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Washington Law Review

Julian G. Ku

Abstract

In Medellin v. Dretke, the U.S. Supreme Court squarely considered the domestic judicial enforceability of a judgment by the International Court of Justice for the first time. Although the Court ultimately dismissed the case due to President George W. Bush's intervention, the issue that won the Court's attention—the domestic legal status of international tribunal judgments—will almost certainly return to the Court in the near future. When it does, the Court will be faced with calls from leading scholars to enforce the judgments of international courts and tribunals as part of a "new world court order," characterized by cooperation between international and domestic courts. This Article takes issue with that stream of scholarship by laying out the first comprehensive constitutional critique of judicial enforcement of international tribunal judgments. U.S. constitutional doctrine and practice with respect to the enforcement of international law obligations confirms that domestic courts have no independent authority to implement international tribunal judgments. Indeed, independent judicial enforcement of international tribunal judgments of the kind sought by the petitioners in Medellin would result in potentially excessive delegations of the U.S. foreign affairs power. To avoid this constitutional problem, this Article recommends that courts treat all such international tribunal judgments as nonself- executing absent a clear statement in the treaty that judicial enforcement is permitted.

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