About Those Independent Domestic Courts

About Those Independent Domestic Courts

At risk of distracting us too soon from the merits vel non of natural law, I wanted to take up another piece of Mary Ellen’s account – namely, her fairly positive outlook on the prospects of domestic court enforcement of international law.

Despite the subject matter’s placement in the very last chapter of the book, Mary Ellen I think rightly notes: “National courts are, in many respects, the most important institutions for enforcement of international law.” They are, she posits, the “most commonly used method of international law enforcement and in many respects the most attractive.” While national courts have imposed various discretionary or prudential obstacles to the successful enforcement of international law, Mary Ellen says, “these self-imposed limits have been diminishing in recent decades.”

I admit to stumbling a bit over the empirical claim. The U.S. Supreme Court, of course, has provided some important anecdotal examples of taking international legal obligations into account; its ruling in Hamdan on the inadequacy of the original military commissions certainly elevated Common Article 3 of the Geneva Conventions to front page news as had no other event in recent memory. Yet for every Hamdan, one can cite a Medellin, in which the Court declined to give preemptive effect to an ICJ ruling as against a domestic state law to the contrary. Has one of our political science colleagues actually crunched the numbers here?

Either way, part of the substantive claim also has me stewing. Mary Ellen argues that domestic courts should “support the international rule of law” by “defer[ing]” to the findings of ICJ decisions as conclusive as to the meaning of the law. I’m no fan of Sanchez-Llamas; I think the U.S. Supreme Court got it wrong on its interpretation of the requirements of the Vienna Convention. But I’ve found it harder to find fault with the following aspect of the Court’s reasoning as to why it insisted on deciding the matter for itself.

Under our Constitution, “[t]he judicial Power of the United States” is “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Art. III, §1. That “judicial Power . . . extend[s] to . . . Treaties.” Id., §2. And, as Chief Justice Marshall famously explained, that judicial power includes the duty “to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). If treaties are to be given effect as federal law under our legal system, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court” established by the Constitution. Ibid.; see also Williams v. Taylor, 529 U. S. 362, 378–379 (2000) (opinion of Stevens, J.) (“At the core of [the judicial] power is the federal courts’ independent responsibility—independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States—to interpret federal law”).

Now of course not every domestic system in the world confronts this particular problem. But at a minimum when the U.S. courts assert this power of independent review as against their coequal branches in the U.S. government, I tend to wholeheartedly agree. Forgive me for rehashing what is no doubt old ground to our OJ readers, but Mary Ellen’s book seems to me an important occasion to push a little harder on why one should feel differently when that power is asserted as against another court.

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Mary Ellen O'Connell

Response… Thanks, Deborah, for this post, which has two main points: whether the self-imposed legal obstacles to domestic judicial enforcement of international law are falling, and whether the ICJ should or should be looked to by domestic courts when interpreting rules of international law for the authoritative interpretation. Regarding the empirical point, it concerns domestic courts getting into line with the Lotus judgment that imposed very limited restraints on the enforcement of international law by domestic courts.  Those courts have imposed such limits on themselves and those barriers have been falling over the last 20 years.  This is not a claim about how well or effectively national courts enforce, just that within their own law they now have more opportunity to do so. Think about your own area of human rights law and the barriers that have fallen since Pinochet.  Think of all the enforcement cases in Europe of the Geneva Conventions and other human rights instruments relative to Rwanda and ex-Yugoslavia.  In the book I discuss the important Danish case of Prosecutor v. T, prosecution of a Croat for war crimes in ex-Yugoslavia, though the crimes had NO ties to Denmark.  This case is an important development. You know… Read more »


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