The Federal Judicial Power and the International Legal Order

Abstract:     
This essay considers the Supreme Court's decision last Term in Sanchez-Llamas v. Oregon against the backdrop of debates in the legal academy between "internationalists" and "constitutionalists." Internationalists consider the U.S. judiciary as part of a "global community of courts," emphasize the values of international cross-fertilization and harmonization, and view international law as directly permeating, and often having primacy within, the U.S. legal system. Constitutionalists, by contrast, distinguish between the international and domestic legal systems, emphasize constitutional structure as a limitation on the domestic effect of international law, and generally advocate political branch rather than judicial control over the domestic implementation of international legal obligations. Sanchez-Llamas was an important test case for the internationalist perspective. The petitioners there, with the support of internationalist scholars, were seeking to have the Supreme Court create domestic remedies to help effectuate compliance with a multilateral treaty, and to set aside traditional state law procedures in order to implement an interpretation of the treaty that had been adopted by an international tribunal. In rejecting this effort, the Court made clear that the Article III federal judicial power plays an important mediating role between the United States and the international legal system. Under the Court's approach, international law neither gives U.S. courts special powers nor limits their authority to decide cases, and U.S. courts are to consider the application of international law against the backdrop of traditional domestic remedial and procedural restrictions, even if the result is disuniformity in treaty interpretation. This envisioned mediating role for the federal judicial power has potential implications for a number of other areas of U.S. foreign relations law.

Keywords: international court of justice, treaties, Article III, federalism

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