Medellin and The Continuum of Deference to International Tribunals

by Roger Alford

I read with great interest the transcript of the oral argument in Medellin yesterday. From my perspective Justice Breyer had the best grasp of the potential impact of this case on international adjudication. Several times Justice Breyer asked about whether the rule we apply in this case will also adversely affect our recognition of decisions of other international tribunals and arbitral bodies (pp. 45-46):

Mr. Cruz [on behalf of Texas]: … [I]f the treaty purported to give the authority to make binding adjudications of Federal law to any tribunal other this Court, that it would violate Article III of the Constitution.

Justice Breyer: Fine. Then, are you saying there are … 112, I believe, teaties in which we’ve entered into promises that we’re going to follow what an international tribunal said…. All of these … treaties are unlawful, and that our promises are not enforceable, because there’s a constitutional question?… I’m thinking … like WTO, NAFTA. We can go down a long list of instances where the United States has promised to follow the decisions of tribunals that are not Article III courts and put them into effect at once…. Are you saying that all those are unconstitutional?

Other justices seemed quite fearful of the possibility that international tribunal decisions would have precedential effect, would bind United States courts as to the meaning of federal law (particularly U.S. treaties), and that international tribunals would make legal errors and/or exceed their jurisdictional authority. (pp. 4-5, 26-27, 31, 55-56, 78). Of course, all of those concerns are not unique to the International Court of Justice, and could apply with equal force to decisions about the meaning of federal law rendered by other international tribunals and arbitral bodies.

I am not particularly fearful that the Court will display hostility to the entire system of international adjudication, despite some of the questions that might so suggest. Every member of the Court has embraced a liberal deference to third-party adjudication pursuant to the Federal Arbitration Act. International arbitral bodies make legal errors regarding federal law occasionally, but federal courts nonetheless uphold their decisions as between the parties to the decision. And courts protect against international arbitral tribunal excesses by not enforcing a decision that exceeds a tribunal’s jurisdiction. I find it inconceivable that Medellin will completely undermine the Court’s historical embrace of third-party adjudication of federal law.

As I have written in this article, federal courts have adopted varying degrees of deference to decisions of international tribunals. As for direct enforcement and recognition between the parties, it largely depends on what federal law says the federal courts should do with the international judgment. Here is a brief outline of the “continuum of deference” that federal courts have shown to decisions of international tribunals.

At one extreme is the full and faith and credit model, in which a federal statute (22 U.S.C. 1650a) mandates that “the pecuniary obligations imposed by an [ICSID tribunal] award shall be given the same full faith and credit as if the award were a final judgment of a court of general jurisdiction of one of the several States.” It is possible that Article 94 of the U.N. Charter and Article 59-60 of the ICJ Statute could be interpreted in a similar manner as a federal mandate to recognize the ICJ decision as between the parties.

A second approach is the arbitration model, in which a federal statute (the FAA) implementing the New York Convention requires recognition of international tribunal judgments (like the Iran-U.S. Claims Tribunal), unless one of the procedural errors outlined in Article V of the treaty are present.

A third model is the foreign judgment model, in which international court judgments are recognized subject to the Hilton v. Guyot limitations. The Supreme Court has treated decisions of one international tribunal, the U.S.-Mexican Claims Commission, in a manner similar to foreign judgments. As the Court put it in La Abra, “an award by a tribunal acting under joint authority of two countries is conclusive between the governments concerned and must be executed in good faith unless there be ground to impeach the integrity of the tribunal itself.”

The last significant model for direct enforcement is the Charming Betsy model. In the WTO context, the implementing legislation (the Uruguay Round Agreements Act) authorizes the executive branch to decide whether to enforce the WTO decision and precludes private parties from directly enforcing the decision (See 19 U.S.C. 3512(c)). Nonetheless, under Charming Betsy, courts try to read federal statutes in a manner consistent with international law obligations as interpreted by the WTO.

How the Supreme Court resolves Medellin should depend on how they interpret the federal mandate to recognize decisions of the International Court of Justice. If they determine that there are no federal law requirements on what effect to give to ICJ decisions, then the Court should at a minimum treat an ICJ decision no worse than it would a foreign court judgment using principles similar to Hilton v. Guyot. Unless there is some ground to impeach the integrity of the decision, or there is some binding federal mandate requiring a contrary result, the Court should recognize the ICJ decision as having no precedential weight, but nonetheless binding as between the parties to the judgment.

2 Responses

  1. I would suggest that there is, at the very least, great potential for confusion in the belief or even the ‘fear(…) that international tribunal decisions would have precedential effect.’

    Such binding effect as international decisions do have, in the case of the ICJ under Arts. 94 UNC, 59 StICJ (Art. 60 does not come into this, dealing as it does with res judicata, not binding effect), is nothing to do with stare decisis. What binding effect means in this context is that the State to which the dispositif of a judgment is addressed must comply with it. It does not say that the State, either in its courts or anywhere else, must henceforth accept the reasoning of the judgment as correct, or the rules stated in it as existing.

    (I have mentioned this point in a previous comment on this blog)

    It is arguable that, if the State must comply with the judgment through its courts (because the matter arises before them), the court dealing with the case must apply the law as stated by the international court. This is for the domestic reason that a court cannot simply do what is right, but must do whatever it does by declaring that such is the law.

    But, of course, this is true only if the domestic court cannot reach the right result (i.e. the result consistent with the dispositif of the international judgment) on any other grounds, for instance on grounds of pure domestic law, or by applying the legal basis of the binding effect of the international judgment (Arts. 94 and 59) as the legal basis of its own disposition of the case.

    It is only through this line of reasoning (and the further position that the last option is foreclosed because Art. 94 UNC and Art. 59 StICJ are not self-executing, and domestic law cannot allow compliance in practice with the ICJ judgment) that the binding force of Avena might be said to be a question of precedent.

    (And even then, that precedent would only strictly apply in the cases covered by Avena, i.e. the cases that were brought before the ICJ, and the future cases involving Mexican citizens that the ICJ included in the dispositif [see on that aspect Judge Rudolf Bernhardt’s comments in A. Zimmermann, C. Tomuschat and K. Oellers-Frahm (eds.), The Statute of the International Court of Justice. A Commentary (Oxford: OUP, 2006), at pp. 1243, 1251, and some of my comments in a blog post on Sanchez-Llamas – in fact, precisely the comments from which I later resiled, if only on the facts of Sanchez-Llamas, not on the general issue]. But it would obviously be extremely difficult, to put the matter at its lowest, to follow Avena in a case strictly bound its dispositif, and to decline to follow Avena in any other. Well, that’s Sanchez-Llamas’ fault.)

  2. I haven’t had a chance to read the entire transcript, but it seems that the first question raised in oral argument was the role of the Courts.

    The US Constitution gives the Senate the power to ratify Treaties, but not the power to alter the US Constitution. Therefore if a Treaty ratified by the Senate appeared to require the US to violate its Constitution, US Courts have the power to forbid such unconstitutional acts. Neither the Executive Branch (which negotiates Treaties) nor the Legislative Branch (which ratifies Treaties) has the power to alter the Constitution by a Treaty process.


    sean s.

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