The Volokh Conspiracy
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The Cornell Law Review has just published my new article, "Three International Courts and Their Constitutional Problems." The article considers the constitutionality of joining the International Criminal Court in light of largley forgotten debates over two prior international tribunals: the Mixed Commissions for the slave trade in the early 19th century, and the International Prize Court in the early 20th Century. The U.S. ultimately signed onto both projects, but only after changing their scope or jurisdiction to comport with constitutional concerns.
The paper lies at the intersection of international law, constitutional law, and foreign relations. But really its a federal courts paper: the fundamental question is when can the government delegate jurisdiction over core judicial business to non-Article III courts—or even non-U.S. courts.
Here is the abstract from SSRN:
The United States' potential participation in the International Criminal Court (ICC) raises serious constitutional questions that have never been subject to judicial examination. However, in two distinct historical episodes, separated by nearly 100 years, the U.S. considered proposals to join such international courts and found them wanting.
In an earlier article, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, I examined the first such episode, the early 19th century objections international commissions to try American vessels arrested for slave trading. In a reply article, Prof. Jenny Martinez took issue with my analysis, arguing that the constitutional objections raised by John Quincy Adams and others were motivated by ideological considerations.
In this Article, I respond to those arguments, while also further developing the subject by examining the second relevant historical episode, the constitutional debate over the International Prize Court. Those discussions corroborate the constitutional objections raised in the slave courts episode, and suggest yet further constitutional problems with the ICC.
This Article first shows how a full examination of the historical record shows that even those in Congress and the executive that did not share the ideological biases Martinez identifies did not dispute the constitutional objections put forth with the Administration. Moreover, constitutional interpretation by the political branches typically dovetails with political views, but this does not neutralize its significance.
The International Prize Court was a product of the Hague Conference of 1907. The proposed Court would impartially apply the international law of maritime warfare. The Prize Court Treaty was hailed by leading statesmen as a historic development in international law and relations, that would usher in a new era where law, rather than power, ruled international affairs.
Nonetheless, the Senate refused because the treaty would violate Art. III. Because the Prize Court could review for error decisions of the Supreme Court, it would undermine its "Supremacy." Some scholars argued that Congress's power to create non-Art. III courts justified the treaty, or in an argument reminiscent of Martinez's, that the international law subject matter satisfied constitutional concerns. These defenses fell flat. The Senate and the Executive generally recognized the strength of the constitutional objections.
These principles have direct implications for the ICC. While the ICC's standard of review is extremely deferential, it ultimately can under certain circumstances examine national court decisions for error. This would be unconstitutional based on the Prize Court precedent.
To anticipate some objections, I do not argue that U.S. participation in all international tribunals are unconstitutional, rather only with direct jurisdiction over "private rights" cases. (Certain other limitations and restrictions apply, read the fine print.) Thus classic arbitral tribunals or commissions pose no problems.
As it happens, constitutional restrictions on joining the ICC have gotten some attention lately. Ukraine may want to join the Court (it may also have good reason not to, such as significant war crimes committed by its forces, and the lack of enforceability against Russia, which has recently ignored international court decisions with impunity), and its Association Agreement with the EU pledges to do that. However, its Constitutional Court held in 2001 that the ICC treaty is incompatible with the Ukrainian Constitution. I think Kiev is increasingly grateful for that once-obscure ruling, which gives them an excuse to avoid humoring Brussels on an issue that is not obviously in Ukraine's interest.