Fall 2008

A New World (Court) Order?

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Adhering to a nondelegation doctrine with respect to international courts and tribunals would not necessarily result inU.S. courts invalidating treaties and other international agreements. While the United States is party to hundreds of international agreements committing it to binding dispute resolution before international tribunals, the vast majority of those agreements are already enforced solely by either Congress or the president. The pattern of U.S.practice has relied heavily on the president and, to a lesser extent, onCongress and the states, to determine how or whether to comply with adverse international tribunal judgments.Absent specific authorization byCongress, no court has yet held that any of these treaties and agreements authorize domestic courts to enforce international tribunal judgments.

In this way, the nondelegation doctrine will become important as a rule of treaty interpretation, forcing accountability from U.S. political decision makers for the actions of an international court or tribunal. Before aU.S. court gives an international tribunal’s interpretation of a treaty’s immediate domestic effect, an application of the nondelegation doctrine as an interpretive rule will require a clear statement in the treaty that the court’s or tribunal’s interpretations are intended to have such immediate domestic effect within the United States. Such a clear statement requiring judicial enforcement can be found in theConvention on the Law of the Sea currently awaiting ratification by theU.S. Senate.⁴ Alternatively, a clear statement might be found in congressional legislation implementing the treaty, or in an executive order made by the president. Such a clear statement was lacking, according to theSupreme Court, in the Medellin v. Texasdecision.

Although there is ample doctrinal and historical support for this approach, I also offer three functional justifications for requiring a clear statement before recognizing treaty delegations to international courts and tribunals.

First, a clear statement rule forces theU.S. political branches to take responsibility for complying with international tribunal judgments.Without such a clear statement rule,U.S. treaty makers can allocate controversial or difficult decisions to international tribunals and then avoid responsibility for the consequences of their delegations. With such a rule,such difficult decisions will remain the responsibility of the political branches.

Second, a clear statement rule bolsters the legitimacy and authority of international court and tribunaljudgments. International courts and tribunals, like other international organizations, are likely to suffer from a“legitimacy” deficit due to their nondemocratic character. But requiring action by the executive or legislative branches arms such decisions with the full political and legal legitimacy of the most democratic parts of the U.S.government. Critics of such judgments will be forced to confront the merits of the court or tribunal judgments rather than simply questioning such a court’s or tribunal’s authority.

Third, in addition to forcing political branches to take responsibility for controversial decisions, a clear statement rule will also empower the political institutions most likely to be competent and effective in assessing whether and how to comply with that international court or tribunal judgment. Unlike courts, the executive and legislative branches have substantial functional expertise and experience in the administration of international relations that they can bring to bear on such questions. As a review of historical and modern U.S.practice with respect to compliance with international tribunal judgments reveals, the political branches are fully capable of complying with international tribunal judgments through legislative and/or executive action.

The frequency and scope of U.S.relationships with international courts and tribunals are likely to increase in the next few years. Developing a practical but flexible limitation on such relationships and ensuring the dominance of the most politically accountable branches of the U.S.government can ensure that international courts and tribunals coexist with sound constitutional values.

Endnotes

¹Treaty of Amity, Commerce, andNavigation (the Jay Treaty), art. VI (1795)(appointing five commissioners empowered to settle claims arising out of U.S.Revolutionary War).

²Case Concerning Avena and other MexicanNationals (Mex. v. U.S.), 2004 I.C.J. No. 128 (Judgment of Mar. 31); LaGrand Case(F.R.G. v. U.S.) (Judgment of June 27,2001); Case Concerning the ViennaConvention of Consular Relations (Para. v.U.S.) (Provisional Measures Order of April 9, 1998), 1998 I.C.J. 248 (April 9).

³See, e.g., In the Matter of Certain SoftwoodLumber Products From Canada, FinalAffirmative Countervailing DutyDetermination, USA-CDA-2002-1904-03(December 1, 2004) (finding U.S. duties onCanadian softwood lumber in violation ofNorth American Free Trade Agreement);Report of the Appellate Body, United States– Sunset Review of Anti-Dumping Duties onCorrosion-Resistant Carbon Steel FlatProducts From Japan (WT/DS244/AB/R)(finding U.S. duties on steel violation ofWTO and GATT agreements); Report of theAppellate Body, United States – TaxTreatment for “Foreign Sales Corporations”(Jan. 14, 2002), 2002 WL 44907 (W.T.O.)(finding U.S. tax code provisions on foreign sales corporations violation of WTO andGATT agreements); Report of the Panel,United States – Import Prohibition ofCertain Shrimp and Shrimp Products(WT/DS58/R/Corr.1) (finding U.S. marine mammal protection act in violation of WTOand GATT agreements).

⁴See UNITED NATIONS CONVENTION ON THE LAW OF THE SEA, Annex VII,art. 39.

References

Ku, Julian G. (2007). Sanchez-Llamas v.Oregon: Stepping Back from the NewWorld Court Order, 11 LEWIS &CLARK L. REV. 17.

Ku, Julian G. (2006). InternationalDelegations and the New World CourtOrder, 81 WASH. L. REV. 1.