The ASIL recently released a fascinating collection of 11 speeches made by Justices of the U.S. Supreme Court to the ASIL’s Annual Meetings from 1922 through 2005. (See “A Decent Respect to the Opinions of Mankind . . .” Selected Speeches by Justices of the U.S. Supreme Court on Foreign and International Law (Christopher J. Borgen, ed. 2007). It is striking how often these speeches, particularly the early ones by Chief Justices William Howard Taft and Charles Evans Hughes and Justices Owen J. Roberts and Robert H. Jackson, stressed the need first, for the United States to lead the world in constructing a viable international court to settle interstate disputes and second, the need for the United States to lead by example in participating in such a court. As Borgen indicates in his foreword to this volume, these early addresses cast the United States, the “Nation of Laws,” as the principal architect of the law of nations. (Foreword, Decent Respect, at xxii.) At a time when the more recent ASIL addresses by Supreme Court Justices (by Blackmun, O’Connor, Breyer, Scalia, and Ginsburg in the years from 1994-2005) dealt with the far more parochial issue of whether U.S. law ought to be interpreted in light of what foreign or international judges say, it is striking to be reminded of the internationalist sensibilities of earlier U.S. Supreme Court Justices. Taft, Hughes, Roberts, and Jackson did not hesitate to take a strong interest in the construction of a viable international rule of law and believed that the very idea of turning to judicialized dispute resolution to solve interstate problems was an “American” conception.

Taft’s 1922 address recognized the role of Elihu Root in the design of the Permanent Court of International Justice and of John Bassett Moore as U.S. judge. Taft concluded his speech with the following: “That court is an American invention and it derives its strength from American tradition, and I sincerely hope that we are working towards it.” (Decent Respect, at 7.) Hughes’ 1931 address, delivered in the wake of the failure of the United States to join the League of Nations, was no less enthusiastic about the need and prospects for interstate dispute settlement. While the first part of his speech canvassed the difficulties of international law codification efforts, the second began by noting that “[i]f little has been achieved in promoting the development of international law, as a definite body of law, we have abundant reason for gratification in the promotion of institutions for the peaceful settlement of disputes. Law is not an end in itself but a means for establishing a basis for the mutually advantageous intercourse of peaceful peoples.” (Decent Respect, at 14). The rest of his remarks suggested a close analogy between the role of U.S. courts in promoting the domestic peace over and above the “attainment of an impossible ideal in the certainty of law” and the prospects that international courts could achieve the same at the international level. He argued that it would have been disastrous if the United States had postponed establishing a federal judiciary until the scope of federal regulation for interstate commerce had been fully defined and suggested that the same holds true at the international level since hopes for peace and justice were more soundly based not on codification efforts but on promoting “instrumentalities of peaceful settlement.” (Id.) As this suggests, Hughes put his hopes for progress in international law squarely on the role of international judges.

Roberts’ 1943 address looked forward to the building of “supra-national law” capable of “affecting and binding individual citizens of the nations belonging to the supra-national Government.” (Decent Respect, at 21.) His vision of “international government” also included as a prominent feature “a judiciary to which disputes between the citizens and the supra-national government, between citizens and any nation a party to that government, and between nations, must be submitted for adjudication.” (Decent Respect, at 22). He concluded with the following call to arms: “Our obligation then is to arouse and enliven public sentiment in this country in support of an integration of our own and other nations in a world organization having the purpose and the power to adjust the relations of the peoples of the earth in accordance with the dictates of justice, and to promote and, if necessary, enforce the peaceful composition of all differences and disputes which may occur.” (Decent Respect, at 26.)

Justice Jackson’s first address to the Society, in 1945, considered at length the significance of inter-state dispute settlement through formal adjudication. A few excerpts:

“Advance of civilization does not diminish, it rather multiplies, the occasions and cases of serious dispute among states. But they are less likely to break into war among peoples whose habit it is to regard peaceful ways of settlement as honorable and cutomary.” (Decent Respect, at 30.) ... “It is futile to think, as extreme nationalists do, that we can have an international law that is always working on our side. And it is futile to think that we can have international courts that will always render the decisions we want to promote our interests. We cannot successfully cooperate with the rest of the world in establishing a reign of law unless we are prepared to have that law sometimes operate against what would be our national advantage. In our internal affairs we have come to rely upon the judicial process to settle individual controversies and grievances and even those between states of the Union, not because courts always render right judgments, but because the consequences of wrong or unwise decisions are not nearly so evil as the anarchy which results from having no way to obtain any decision of such questions; in which case each will take the law into his own hands. And in a somewhat similar sporting spirit we must look upon any international tribunal, not as one whose decision always will be welcome or always right or wise. But the worst settlement of international disputes by adjudication or arbitration is likely to be less disastrous to the loser and certainly less destructive to the world than no way of settlement except war.” (Decent Respect, at 40).

From a contemporary perspective these ideas appear jarringly idealistic and decidedly out of tune with political reality. Indeed, given recent attempts by the U.S. Congress to preclude U.S. judges from even citing to the judgments of international courts (and successful enactment of one such provision in the Military Commissions Act of 2006), any U.S. judge today who would dare to suggest that she (much less her fellow U.S. citizens) should be bound by “supra-national” law as found by an international court, especially when these decisions are not in accord with the immediate “national interest,” would likely find herself the target of an impeachment campaign – or at least the subject of a Congressional inquiry and a media circus. Judges who would today say some of the things Taft, et al., once proudly proclaimed before our Society would need to defend their patriotism before a gaggle of critics.

Suggestions that the U.S. resume its leadership role in promoting international adjudication sound peculiarly hollow at a time when the United States government continues to oppose participation in the International Criminal Court (ICC), has concluded numerous bilateral agreements at considerable diplomatic expense merely to make sure U.S. nationals never appear before the ICC, has withdrawn from the Optional Protocol to the Vienna Convention on Diplomatic Relations (after losing one too many cases before the International Court of Justice (ICJ) concerning the interpretation of that treaty), and continues to adhere to a de facto policy of not adhering to any new treaty that would require submission of underlying interpretative disputes to that Court.

The sentiments of Taft, et al., also appear out of sync with those of current Justices of the U.S. Supreme Court. While the U.S. Supreme Court has been generally receptive to international arbitration, including with respect to matters that have public policy implications such as antitrust, it has (thus far) resisted arguments that it might be formally bound by a decision of the ICJ, even when the ICJ renders a decision under a self-executing treaty ratified by the United States. While the current Supreme Court has suggested that the ICJ’s views are owed “respectful consideration,” that “respect” was not enough to overcome the Supreme Court’s view that the ICJ’s interpretation of international law was erroneous and would not be followed in Sanchez-Lama v. Oregon (see slip opinion at http://www.supremecourtus.gov/opinions/05pdf/04-10566.pdf ). And while the Court’s decision in Sanchez- Lama left open whether the Supreme Court would enforce an ICJ decision on specific parties on the basis that a decision was res judicata, an issue now before the Court in the latest round of the Medellin litigation (see Medellin v. Dretke here, an ASIL Insight concerning subsequent developments here; and this posting by Julian Ku at Opinio Juris identifying some of the issues now pending before the Supreme Court (see here). Most observers of the Supreme Court believe that the least likely outcome in that case would be a Supreme Court decision that explicitly defers to the ICJ because that decision is self-executing and binding. Far more likely would be a decision that defers either to the Texas courts or to the Executive’s determination that U.S. state courts should respect the ICJ’s ruling in this instance.

The proposition that the United States must follow the decree of an international court with which it disagrees because this is necessary to uphold the more important principle that states should settle their disputes peacefully is not something one hears from any of the branches of U.S. government today. Nor is that general sentiment something that one hears from any of the leading contenders for President. While some of the Presidential candidates have voiced (often vague) support for increased U.S. participation with the ICC (for a survey of the views of the Presidential candidates on the ICC in the website of the American NGO Coalition for the International Criminal Court, see here), not a word has been uttered (at least in my hearing range) in favor of recognizing supranational adjudicative decisions as binding by our courts. Apart from a few scattered voices from the World Federalist Society and within our own Society, there is not a vocal constituency in the United States in support of international courts and a very loud, aggressive campaign waged by a few against them.

Consider the plight of proponents of the Law of the Sea Convention (LOS). At this writing this treaty, despite endorsements from every Chairman of the U.S. Joint Chiefs of Staff, every living Legal Adviser to the U.S. Department of State, every President since Ronald Reagan, and an incredibly diverse group of NGOs and business groups across the political spectrum, may not be approved by the Senate of the United States. (For the testimony before the Senate of AJIL co-editor-in-chief, Bernard H. Oxman, see here.) The most coherent reason offered to date for opposing a treaty that in the views of our own military establishment would enhance our security is precisely that submission to international dispute settlement could undermine U.S. security. (See Washington Post op-ed by Jack Goldsmith and Jeremy Rabkin at here.) Goldsmith and Rabkin’s opposition is particularly revealing because it is not about a peculiar objection to the structure or composition of any particular permanent international court. The LOS adheres to a cafeteria approach whereby in most cases parties are free to pick from a menu of dispute settlement options, including arbitration. (See Article 188, LOS.) The small but very powerful minority who oppose the LOS because it might involve second-guessing the United States, notwithstanding the Convention’s own military necessity exception from dispute settlement, ground their opposition precisely on the essence of international dispute settlement: namely that such judgments would be made by a majority of non-U.S. adjudicators. (See also this column by Phyllis Schlafly, which draws an explicit connection between the Medellin case and LOS here.)

For such nationalists, the Law of the Sea Convention, despite its manifold benefits to the United States, should not be ratified because it relies on triadic dispute resolution in which judges from the United States are, by design, balanced with judges from other nations. The prospect that even a three person arbitral panel may involve, if the parties fail to agree, appointment of third arbitrator by such persons as the UN Secretary General, is apparently enough of a threat to U.S. interests that Presidential candidates such as Mike Huckabee have branded the fight against ratification of LOS “one of the defining issues of our time;” to Huckabee, negotiation of the treaty is “the dumbest thing we’ve ever done.” (See New York Times column by Gail Collins of Nov. 3rd, 2007 citing Huckabee here.) Resistance to international dispute settlement, wrapped in the mantle of defense of U.S. “sovereignty” has led other Presidential contenders, such as Rudy Guiliani and Fred Thompson to oppose ratification of LOS and appears to have led even erstwhile supporters of that treaty, such as John McCain, to say that they have changed their minds. (For a survey of Presidential candidates’ positions on this as well as other issues, see here.)

Opposition to LOS on this basis reflects a simple political reality recognized by Justice Jackson back in his 1945 speech. “The trouble has been,” he wrote, that the advocates of international law have had too little of what Mr. Justice Holmes called “fire in the belly,” while the extreme nationalists have had too little else.” (Decent Respect, at p. 32.) Now it might be the case that opposition to LOS is unique and is not reflective of general sentiments towards international dispute settlement with respect to other issues, such as international trade or investment disputes, but I am not so sure of that.

There are other straws in the wind even with respect to the WTO and U.S. investment agreements, including Chapter 11 of the NAFTA, suggesting that the U.S. commitment to international dispute settlement even in those settings is fragile and open to re-assessment. (For citations to the views of Presidential candidates Ron Paul and Dennis Kucinich on such topics, see, for example, an Opinio Juris piece by Julian Ku here.) A number of Democratic Presidential candidates, while expressing views that are less extreme than those of Paul and Kucinich, have suggested that they want to re-examine the merits of the NAFTA, future free trade agreements, and even the WTO’s dispute settlement system. While the arguments for such re-evaluation of U.S. participation in these regimes vary, a common feature of resistance to these regimes rests on the fact that these subject U.S. decisions to supranational adjudicative scrutiny. To many, including perhaps a majority of the members of the U.S. House of Representatives, it is no longer self-evident that it is in the national interest of the United States to continue to comply with international arbitral or WTO judgments that find the U.S. in violation of international economic rules that the United States, more than any other nation, has fashioned. Further, to the extent that some resist LOS dispute settlement because of the possibility of supranational scrutiny over a question that the United States considers to be a “national security” matter, the same fears might be triggered by dispute settlement over economic measures. As recent investor-state claims involving Argentina indicate, even investor-state arbitral claims may result in supranational scrutiny over “national security” claims. (See the cases discussed in this ASIL insight.)

And resistance to at least some forms of international adjudication is not restricted to some members of the current Congress or some recent Presidential contenders. U.S. ambivalence about such matters extends back to the League of Nations. Even adherence to the Uruguay Round that established the WTO back in 1994 narrowly escaped being conditioned on establishment of a special “Dole Commission” that would have evaluated the win/loss record of the United States within the WTO and would have been empowered to recommend U.S. withdrawal from that regime if that record was unsatisfactory.

There is a risk in this country of an emerging bipartisan consensus against the very thing that Taft, et. al., considered to be a basic building bloc of the international legal order: international dispute settlement. Given that very few if any of our current fears have anything to do with the precise structure of international dispute settlement bodies, it is hard to resist the conclusion that what such fears may reflect, above all else, is a serious and profound disrespect for the views of international adjudicators of all stripes – even when these may represent the “opinions of mankind.”

Footnotes:

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