25 Mar Some More Quick Thoughts on Medellin
[Mark Movsesian is the Frederick A. Whitney Professor of Contract Law at St. John’s University School of Law.]
Thanks to Chris for inviting me to say a few quick words about today’s very significant decision.
Hooray for Dualism: Just as he did two years ago in Sanchez-Llamas, CJ Roberts endorsed a dualist approach to the judgments of international tribunals. Dualism teaches that international and domestic regimes are entirely independent; in the absence of a domestic act of incorporation, international judgments cannot serve as rules of decision in domestic courts. Because there was no valid act of incorporation in this case – the Court believed that the Bush Memorandum did not qualify – Avena did not bind American courts.
This approach is entirely sensible. As a formal matter, neither the Optional Protocol nor the UN Charter can fairly be read to provide for direct effect for ICJ judgments. The functional arguments for dualism are as strong as well. By reserving the final decision on international judgments to domestically accountable actors, dualism promotes legitimacy and avoids unnecessary friction between national and international bodies. Moreover, dualism actually increases the likelihood that nations will create international tribunals. If international judgments automatically bound domestic courts, without any further act on the part of domestic authorities, nations would be much more wary of signing up to international regimes.
The Foreign Judgments Analogy: The Court correctly dismissed the idea that enforcing the ICJ judgment would be effectively the same as enforcing a foreign court judgment or an international commercial arbitration award. While it’s true that domestic courts routinely enforce such rulings, foreign court judgments and ICA awards typically deal with commercial disputes that do not impinge on domestic public policy. Here, by contrast, the ICJ ordered the retrial of scores of defendants who had been convicted of serious crimes and indirectly questioned American policy on the death penalty. These are hardly the sort of issues that come up in the foreign-judgments and ICA contexts.
The End of the Road: For the last decade, the American international law academy has been pressing the Court to be more receptive to ICJ judgments. Ten years ago, in Breard, the Court held that a preliminary ICJ ruling merited only “respectful consideration.” Two years ago, in Sanchez-Llamas, the Court declined to treat a final ICJ judgment as binding precedent. And now the Court has ruled that ICJ judgments are not enforceable. For better or worse (on balance, I think it’s for better), it’s clear after this morning that the campaign to change the Court’s mind has failed. New justices might see things differently, of course — though it’s significant that even Stevens voted with the majority today. For now, though, it seems time to move on to other projects.
“[F]oreign court judgments and ICA awards typically deal with commercial disputes that do not impinge on domestic public policy.”
Professor:
How is it that commercial disputes do not impinge on domestic policy? Are you claiming that a state has no interest in how a court rules on the rights and obligations of a corporation that is organized under the state’s particular laws? Or that domestic policy is not implicated when corporate wrongdoing is exposed in a foreign forum?
And even if your distinction is correct, aren’t foreign judgments regarding divorce, custody, and alike generally enforced in US courts although we would not, I think, consider such disputes as “commercial”?
The way I would distinguish the decision to not enforce the ICJ decision is not to say that the stakes are higher or that different policy considerations are at issue but rather that the Supreme Court was not willing to overturn the work of Texas courts in interpreting the VCCR on the basis of a foreign court opinion as to the true meaning of the treaty, absent an express congressional mandate to do so.
Prof. Movsesian, I have to say I share some of Milan’s doubts. As it happens, I have developed a short critique of the Court’s rejection of the foreign judgments analogy (but possibly not a full defense of the analogy proposed by Medellín’s lawyers) in a discussion to an earlier post here. I might as well repeat the relevant statements now: As I see it, the rule precluding enforcement of foreign injunctive relief rests on the lack of jurisdiction (in the sense of ‘jurisdiction to enforce’) in the foreign State to take any action in the recognizing (or rather, not recognizing) State. The rule is related to, and based on the same principle as, the one precluding the application of foreign public and revenue laws. (See for an explanation of that latter principle, with extensive reference to international law, Mbasogo v. Logo Ltd [2006] EWCA Civ 1370, [2007] 2 WLR 1062, paras. 32, 36, 41-42.) ICJ cases are of another order entirely. There is no question of a lack of jurisdiction in any State. Nor could the Court be without jurisdiction, as it depends on the consent of the parties before it (which has been given in Avena, and on the… Read more »