The Advantages of Non-Judicial Enforcement of International Court Decisions

by Julian Ku

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.

One Response

  1. Julian,

    Thanks for your interesting post. Your second point raises the issue of judicial activism by international courts. As Allison Danner’s recent post suggests, states sometimes create tribunals whose formal structures (such as independence, tenure, and access to the tribunal by private parties) increase their propensity for gap filling and for interpreting treaties to achieve their underlying objectives. Whether such rulings are activist or not, however, depends in part on whether the states that founded the tribunal intended it to engage in these functions.

    It’s also possible to measure activism by how states respond to expansive judicial rulings. The United States demonstrated its dissatisfaction with the ICJ’s Vienna Convention on Consular Relations trilogy by withdrawing from the Optional Protocol granting jurisdiction to the ICJ to resolve disputes over the meaning of the VCCR. This and other examples of “Exiting Treaties” are one way that a state can express its displeasure with an international court that has expanded its authority beyond politically palatable boundaries.

    But the option of formal withdrawal from a treaty or from a clause granting a court jurisdiction seems to undermine your claim that domestic courts should be kept out of the compliance process with respect to decisions issued prior to withdrawal. That is, if a judgment, by its own terms, is binding on the parties to the dispute and part of that judgment has consequences for domestic law, then I can see a plausible argument for domestic courts to be involved in the compliance process until such time as the executive and/or legislature exercises its discretion to withdraw from the court’s jurisdiction. The line isn’t entirely clear, however, since I believe Chief Justice Roberts in Sanchez-Llamas mentioned the US withdrawal as a factor in deciding that “respectful consideration” to the Avena judgment did not require review and reconsideration of the convictions and sentences.

    Looking forward to talking more about this at the roundtable tomorrow.


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