International courts and the U.S. Constitution: reexamining the history.

AuthorMartinez, Jenny S.
PositionResponse to Eugene Kontorovich, University of Pennsylvania Law Review, vol. 158, p. 39, December 2009

Does the United States Constitution pose an insurmountable barrier to the United States' participation in international courts and tribunals ? In a recent article, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, Professor Eugene Kontorovich argues that the United States' participation in the International Criminal Court would violate the U.S. Constitution, both as an unconstitutional delegation of federal judicial power to a court not created in accordance with Article Ill of the Constitution and as a violation of the Bill of Rights's protections attendant to criminal trials in the United States. Kontorovich bases his argument primarily on history, specifically the opposition of some members of the U.S. government to membership in international courts that enforced laws prohibiting the slave trade in the nineteenth century. In response, I argue that Kontorovich has misread this bit of history. First, Kontorovich overstates the significance and sincerity of the constitutional objections. Second, contrary to Kontorovich's assertions, the international slave-trade tribunals did not exercise criminal jurisdiction, but rather a type of civil in rem jurisdiction. This type of civil jurisdiction was well recognized in American admiralty law in the early nineteenth century and was extensively used in U.S. court cases involving the forfeiture of ships under domestic laws prohibiting the slave trade. Third, and most fundamentally, Kontorovich misunderstands

the nature of the constitutional objections to membership in the international courts. When examining the sources more carefully, one sees that the individuals making these objections expressed concern about subjecting Americans to trial for violations of American law in foreign courts, a concern that they expressly stated would not be present in trials for violations of international law. The problem, in their view, was that the general law of nations still allowed the slave trade. As these men understood the law of nations, the actions of one or even two countries could not change the general law of nations. The United States was free to prohibit the slave trade for its citizens as a matter of its domestic law, but then the source of the legal prohibition would be domestic law, and it would be constitutionally suspect to delegate the power to enforce that law to an international tribunal. That--and not the supposedly criminal nature of the courts--was the key distinction between the proposed slave-trade tribunals and the other international arbitration bodies, which were seen as having been charged with implementing law-of-nations obligations, rather than municipal law. By the time the United States eventually ratified the treaty for the slave- trade courts in 1862, however, the general law of nations prohibited the slave trade. No one raised serious constitutional objections at that time. Thus, if anything, the slave-trade tribunals stand alongside the rest of the nineteenth-century arbitration commissions in which the United States participated. The tribunals thus serve as a precedent for the constitutionality of participation in international courts and tribunals as a means for interpreting and enforcing widely recognized norms of international law.

INTRODUCTION I. INTERNATIONAL COURTS AND TRIBUNALS IN THE EIGHTEENTH AND NINETEENTH CENTURIES A. Arbitration Tribunals B. The Slave-Trade Courts C. Kontorovich's Argument About the Slave-Trade Tribunals II. THE UNITED STATES AND THE SLAVE-TRADE TRIBUNALS: REEXAMINING THE EVIDENCE A. The Weight and Sincerity of the Constitutional Objections B. Criminal or Civil? C. The Constitutional Objections in Proper Legal Context III. SOME CONCLUDING OBSERVATIONS A. The Vesting of the "Judicial Power" in Non-Article III Courts B. Trial Procedures CONCLUSION APPENDIX INTRODUCTION

While the United States is increasingly pursuing a policy of positive engagement with the International Criminal Court (ICC), no one expects the United States to join the court anytime soon. There are too many political barriers and uncertainties about the court's operations. But if the United States someday decided it wanted to join the ICC, would membership be constitutional?

In a recent article, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, Professor Eugene Kontorovich argues that participation in the ICC would violate the U.S. Constitution, both as an unconstitutional delegation of federal judicial power to courts not created in accordance with Article III and as a violation of the Bill of Rights's protections attendant to criminal trials in the United States. (1) Kontorovich bases his argument primarily on history, specifically the initial opposition of some members of the U.S. government to membership in international courts adjudicating cases involving the suppression of the slave trade in the nineteenth century. (2) Kontorovich characterizes the nineteenth-century slave-trade tribunals as criminal, rather than civil, in nature) He argues that their criminal nature distinguished these courts in constitutionally significant ways from other international tribunals in which the United States participated, without constitutional qualms, in the early decades of the United States' existence; participation in these courts has been used to argue that U.S. participation in modern international courts would also be constitutional. (4) Kontorovich concludes that "[t]he evidence ... suggests that giving an international criminal court jurisdiction over certain offenses within the ICC's charter would generally be unconstitutional." (5) In this Article, I argue that Kontorovich has misread this bit of history. A more accurate reading of this episode does not lend support to the argument that U.S. participation in the ICC would be unconstitutional in the ways Kontorovich suggests.

As I have previously described, and as other scholars had largely forgotten, between 1817 and 1871, a series of British bilateral treaties with various nations banning the transatlantic slave trade also provided for international courts to help enforce the ban. (6) "[O]ver the treaties' lifespan, the courts heard more than 600 cases and freed almost 80,000 slaves found aboard illegal slave trading vessels." (7) The United States initially declined to participate in the treaties that created the courts, though it eventually joined the system in the midst of the Civil War in 1862 under President Lincoln's Administration. (8) While no cases were ever actually heard under the 1862 U.S. treaty, the lack of cases reflected the success, rather than the failure, of the treaty regime; the signing of the treaty basically extinguished the last remaining branch of the slave trade. (9) In fact, by the mid-1860s, there were almost no ships engaged in the transatlantic slave trade. (10)

The United States offered several reasons for its initial reluctance to join the anti-slave-trade treaties and the tribunals they created. Kontorovich attaches great weight to statements by certain members of President James Monroe's Cabinet that U.S. participation in the international slave-trade courts would violate the Constitution." But Kontorovich misunderstands both the nature of these constitutional objections and the context in which they were made. First, Kontorovich overstates the significance of the constitutional objections to U.S. participation in the international tribunals. Viewed in the context of other diplomatic and legal controversies of this time period, the United States' main objection involved the right of maritime search that the treaties conferred on the British government. The constitutional objections were primarily raised in cabinet meetings and diplomatic negotiations between 1818 and 1824, and those objections were never tested or even fully explored in any public or judicial forum. (12) As I explain below in Section II.A, they seem to have been used strategically in negotiations with the British as an unanswerable way to end the unwelcome conversation. (13) This historical clarification does not totally negate Kontorovich's argument, but it diminishes the value of the episode as a precedent shedding light on the meaning of the Constitution.

Second, contrary to Kontorovich's assertions, the international slave-trade tribunals did not exercise criminal jurisdiction, but rather a type of civil in rem jurisdiction that American admiralty law in the early nineteenth century recognized and that U.S. courts used extensively in cases involving the forfeiture of ships under domestic laws prohibiting the slave trade. (14) Kontorovich views the supposedly criminal nature of the slave-trade courts as pivotal, arguing that it was "the criminal jurisdiction of the slave-trade courts" that distinguished them from other nineteenth-century international courts. (15) But as I show in Section II.B, it was well established by the 1820s that there was no jury-trial right for slave-trade forfeiture cases in American courts, and no competent nineteenth-century American lawyer--let alone the members of Monroe's Cabinet, who would have been familiar with many of the American cases--could have failed to appreciate that fact. (16)

Third, and most fundamentally, I explain in Section II.C that Kontorovich misunderstands the nature of the constitutional objections because he fails to situate those objections in the context of the conceptions of the law of nations and the nature of jurisdiction that prevailed in early to mid-nineteenth-century America. (17) To the extent that members of Monroe's Cabinet expressed constitutional concerns about the exercise of jurisdiction by the slave-trade courts, these objections reflected the fact that the slave trade was not then illegal under the general law of nations but only under the law of individual countries, including the United States. When one more...

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