Enforceability of International Tribunals' Decisions in the U.S.

PANEL #3 (11:00 a.m.-12:30 p.m.)

This panel will deal with questions relating to the constitutional permissibility of express and implicit delegations of authority to international bodies such as the United Nations, the International Court of Justice, and appellate bodies in NAFTA. Panelists will deal with issues such as the Executive’s ability to delegate treaty interpretation authority to international bodies, as currently practiced under compulsory jurisdiction clauses in many international treaties. The recent case of Medellin v. Dretke raises the question of whether, even in the absence of express delegation, our courts should follow the decisions of international law courts out of comity.

Moderator: Hon. Diarmuid O'Scannlain, 9th Circuit Court of Appeals
Panelists:
* Dean Alex Aleinikoff, Georgetown University Law Center
* Professor Curtis Bradley, Duke University School of Law
* Professor Lori Damrosch, Columbia Law School
* Professor John Harrison, University of Virginia Law School

[Unfortunately, PG was helping Prof. Amar sell his book and therefore missed the panel's speaking.]

Q&A:

Judge Kozinski, from the UCLA law chapter: I was fascinated by Judge O'Scannlain's description of the procedure after Aveeno. What are the applications for the non-Aveino cases?

Damrosch: My basic position on the effect of the presidential proclamation -- it's sort of like the Little Prince who commands the sun to rise when the sun is already rising. If the state courts were not fulfilling their existing duties, the federal courts would have ruled that they had to do. The proclamation is icing on the cake.

Bradley: The decision does not create any federal law preempting the Texas law. the assertion of the executive is to create law to override otherwise applicable state law. The ability to make law is normally invested with Congress. The courts will allow some executive branch lawmaking due to the underlying treaty, despite its lack of self-execution, and the Take Care Clause. But that wouldn't have happened with the executive's making some domestic law.

Damrosch: Before Bush made the memo, in the first of the cases come up in Oklahoma, that court concluded that it would give effect to the Avena judgment for one of the 51 nationals, on the basis of guidance from the State Department that the judgment had binding effect for the U.S.

O'Scannlain: The Supreme Court did say that it would come back up to them after going through the Fifth Circuit.

Q: Since the ICJ is much controlled by non-democratic states, should we be suject to it?

Aleinikoff: We ought to be figuring out processes for international law as it is appropriate. In this I may be closer to Bradley than to Damrosch, and I'm surprised to hear myself say that. An interpretive authority in both the ICJ and the U.S. for the meaning of treaties, because the long run interest is for the U.S. law to be integrated non-hierarchically with international law and this can best happen if we have U.S. judges grapple with international law.

Q from Emory lieutenant: I think one of the major fears of Americans is participation in tribunals that don't share American values. Even with our democratic allies, we disagree on issues like capital punishment and foreign affairs.

Aleinikoff: I assume we only join those international tribunals that we think operate under appropriate norms of due process. The U.S. should have joined the ICJ in light of the ICJ's changing its rule to accommodate the U.S.

Harrison: The judicial bodies are being used to make law, and we are close to a new Supremacy Clause. This law should be made legislatively. Structure and the substantive issue get bound together, as with the death penalty.

Aleinikoff: Old Constitution says that treaties we enter into are deemed Supreme. The history of the American constitution is not originalism or formalism. We will get to the transnational world, because that is what the popular branches and the people want, and our narratives will catch up to that.