What effect should rulings of international courts have in domestic courts? In the U.S., debate has centered on a series of rulings by the International Court of Justice (ICJ) on the application of the Vienna Convention on Consular Relations (VCCR). The VCCR, a multilateral treaty that the United States ratified in 1969, grants foreign nationals the right to seek the assistance of their consulates in the event that local authorities arrest them. An Optional Protocol to the VCCR gives the ICJ jurisdiction over disputes relating to the interpretation and application of the treaty. Since the late 1990s, the ICJ repeatedly has ruled that the United States has violated the VCCR. In its 2004 Avena judgment, the ICJ ruled that, where American courts had convicted foreign nationals and sentenced them to "severe penalties," the United States must remedy its violations by providing judicial review and reconsideration of the convictions, notwithstanding procedural bars under local law.
The United States withdrew from the Optional Protocol after Avena, thereby eliminating the possibility of future adverse judgments in VCCR cases. It remains party to scores of other agreements granting the ICJ jurisdiction to resolve disputes, however, and the domestic force of ICJ rulings, and international judgments generally, remains a vital question. In the much anticipated Sanchez-Llamas v. Oregon, a divided Court issued its most definitive ruling yet on subject. Sanchez-Llamas concerned the weight that domestic judges should give to Avena and other judgments that the ICJ had issued before the United States' withdrawal from the Optional Protocol. More specifically, the case concerned the effect that the ICJ's interpretations of the VCCR should have in American courts.
Both Chief Justice Roberts and Justice Breyer agreed that the ICJ's judgments merited "'respectful consideration." They disagreed, though, on what "respectful consideration" required. The Court's opinion reflects what might be called a dualist approach: in the absence of a domestic act of incorporation, international judgments have only "information," not "disposition," value for domestic courts. International judgments can supply good arguments and helpful analysis for domestic courts to use in their own treatment of legal problems, but they cannot influence a case by virtue of their status as judicial pronouncements. By contrast, the dissent adopts the comity model. That model calls for an informal, cooperative relationship between international and national judiciaries. On this view, international judgments lack binding authority, but domestic courts should defer to them, where possible, in the interests of justice and global uniformity.
This Article will show why the dualist approach affords the superior means of accommodating the sort of international judgment at issue in Sanchez-Llamas. Part I describes Sanchez-Llamas, situating the case in the context of the wider VCCR controversy of which it is a part. Part II explores the deeper arguments that lie below the surface in the case. Part II(A) shows how the Court's opinion reflects a dualist approach and discusses the legitimacy arguments that support that approach. It shows how dualism allows domestic judges to balance the competing demands of international order and domestic authority. Part II(B) explores the comity model that the dissent endorses and explains why the Court was right to reject it. Part III concludes.
Movsesian, Mark L., "Judging International Judgments" (2007). Faculty Publications. 99.