Saturday, January 19, 2008

International Law in U.S. Court

The topic of international law in U.S. courts may have reached its peak after the Supreme Court ruled that juvenile death penalties were unconstitutional in Roper v. Simmons (2005), but it continues to be a popular topic for scholarship. Recent contributions include:

  • Judge Diane Wood (a personal favorite as well as "L" alum) spoke at Duke in November;

  • Northwestern Prof. John McGinnis has co-authored a piece in the forthcoming issue of the Stanford Law Review, titled Should International Law be Part of Our Law?, (he is a frequent commentator on this issue); and

  • NYU Prof. Jeremy Waldron presented a colloquium titled "Partly Laws Common to All Mankind: Foreign Law in American Courts" (from International Law Reporter).

All are good, but Judge Wood's talk was particularly interesting, and not only in that it timely addresses Medellin v. Texas (what effect does a U.S. state have to give an ICJ decision). Her insightful discussion noted that the U.S. is party to many treaties with arbitration clauses, and that the ICJ decision could be treated as an arbitral body (albeit with a fancy name-MP). The standard arbitration review questions then become the standard for enforcement, i.e. was there an agreement (Art. 36 of the ICJ Statute), was it within the scope of the agreement (Vienna Convention of Consular Relations and Art. 36 of the ICJ Statute), and is there some public policy which forbids enforcing it?

No comments: