International adjudicators and judicial independence.

• Author: Harrison, John
• Position: International Rule of Law

What are the consequences to the United States legal system of the decisions of adjudicatory tribunals acting pursuant to treaties and other international agreements to which the United States is a party? This question and its variants are likely to increase in importance as the number and significance of international adjudicatory tribunals will probably continue to increase.

This Article will advance one argument supporting the position that adjudicatory tribunal decisions, including, for example, those of the International Court of Justice ("ICJ"), have, of their own force, no effect in domestic law, even when they are made pursuant to international agreements to which the United States is a party. I will thus be supporting the dualistic position adopted by Professor Curtis Bradley, who maintains that, as a general matter, treaty-empowered international bodies can bind the United States only as a matter of international, not domestic, law. (1) My argument is less general than Professor Bradley's in that it applies specifically to treaty-empowered adjudicatory bodies. Although this argument is thus somewhat specialized, I believe that the structural feature of the Constitution on which it rests is both fundamental and of substantial interest.

The Supreme Court's most recent decision concerning ICJ opinions, Sanchez-Llamas v. Oregon, (2) follows another case, Medellin v. Dretke, (3) in which it granted certiorari only to avoid a decision. Medellin is of more interest in this context, because it involved a Mexican national who had been the specific subject of a decision by the ICJ. (4) In that decision, the ICJ directed the United States to provide individuals like Medellin with a forum in which to raise their claims under the Vienna Convention on Consular Relations. (5) Unlike Medellin, Sanchez-Llamas was not the subject of an ICJ decision. (6) In terms familiar to American lawyers, Medellin involved the domestic legal effect of both a precedent and a judgment of an international tribunal. Sanchez-Llamas involved only the precedential authority of the international court, which is an important topic but not the one I am addressing.

The argument in favor of treating the ICJ's decision as binding in cases like Medellin is straightforward. The President, with the advice and consent of the Senate, ratified both the Vienna Convention on Consular Relations (7) and the Optional Protocol under which states may accept the jurisdiction of the ICJ. (8) At the times relevant to that case, the United States was a party to both treaties. (9) Article VI of the U.S. Constitution says that treaties are the supreme law of the land. (10) The Vienna Convention's Optional Protocol authorizes the ICJ to resolve conclusively disputes regarding it. (11) Hence the ICJ's decision creates a binding obligation under the treaty, the treaty is U.S. law, and the ICJ therefore binds all United States courts, both state and federal. The ICJ's decision is just as binding as the treaty from which it takes its force, just as a regulation duly promulgated by a federal agency is just as binding as the law of the United States that authorizes the regulation.

The trouble with that argument is that it is schematically almost identical to the following argument: Congress passes a statute providing that disputes about the meaning of the Clean Air Act are to be conclusively resolved by a panel consisting of officers of the Environmental Law Section of the Association of American Law Schools. Such a statute is the supreme law of the land, and therefore authorizes that panel to conclusively resolve disputes.

The hypothetical statute would be clearly unconstitutional. Any debate would be more about the rationale for that conclusion than its substance. Formalists likely would say that such a grant of adjudicatory authority was inconsistent with the Appointments Clause of Article II, the Vesting Clause of Article III, and possibly the Vesting Clause of Article II. (12) Nonformalists would appeal to constitutional standards concerning separation of powers and the independence of the judiciary, rather than to constitutional rules, but nearly all of them would agree that the statute would be unconstitutional.

As a formalist myself, I would be satisfied with the invocation of rules, uneasy with much reliance on the reasons for those rules, and hostile to the replacement of a textual rule with a standard abstracted from it. But the understanding of the more general principles that explain and justify the Constitution's formalities is of interest to everyone. For formalists, that understanding is at least illuminating, and for non-formalists it may be the law itself.

No general principle is more fundamental to the Constitution's structure than separation of powers. Along with federalism, it defines the American polity in any topology of free governments. Judicial independence from the legislature means that the adjudicators are not, and do not simply work for, the legislators. (13) The U.S. Constitution implements the principle of adjudicatory independence by setting out the basic features of the institutions in rules that are hierarchically superior to ordinary law and may not be altered by the ordinary law-maker, which is usually Congress. The Constitution vests the judicial power in Article III courts and no one else, thereby severely restricting Congress's ability to choose the individuals and kind of institutions by which its laws will be applied. (14)

To be sure, the Constitution hardly contemplates that all adjudication will be done by the federal courts, or even that all adjudication concerning questions of federal law will be done by the Article III judiciary. On the contrary, the Supremacy Clause of Article VI is quite clear that state courts not only may apply the Constitution, federal statutes, and United States treaties, but...