From Neglect to Defiance? The United States and International Adjudication

Abstract

Recent decisions by the three branches of the US Government have displayed contradictory attitudes towards international adjudication. The executive branch disputed the reasoning of the International Court of Justice in the Avena, Oil Platforms, and Wall cases, but continues to appear before the Court. While the US Supreme Court confirmed the 'recognition' by the US legal order of international law in general and human rights law in particular, it also denied the review of the death penalty for a Mexican national, Osvaldo Torres, despite the Avena proceedings. Yet, following the 2004 ICJ Avena decision, Oklahoma reversed the death penalty for Torres. At the same time, the US Congress prepared the implementation of the WTO dispute settlement ruling on Foreign Sales Corporations, and the Senate considered giving its advice and consent to the ratification of the UN Convention on the Law of the Sea, and thus to new mandatory dispute settlement. US attitudes are heavily influenced by the effects of international adjudication on domestic constituencies. In the eyes of many Americans, popular sovereignty renders decisions of international judges dubious. But the US, as the world's only superpower, has considerable stakes in international order and is thus unlikely to withdraw from international dispute settlement altogether. The answer to Lord Ellenborough's famous rhetorical question, 'Can the Island of Tobago pass a law to bind the rights of the whole world?' may well be yes, where the world has conferred such binding authority through treaty. Justice Stephen Breyer 1