authority of international tribunals

[Jonathan Miller]

In the context of the recent decision by the ICJ against the U.S. in the 
case brought by Mexico, one point needs to be clarified, however.  Jorg 
Kammerhofer's statement is correct on the issue of the precedential 
value of decisions by international tribunals.  However, many treaties 
have provisions that state that the parties to the treaty undertake to 
comply with the judgements of a particular international tribunal.  In 
that situation, a strong argument can be made that the decision of the 
tribunal is binding on State and Federal courts under the Supremacy 
Clause -- the argument that the concurring opinion on the Oklahoma Court 
of Criminal Appeals made last week in the Osbaldo Torres case.


Mortimer Sellers wrote:

> Dear colleagues,
>  
>   We have had several exchanges on this list about the role of 
> international law in U.S. courts.
>  
>   Sometimes U.S. lawyers cite international tribunals as if they were 
> binding authority for the content of international law.  They are 
> not.  Such tribunals are at best a "subsidiary means" (I.C.J. statute) 
> for determining rules of law.
>  
>   This is important if one believes, as many do, that international 
> law is part of the Constitution of the United States, and binds U.S. 
> courts.  With his permission, I am attaching an e-mail from Jorg 
> Kammerhofer on the ASIL listserve, which tries to clarify this point 
> in response to some posts by North American lawyers.
>  
>                 Tim Sellers
>  
> -----Original Message-----
> From: Jvrg Kammerhofer [mailto:j.kaho at aon.at]
> Sent: Wednesday, May 19, 2004 10:51 AM
> To: ASILforum
> Subject: Re: Who is Protected; Who Apparently Might Be Charged?
>
> Dear fellow list members,
>
>  Let me make one thing absolutely clear. The fact that an 
> international tribunal (created by the Security Council) makes a 
> pronouncement on what it thinks is the law does not mean that this 
> pronouncement is authoritative. As far as international treaty law or 
> customary international law are concerned, these pronouncements have 
> no more worth than if [Mortimer Sellers] , Andri de Hoogh or Jvrg 
> Kammerhofer had made the pronouncements. International law is not a 
> common law!
>
> I will illustrate briefly: The ICTY is not a primary source of 
> international law, and by no means one of higher order than custom or 
> treaty. As far as I know, the Geneva Conventions do not authorise the 
> ICTY to create either general norms authoritatively interpreting (i.e. 
> changing) or individual norms applying (i.e. determining for a 
> particular case) its norms. Its authority under international treaty 
> law derives from the authority of the Council, which, in turn, derives 
> from the Charter. The Charter - it is true - claims to be a higher 
> sort of norm (Art 103), but, while I am not terribly familiar with the 
> statute of the ICTY I am almost certain that it does not authorise the 
> tribunal to create norms binding upon the parties to the Geneva 
> Conventions or upon all states, respectively.
>
> Its informal authority derives from the fact that the judges serving 
> on the bench are highly respected and experienced international 
> lawyers. I am perfectly willing to agree that their pronouncements 
> must be taken seriously - as must any accomplished scholar's - and 
> their argument evaluated and accepted or rejected. Their pronouncement 
> may well be true (and I do not wish to discuss the merits of 
> Francisco's statement here). But to say that because an international 
> criminal tribunal has stated that 'X is law.' (where X is a given 
> norm), because of the very fact of its making the statement X is law, 
> that the statement establishes that X is law, that - even taken as 
> declaration - the law cannot be other than X, is simply wrong and 
> smacks of legal cultural imperialism or wishful thinking.
>
>
> Yours sincerely,
>
> Jvrg Kammerhofer
> j.kaho at aon.at
>
>
>
>
>
>------------------------------------------------------------------------
>
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>  
>

-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784

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