signaled its intention that the Compact Act should be reviewed on the basis of international law. Thus, plaintiffs do not argue that customary international law can supersede the will of Congress; they simply contend that application of international law is essential to a proper construction of the Compact Act.
In advocating this interpretation of the statute, the plaintiffs rely on the Supreme Court’s recent statement that “[i]t has been a maxim of statutory construction since the decision in Murray v. The Charming Betsy,
In the end, though, I think it is unnecessary to determine whether international law applies, because in my "view the espousal does not violate international law. The plaintiffs are correct in stating that espousal agreements are typically limited to the settlement of claims held by persons who were nationals of the espousing country at the time the claims arose. But I think the government is correct in arguing that this is a matter of custom rather than a binding rule, and that no international legal norm forbids countries from agreeing to the espousal of claims held by individuals who do not meet the strictures of the continuous nationality rule. See, e.g., 1 G. Schwarzenberger, International Law 594 (3d ed. 1957) (App. II at 767) (“Like any other rule of international customary law, the rule on the nationality of claims may be modified or abrogated by means of treaties.”). See also 1 R. Lillich and B. Weston, International Claims: Their Settlement by Lump Sum Agreements 48-50 (1975) (App. II at 742-43).
An understanding of the reason for the general custom shows why it is of no help to the plaintiffs in this case. General acceptance of the continuous nationality rule is a principle of relations between nations. It prevents one nation from exerting undue pressure on another by espousing the claims of individuals to whom it bears only a tenuous relationship. It also removes incentives for individuals to change nationality in order to gain the assistance of a powerful state. Neither of these concerns is implicated in the present case. Rather, plaintiffs’ quarrel with the espousal is at bottom a quarrel with their own government. But the rule concerning the nationality of claims — like international law gen
IV. Conclusion
Although I, like my colleagues, conclude that the district court lacked jurisdiction to address the plaintiffs’ claim for damages under the FTCA, the difference between my approach and theirs seems to me sufficiently important to justify a separate opinion. Despite the broad dictum in some Supreme Court decisions, I am troubled by the majority’s uncritical assumption that Congress may deprive a narrow class of plaintiffs of judicial relief, even if their claims are nonconstitutional. The interplay between the very broad congressional control over federal jurisdiction (particularly in the context of damage suits against the United States), and the fundamental requirement that access to the federal courts must be granted on a nondiscriminatory basis, would seem to me to pose a difficult constitutional question. I hesitate to address this question absent clear evidence that Congress did in fact intend to effect an unconditional withdrawal of jurisdiction.
In my view, no such evidence is present in this case. Rather, it appears to me that the jurisdiction-stripping and espousal provisions of the Compact Act were consistently thought of as parts of a package. Congress did not seriously consider enacting one without the other, and it seems artificial to review the withdrawal of jurisdiction as though it stood in isolation. I believe that Congress intended that the withdrawal of jurisdiction should be contingent on judicial approval of the espousal mechanism. However, because I find no infirmity in the espousal, I conclude that the withdrawal of federal jurisdiction was valid and that the plaintiffs’ claims for damages were properly dismissed.
. The presence of constitutional doubts concerning the power of Congress to withdraw federal jurisdiction over constitutional claims is not, however, entirely irrelevant to the present case. The Compact Act espoused, and withdrew federal jurisdiction over, constitutional as well as nonconstitutional causes of action. Under the majority’s construction of the statute, the jurisdiction-stripping provisions are to be implemented without regard to the propriety of the espousal. My colleagues thus impute to Congress the view that the federal courts may be stripped of jurisdiction over constitutional claims even if no alternative remedy is provided. Admittedly, our resolution of this tort suit does not require us to decide whether Congress actually possesses such power. But in interpreting the statute, we should not lightly presume that Congress intended to take so constitution?' ly problematic a step.
. The Supreme Court "now has rejected the concept that constitutional rights turn upon whether a governmental benefit is characterized as a ‘right’ or as a ‘privilege.’ ’’ Graham v. Richardson,
. Cf. Lindsey v. Normet,
. In my view a law providing that "citizens may sue the United States for damages, but aliens may not” would be far less constitutionally suspect than a law providing that ."aliens of British ancestry may sue the United States for damages, but aliens of Japanese ancestry may not."
. The Federal Tort Claims Act contains a foreign claims exception. See 28 U.S.C. § 2680(k).
. The record contains no precise delineation of the racial or ethnic characteristics of the plaintiff class. One House committee report states that "[t]he Trust Territory of the Pacific Islands, commonly referred to as Micronesia, consists of over 2,000 islands scattered over 3 million square miles of oceán. The population of 130,-000 live on some 100 islands and consist of six distinct ethnic groups speaking nine different languages.” H.R.Rep. No. 188, Part 1, 99th Cong., 1st Sess. 3 (1985), U.S.Code Cong. & Admin.News 1985, pp. 2746, 2748 (App. I at
. Section 5(n)(2) of the House bill provided that: "If, notwithstanding the enactment into law of this Act, a United States court of competent jurisdiction determines that the provisions of Article X of the Agreement ... are invalid as a matter of international law or for any other reason, the provisions of Article XII of the Section 177 Agreement shall not, of themselves, prevent any court of the United States otherwise having jurisdiction over claims described in Article X and XI of the Section 177 Agreement from entertaining such claims; and the time between the effective date of the Compact and any subsequent final determination of invalidity of Article X of the Section 177 Agreement shall not be included in any calculation regarding applicable statutes of limitations or other similar limitations pertaining to the presentation of any such claims to any such court.” Reprinted in H.R.Rep. No. 188, Part 2, 99th Cong., 1st Sess. 79 (1985), U.S.Code Cong. & Admin.News 1985, p. 2746 (App. I at 411).
. Section 103(g)(1) of the Act states: "It is the intention of the Congress of the United States that the provisions of section 177 of the Compact of Free Association ... constitute a full and final settlement of all claims described in Articles X and XI of the Section 177 Agreement, and that any such claims be terminated and barred except insofar as provided for in the Section 177 Agreement.” 99 Stat. 1782 (App. I at 101). It seems to me that the statute, like the Agreement, quite clearly restricts the withdrawal of jurisdiction to the claims described in Articles X and XI.
. Representative Seiberling also stated: "The House bill also included language specifying that should article X of the section 177 subsidiary agreement be held invalid, article XII of that agreement would have no effect; while this language has been somewhat revised, the new revision is to the same effect.” 131 Cong.Rec. H11,829 (daily ed. Dec. 11, 1985) (App. II at 609).
. The Congressman went on to say that "a legacy of the unique relationship of the United States to the Marshall Islanders under the U.N. trusteeship agreement will be the pending constitutional questions with respect to their rights, questions which cannot be foreclosed from court review.” 131 Cong.Rec. H11.838 (daily ed. Dec. 11, 1985) (App. II at 618).
. The interpretive problem posed here might be characterized as a question concerning the severability of statutory provisions. To give independent effect to the jurisdiction-stripping language, we must conclude both that this provision would be constitutional in isolation, and that Congress would have wished to withdraw federal jurisdiction even if the espousal were deemed invalid. See Lynch, supra,
. Congress, it might be noted, has been quite inconsistent in its defense of the settlement figure. The report of the House Committee on Foreign Affairs stated that “[t]he compact is also very much in the economic interests of the United States.... At the present time, there are approximately $5 billion in nuclear claims suits pending against the U.S. Government. Without the settlement contained in the compact, these suits will proceed, and it is quite possible that adverse decisions will be handed down against the U.S. Government that will cost it, and thus the taxpayer, considerably more than $150 million.” H.R.Rep. No. 188, Part 1, 99th Cong., 1st Sess. 5 (1985) U.S.Code Cong. & Admin.News 1985, pp. 2746, 2750 (App. I at 183). Later in the same document, the Committee defended the settlement on the ground that "it is entirely possible that if there were no settlement in the compact and all the court cases proceeded to decisions, that the people on the four atolls might receive less than the $150 million we have agreed to provide as a settlement.” Id. at 9-10 (App. I at 188).
. As the government’s brief points out, "plaintiffs would be required to individually prove specific injuries caused by exposure to radiation. This burden of proof would be made more difficult here by the problems of distance, language, and illiteracy encountered in communicating with thousands of plaintiffs scattered across hundreds of miles throughout the islands." Brief for United States at 25 n. 14.
. Plaintiffs in these suits “would face a multitude of jurisdictional defenses, including the discretionary function exception (28 U.S.C. 2680(a)), the foreign claims exception (28 U.S.C. 2680(k)), the statute of limitations (28 U.S.C. 2401(b)), and the administrative claim requirement (28 U.S.C. 2675(a)).” Brief for United States at 25 n. 14.
. This takings claim should be distinguished from the takings claim at issue in People of Enewetak v. United States,
. The broadest form of the rule on nationality of claims is the continuous nationality rule, which requires that a claim be held continuously by a national of the espousing state from the time of the injury to the time of the espousal.
. The court in Nicaragua distinguished between "customary” and “peremptory" norms of international law, and left open the possibility that "peremptory” norms might supersede domestic law. "Peremptory” norms are those principles of international law deemed so fundamental that no deviation from them is permitted. The Nicaragua court cited “genocide, slavery, murder, torture, prolonged arbitrary deten
. In certain limited areas, international law does restrict the authority of governments over their own people. See, e.g., Filartiga v. Pena-Irala,