Judging International Judgments
I’m grateful to the folks at Opinio Juris and VJIL for this opportunity to introduce readers to my article and to Roger for offering to serve as commentator.
My article discusses the Court’s decision last year in Sanchez-Llamas v. Oregon. Sanchez-Llamas addressed the precedential effect of ICJ judgments in domestic courts. (By contrast, Medellin v. Texas, which the Court heard last week, involves the enforcement of ICJ judgments themselves). In the article, I show how the main opinions in Sanchez-Llamas mirror the debate about international tribunals, and the ICJ in particular, that has preoccupied the international-law academy for the last decade. The Court’s opinion adopts what I call a dualist approach to ICJ judgments. It holds that ICJ judgments have only “information value” for domestic courts – ICJ judgments can supply good arguments and helpful analysis, but they cannot influence the outcome of a case, the way domestic precedent can, by virtue of their status as judicial pronouncements. The dissent, by contrast, adopts the comity model, which teaches that American courts should presumptively defer to ICJ judgments – should give them presumptive “disposition value” – in the interests of justice and global uniformity.
I argue that the dualist approach is better than the comity model at balancing the advantages and disadvantages of international tribunals like the ICJ. The comity model draws support from inapposite regional analogies, both European and American, and fails to resolve the legitimacy problems of international tribunals. In rejecting the comity model, Sanchez-Llamas suggests that the American approach to international judgments will be a moderate and sensible one.