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  • Philip Jessup proposed the idea of a transnational law course. His vision of the subject was broad, including public and private international law; state and non-state actors; business, administrative, and political affairs; as well as negotiation and litigation. Inspired by his idea, TLB is only constrained by its pursuit to address all law transcending national frontiers.

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January 16, 2008


Patrick S. O'Donnell

You might want to draw on constitutional law as well...or the argument risks falling on deaf ears! In any case, I look forward to the post.


My argument rests on the assumption that treaties are the "supreme law of the land", thus the constitutional question is pretty clear. For instance, say the President signed and the Senate ratified a treaty that said we would review and reconsider all convictions of foreign nationals that had not been afforded consular notification at the time of their arrest. I think it would be pretty clear that that was now federal law, and could only be struck down if it was either a violation of the Constitution (there is a plausible argument that it would violate the 10th amendment, though I think it is likely to be found a valid exercise of federal power) or it is superceded by a later-in-time federal statute. Of course, here we did not sign such a treaty; rather, we signed a treaty that said we would abide by a decision of the ICJ related to any disputes over interpretation of the treaty. My article relates to the difference between those two scenarios.

Plenty of others have written on why it is "constitutional" that the ICJ judgment be enforced (for example, see Koh, 93 Cornell LR 243). My question is why the differing treatment of the two scenarios is problematic given the Court's previous treatment of 3rd party dispute resolution mechanisms in commercial contracts. Thus, my narrow argument is more contract theory than constitutional theory.

I'm glad you are interested! Please keep the comments coming, as I would like to see what holes can be poked in my thesis.

Patrick S. O'Donnell

Well, I suspected as much, and should have accorded you the presumptive benefit of the doubt on this, but I'm also thinking of the rhetorical appeal. Without at all agreeing with this position, I think the Court is worried about being perceived as unduly constraining the power of the Excutive branch, of establishing precedent, etc., for, after all, and without being identified as a "Realist" or Hobbesian on such questions (i.e., descriptively but not normatively speaking) superpowers obey international law when it is perceived to be, rightly or wrongly, in their "self-interests," short-term or long-term, and are not accustomed to deferring to third parties. Such dispute resolution in commercial contracts seems to find parties on more equal footing, and the parties are not as structurally adverse to such dispute resolution (and 'losing' does not establish the same sort of precedent). In short, the contract model ill suits the more overtly political nature of the former situation while it is, of course, more commonplace in the latter case. So, while the legal arguments may in fact be impeccable, political variables loom large here (and when that occurs, alas, it trumps the law). In other words, I'm inclined to agree with your legal analysis thus far, I just don't see such cases getting decided solely on their legal merits. But I'm open to persuasion to the contrary as I'm not at all remotely close to being an expert in such matters. And I think it is important to make the legal argument, even if it is ignored...for some day things may be otherwise.


I think, for the most part, that we are agreed that the Court will not be considering only the legal merits in this case. Additionally, I do not claim that there is an established legal answer to the question.

I can see where it would sting the Court a bit to abdicate its role in deciding what the law is. Similarly, prior to Mitsubishi, many courts did not want to give up their role in international litigation. However, the Court recognized that it was the parties' acceptance of the arbitration that governed, not the parochial desire of the domestic courts to be the ultimate authority.

And this is what interests me here. The President signed and the Senate ratified a treaty, as provided for in the Constitution. That treaty gave the ICJ dispute resolution authority. If the Court does not find the ICJ decision binding, isn't it essentially saying that the President and the Senate do not have the authority to conclude a treaty that outsources treaty interpretation? In this sense there really is a constitutional question, for at some point there must be checks and balances on the judiciary's power as well.

You can make the argument that commercial contracts are less important than treaty obligations. But, that is not necessarily true; in my view, a merger agreement between two multinational enterprises is of significantly larger import than the consular notification rights of 51 people. And the question of whether we want the ICJ interpreting treaties for us is easily resolved: we can avoid signing and/or ratifying treaties that contain these provisions, and we can withdraw from treaties we have already signed (as the Bush Administration did in regards to the Optional Protocol of the Vienna Convention).

All that aside, my purpose is not to develop a comprehensive argument for why the Court should find the ICJ's decision binding. My modest contribution is to argue that under an analysis of treaties as contracts between states, there is not any obvious solid footing as to why commercial entities should be held to their commitment to abide by the rulings of third party arbitrators but that States should not. If Tony Kennedy happens to be sitting up late at night in his pajamas surfing TLB, perhaps this small contribution will be what persuades him to come over to the other side. But somehow I doubt it!

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