Some More Quick Thoughts on Medellin

by Mark Movsesian

[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.

2 Responses

  1. “[F]oreign court judgments and ICA awards typically deal with commercial disputes that do not impinge on domestic public policy.”


    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.

  2. 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 existence of which the Court can finally decide under Article 36(6) of its Statute).

    [At this point came some criticism by a commenter called Dave, based on the proposition that the ICJ has jurisdiction to decide the case, but not over the enforcement of its own judgment.]

    To explain further:

    My argument proceeds from the basis of the rule against the recognition of foreign injunctive relief. That basis, so I believe on the grounds of English authority (more on that in a PS below), is in general international law: if a foreign court enjoins certain conduct in Texas, then the state to which that court belongs exceeds its authority. The state just does not have ‘jurisdiction to enforce’ outside its own territory. (note that this is ‘jurisdiction to enforce‘ in the sense of the distinction between ‘jurisdiction to prescribe’ and ‘to enforce’ in general international law; ‘enforcement’ in that sense isn’t necessarily the enforcement of a judgment) The courts of the state whose territorial sovereignty is prejudiced by the foreign injunction of action within its territory will not tolerate, allow or otherwise give their imprimatur to such an arrogation of authority on the part of a foreign court.

    True, the ICJ does not have jurisdiction within a state. It cannot directly affect federal law, nor the law of Texas. That is because, simply put, international law has no knowledge of anything within a state; there is no state of Texas, at least for present purposes of international law. There is only the USA.

    The Court can and does, however, impose an obligation on the USA, in international law, to comply with its judgment. Foreign courts don’t do that. I therefore don’t see a policy reason parallel to that applying in the inter-state context for US courts to deny recognition to ICJ judgments.

    PS: I have cited only English authority for my understanding of the rule of non-recognition in inter-state cases. That is largely because I don’t know enough about US law. But I also incline to think that the English line of authority is old, basic and international enough to ‘count’ in some way (the line goes back to Emperor of Austria v. Day and Kossuth (1861) 3 De G F &J 217).

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