Hofstra Horizons Research

A New World (Court) Order?

Julian Ku
Professor of Law and Associate Dean for Faculty Development

A New World (Court) Order?

In recent years, the U.S. SupremeCourt has made a number of important and potentially landmark decisions implicating international relations and international law. Two of the most important of these decisions examined the legal effect of an international court’s judgment within the American legal law. In Sanchez-Llamas v. Oregon and Medellin v. Texas, the SupremeCourt considered petitions seeking to use judgments made by the UnitedNations’ principal judicial organ, theInternational Court of Justice, to set aside or order a new trial for individuals convicted under American law.

The importance of this question is hard to overstate. Although the United States has participated in forms of international adjudication from its earliest history,1 the Supreme Court had never before directly considered the domestic legal significance of judgments issued by international courts. And in the next few years, U.S.courts increasingly will be asked to enforce judgments by international tribunals and courts. In just the past decade, the U.S. government has been the subject of three adverse judgments issued by the International Court ofJustice.2 The United States has also lost numerous adverse judgments before the dispute resolution tribunals set up under the World Trade Organization and theNorth American Free Trade Agreement.3Indeed, the United States is obligated to undergo binding international dispute resolution by hundreds of treaties and international agreements. It is likely that litigants will seek to enforce the judgments of such international courts and tribunals directly in U.S. courts.

Many legal scholars welcome the increasing frequency and interaction ofU.S. courts with international courts and tribunals. Some leading scholars have argued that the interaction between international tribunals and domestic courts can form a central component of a new international order characterized by respect for and submission to international law and international institutions. Their arguments have been reflected in both the briefs filed in recent Supreme Court decisions as well as in dissents from key justices on the Court.

I use the phrase “new world court order” to describe the intersection of two phenomena: the growth and importance of international courts and tribunals and the effort to enforce the judgments of international tribunals in domestic courts. In my view,encouraging and even requiring U.S.courts to give domestic effect to international court and tribunal judgments would create difficulties as a matter of U.S. constitutional law. The power to enforce international tribunal judgments, I believe, is properly understood to fall within the foreign affairs power, and not the judicial power, of the U.S. government. As such, the most politically accountable branches of the U.S. government, the president and Congress, are the only institutions constitutionally authorized to determine how or whether to implement an international court or tribunal judgment within the U.S. legal system.

There is a longstanding doctrine of U.S.constitutional law that might help govern the relationship between the U.S.legal system and international courts and tribunals. The “nondelegation” doctrine limits the excessive delegation of authority by one branch of the U.S.government to another. The doctrine is most commonly invoked with respect to legislative delegations to executive agencies, but it can also be used in other contexts. I argue that direct enforceability of international court and tribunal judgments could constitute an impermissible delegation of the U.S.foreign affairs power to international tribunals.

To be sure, even in the domestic sphere,the nondelegation doctrine is better known for its under enforcement than for its role as a serious constitutional constraint. Nonetheless, there are reasons to treat delegations to international courts and tribunals differently. Unlike delegations to domestic institutions, international delegations involve transfers of legal authority to international institutions over which the politically accountable branches of the federal government have fewer mechanisms of control.

Adhering to a nondelegation doctrine with respect to international courts and tribunals would not necessarily result inU.S. courts invalidating treaties and other international agreements. While the United States is party to hundreds of international agreements committing it to binding dispute resolution before international tribunals, the vast majority of those agreements are already enforced solely by either Congress or the president. The pattern of U.S.practice has relied heavily on the president and, to a lesser extent, onCongress and the states, to determine how or whether to comply with adverse international tribunal judgments.Absent specific authorization byCongress, no court has yet held that any of these treaties and agreements authorize domestic courts to enforce international tribunal judgments.

In this way, the nondelegation doctrine will become important as a rule of treaty interpretation, forcing accountability from U.S. political decision makers for the actions of an international court or tribunal. Before aU.S. court gives an international tribunal’s interpretation of a treaty’s immediate domestic effect, an application of the nondelegation doctrine as an interpretive rule will require a clear statement in the treaty that the court’s or tribunal’s interpretations are intended to have such immediate domestic effect within the United States. Such a clear statement requiring judicial enforcement can be found in theConvention on the Law of the Sea currently awaiting ratification by theU.S. Senate.4 Alternatively, a clear statement might be found in congressional legislation implementing the treaty, or in an executive order made by the president. Such a clear statement was lacking, according to theSupreme Court, in the Medellin v. Texasdecision.

Although there is ample doctrinal and historical support for this approach, I also offer three functional justifications for requiring a clear statement before recognizing treaty delegations to international courts and tribunals.

First, a clear statement rule forces theU.S. political branches to take responsibility for complying with international tribunal judgments.Without such a clear statement rule,U.S. treaty makers can allocate controversial or difficult decisions to international tribunals and then avoid responsibility for the consequences of their delegations. With such a rule,such difficult decisions will remain the responsibility of the political branches.

Second, a clear statement rule bolsters the legitimacy and authority of international court and tribunaljudgments. International courts and tribunals, like other international organizations, are likely to suffer from a“legitimacy” deficit due to their nondemocratic character. But requiring action by the executive or legislative branches arms such decisions with the full political and legal legitimacy of the most democratic parts of the U.S.government. Critics of such judgments will be forced to confront the merits of the court or tribunal judgments rather than simply questioning such a court’s or tribunal’s authority.

Third, in addition to forcing political branches to take responsibility for controversial decisions, a clear statement rule will also empower the political institutions most likely to be competent and effective in assessing whether and how to comply with that international court or tribunal judgment. Unlike courts, the executive and legislative branches have substantial functional expertise and experience in the administration of international relations that they can bring to bear on such questions. As a review of historical and modern U.S.practice with respect to compliance with international tribunal judgments reveals, the political branches are fully capable of complying with international tribunal judgments through legislative and/or executive action.

The frequency and scope of U.S.relationships with international courts and tribunals are likely to increase in the next few years. Developing a practical but flexible limitation on such relationships and ensuring the dominance of the most politically accountable branches of the U.S.government can ensure that international courts and tribunals coexist with sound constitutional values.

Endnotes

1Treaty of Amity, Commerce, andNavigation (the Jay Treaty), art. VI (1795)(appointing five commissioners empowered to settle claims arising out of U.S.Revolutionary War).

2Case Concerning Avena and other MexicanNationals (Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31); LaGrand Case(F.R.G. v. U.S.) (Judgment of June 27,2001); Case Concerning the ViennaConvention of Consular Relations (Para. v.U.S.) (Provisional Measures Order of April 9, 1998), 1998 I.C.J. 248 (April 9).

3See, e.g., In the Matter of Certain SoftwoodLumber Products From Canada, FinalAffirmative Countervailing DutyDetermination, USA-CDA-2002-1904-03(December 1, 2004) (finding U.S. duties onCanadian softwood lumber in violation ofNorth American Free Trade Agreement);Report of the Appellate Body, United States– Sunset Review of Anti-Dumping Duties onCorrosion-Resistant Carbon Steel FlatProducts From Japan (WT/DS244/AB/R)(finding U.S. duties on steel violation ofWTO and GATT agreements); Report of theAppellate Body, United States – TaxTreatment for “Foreign Sales Corporations”(Jan. 14, 2002), 2002 WL 44907 (W.T.O.)(finding U.S. tax code provisions on foreign sales corporations violation of WTO andGATT agreements); Report of the Panel,United States – Import Prohibition ofCertain Shrimp and Shrimp Products(WT/DS58/R/Corr.1) (finding U.S. marine mammal protection act in violation of WTOand GATT agreements).

4See UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, Annex VII,art. 39.

References

Ku, Julian G. (2007). Sanchez-Llamas v.Oregon: Stepping Back from the NewWorld Court Order, 11 LEWIS &CLARK L. REV. 17.

Ku, Julian G. (2006). InternationalDelegations and the New World CourtOrder, 81 WASH. L. REV. 1.

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