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.