Fall 2008

A New World (Court) Order?

Julian Ku

Professor of Law and Associate Dean for Faculty Development

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In recent years, the U.S. SupremeCourt has made a number of important and potentially landmark decisions implicating international relations and international law. Two of the most important of these decisions examined the legal effect of an international court’s judgment within the American legal law. In Sanchez-Llamas v. Oregon and Medellin v. Texas, the SupremeCourt considered petitions seeking to use judgments made by the UnitedNations’ principal judicial organ, theInternational Court of Justice, to set aside or order a new trial for individuals convicted under American law.

The importance of this question is hard to overstate. Although the United States has participated in forms of international adjudication from its earliest history,¹ the Supreme Court had never before directly considered the domestic legal significance of judgments issued by international courts. And in the next few years, U.S.courts increasingly will be asked to enforce judgments by international tribunals and courts. In just the past decade, the U.S. government has been the subject of three adverse judgments issued by the International Court ofJustice.² The United States has also lost numerous adverse judgments before the dispute resolution tribunals set up under the World Trade Organization and theNorth American Free Trade Agreement.³Indeed, the United States is obligated to undergo binding international dispute resolution by hundreds of treaties and international agreements. It is likely that litigants will seek to enforce the judgments of such international courts and tribunals directly in U.S. courts.

Many legal scholars welcome the increasing frequency and interaction ofU.S. courts with international courts and tribunals. Some leading scholars have argued that the interaction between international tribunals and domestic courts can form a central component of a new international order characterized by respect for and submission to international law and international institutions. Their arguments have been reflected in both the briefs filed in recent Supreme Court decisions as well as in dissents from key justices on the Court.

I use the phrase “new world court order” to describe the intersection of two phenomena: the growth and importance of international courts and tribunals and the effort to enforce the judgments of international tribunals in domestic courts. In my view,encouraging and even requiring U.S.courts to give domestic effect to international court and tribunal judgments would create difficulties as a matter of U.S. constitutional law. The power to enforce international tribunal judgments, I believe, is properly understood to fall within the foreign affairs power, and not the judicial power, of the U.S. government. As such, the most politically accountable branches of the U.S. government, the president and Congress, are the only institutions constitutionally authorized to determine how or whether to implement an international court or tribunal judgment within the U.S. legal system.

There is a longstanding doctrine of U.S.constitutional law that might help govern the relationship between the U.S.legal system and international courts and tribunals. The “nondelegation” doctrine limits the excessive delegation of authority by one branch of the U.S.government to another. The doctrine is most commonly invoked with respect to legislative delegations to executive agencies, but it can also be used in other contexts. I argue that direct enforceability of international court and tribunal judgments could constitute an impermissible delegation of the U.S.foreign affairs power to international tribunals.

To be sure, even in the domestic sphere,the nondelegation doctrine is better known for its under enforcement than for its role as a serious constitutional constraint. Nonetheless, there are reasons to treat delegations to international courts and tribunals differently. Unlike delegations to domestic institutions, international delegations involve transfers of legal authority to international institutions over which the politically accountable branches of the federal government have fewer mechanisms of control.

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