authority of international tribunals
jmiller at swlaw.edu
Wed May 19 12:16:11 PDT 2004
For the parties, an ICJ decision can be authoritative in the same
fashion as an other international legal obligation. Judge Chapel's
concurring opinion in last week's decision takes the posiiton that since
the Optional Protocol to the Vienna Convention provides for ICJ
jurisdiction, as part of its treaty commitment, the U.S. is obligated to
give effect to ICJ decisions. Since the U.S. does not dispute that the
ICJ had jurisdiction, the position that State and Federal courts must
give effect to the ICJ decision in the same manner that they would give
effect to any treaty obligation of the U.S. strikes me as hard to object
to. In Breard, the U.S. Supreme Court held that Congress had
established procedural bars on further habeas corpus appeals after the
Vienna Convention was ratified, so that under the second in time
approach the later statute prevailed. While I think the Breard decision
was problematic, I don't think anything in Breard contradicts Judge
Chapel's opinion or takes away from the authority of an ICJ decision as
an international obligation. Certainly a State procedural statute
cannot ignore an international commitment.
David R. Dow wrote:
>can something be authoritative if there is no procedural vehicle to
>implement it? the ICJ order in the case brought by mexico involves death
>row inmates most, if not all, of whom have already been through state and
>federal habeas. the laws of most states make it difficult to file a
>subsequent habeas petition, and filing a second habeas petition under
>federal law is even more difficult. (see 28 u.s.c. sec. 2244.) so:
>assuming that the ICJ decision does not satisfy the state or federal
>statutory criteria for filing a subsequent writ, how can it be enforced?
>and if it cannot, what does it mean to call it authoritative?
>At 11:28 AM 05/19/2004 -0700, you wrote:
>> 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. Such
>>tribunals are at best a "subsidiary means" (I.C.J. statute) for determining
>>rules of law. 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: Jörg 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 André
>>de Hoogh or Jörg 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.
>> j.kaho at aon.at
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Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
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