The Advantages of Non-Judicial Enforcement of International Court Decisions
I’m very grateful to Tomer Broude (travel safely, Tomer!) both for organizing this APSA roundtable as well as suggesting this online “preview.” I’ve enjoyed all of the terrific contributions of the APSA attendees and look forward to hashing some of these questions out in person on Friday. Indulging my prerogative as a co-host (at least in the blogosphere), I want to both respond to some of the earlier posts and then offer my own thoughts on the roundtable topic.
This is a great question that implicitly challenges a realist or rational choice paradigm of international relations because such a paradigm has a difficult time explaining the rise of international tribunals that sometimes enforce private party rights against the wishes of states.
While I certainly don’t have an answer to this question, I can point to one possible answer offered in the recently published “The Limits of Leviathan” by Paul Stephan and Robert Scott. In their view, states may choose to “formalize” international law enforcement through international tribunals for many of the same reasons private parties choose to formalize “cooperation” through contracts. That is to say, states use international law and formal international law enforcement mechanisms in order to demonstrate their responsibilites and their willigness to make binding commitments. This view, which I can’t do full justice to here, seems promising, at the very least. Moreover, along with Larry and Kal, it asks the right question: “why do states create international tribunals?”. Too many international law scholars never bother to ask this fundamental question before jumping to their normative case in favor of more and stronger versions of such tribunals.
(2) Like Tom, however, my focus at this roundtable is on the relationship between national courts and international tribunals, particularly efforts to require national courts to formally adhere to decisions made by international courts.
The U.S. Supreme Court’s recent decision in Sanchez Llamas v. Oregon provides a nice case study of the broader systemic relationship between national courts and the permanent international courts like the ICJ. In Sanchez-Llamas, the U.S. Supreme Court held that federal courts owed “respectful consideration” of the ICJ’s views, but that it could still reject those views (which it did without much difficulty).
As loyal readers of this blog may know, I believe this approach is necessary as a matter of U.S. domestic law (and I’ve even grinded out a whole law review article on it here). But for the purposes of this roundtable, it is also worth offering an explanation as to why states might enter into a international dispute settlement system like the ICJ that does NOT require domestic judicial enforcement.
At least traditionally, international tribunals like the ICJ rely heavily on enforcement by political rather than judicial domestic organs. Such a system conforms more closely with the origins of the ICJ in the international arbitration system, where rules bind only parties to the actual arbitration and general principles articulated in a decision may be influential, but are never formally binding.
States that shift from this traditional discretionary “political” enforcement to formalized “judicial” enforcement are making a very big commitment. Not only are they entering into a commitment to bind themselves to the resolution of particular disputes by an international tribunal (as in arbitration), but they are also subjecting themselves to the development of broader legal principles articulated by that international tribunal that bind them to commitments outside of the particular dispute over which the tribunal has asserted jurisdiction.
That possibility was raised by the ICJ’s increasingly aggressive performance in the trilogy of Vienna Convention cases against the U.S. By the end of the third ICJ decision, the ICJ had asserted a broad power to not only issue binding interpretations of the Vienna Convention on Consular Relations in a particular case, but also to require particular domestic remedies for certain VCCR violations in any future case, even if brought by a different country, as long as it involved capital or other severe punishment. The ICJ’s invention of a broad “capital punishment” addendum to the consular relations treaty, when combined with the “domestic judicial remedy” requirement, was surprising enough. To then claim it was also a general principle binding all future consular relations cases is overreaching, requiring the U.S. to undertake obligations far beyond what it had bargained for when it entered into the original ICJ Statute and VCCR protocol.
Many of these problems can be resolved by keeping domestic judicial courts out of the process of enforcing international tribunal judgments. If an international tribunal overreaches, as the ICJ arguably did here, then a political decision to ignore or limit the decision can be made. Or the political decision to go along with the decision might also be made if the new norms are attractive and advantageous. Such on/off decisions can’t be made by domestic courts, at least not very easily, and not without undermining what makes independent domestic courts attractive in the first place.
This is not to say that domestic courts will never play a meaningful role in the implementation of international tribunal judgments. My main point here is that when domestic courts are allocated such power, this represents a tremendous commitment that departs from traditional understandings of how international courts like the ICJ operate. For this reason, such commitments are rarely undertaken. And if they are, they need a clearer legal and political foundation than was provided by the ICJ and the Vienna Convention on Consular Relations.