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International Courts and the U.S. Constitution: Reexamining the History

72 Pages Posted: 9 Feb 2012  

Jennifer (Jenny) S. Martinez

Stanford Law School

Date Written: February 8, 2012


Does the United States Constitution pose an insurmountable barrier to the United States’ participation in international courts and tribunals? In a recent article, The Constitutionality of International Courts: The Forgotten Precedent of Slave-Trade Tribunals, Professor Eugene Kontorovich argues that the United States’ participation in the International Criminal Court would violate the U.S. Constitution, both as an unconstitutional delegation of federal judicial power to a court not created in accordance with Article III of the Constitution and as a violation of the Bill of Rights’ protections attendant to criminal trials in the United States. Kontorovich bases his argument primarily on history, specifically the opposition of some members of the U.S. government to membership in international courts that enforced laws prohibiting the slave trade in the nineteenth century. In response, I argue that Kontorovich has misread this bit of history. First, Kontorovich overstates the significance and sincerity of the constitutional objections. Second, contrary to Kontorovich’s assertions, the international slave-trade tribunals did not exercise criminal jurisdiction, but rather a type of civil in rem jurisdiction. This type of civil jurisdiction was well recognized in American admiralty law in the early nineteenth century and was extensively used in U.S. court cases involving the forfeiture of ships under domestic laws prohibiting the slave trade. Third, and most fundamentally, Kontorovich misunderstands the nature of the constitutional objections to membership in the international courts. When examining the sources more carefully, one sees that the individuals making these objections expressed concern about subjecting Americans to trial for violations of American law in foreign courts, a concern that they expressly stated would not be present in trials for violations of international law. The problem, in their view, was that the general law of nations still allowed the slave trade. As these men understood the law of nations, the actions of one or even two countries could not change the general law of nations. The United States was free to prohibit the slave trade for its citizens as a matter of its domestic law, but then the source of the legal prohibition would be domestic law, and it would be constitutionally suspect to delegate the power to enforce that law to an international tribunal. That — and not the supposedly criminal nature of the courts — was the key distinction between the proposed slave-trade tribunals and the other international arbitration bodies, which were seen as having been charged with implementing law-of-nations obligations, rather than municipal law. By the time the United States eventually ratified the treaty for the slave-trade courts in 1862, however, the general law of nations prohibited the slave trade. No one raised serious constitutional objections at that time. Thus, if anything, the slave-trade tribunals stand alongside the rest of the nineteenth-century arbitration commissions in which the United States participated. The tribunals thus serve as a precedent for the constitutionality of participation in international courts and tribunals as a means for interpreting and enforcing widely recognized norms of international law.

Keywords: International Courts, International Criminal Court, Constitution

Suggested Citation

Martinez, Jennifer (Jenny) S., International Courts and the U.S. Constitution: Reexamining the History (February 8, 2012). University of Pennsylvania Law Review, Vol. 159, p. 1069, 2011; Stanford Public Law Working Paper No. 2001650. Available at SSRN:

Jennifer (Jenny) S. Martinez (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
650-725-2749 (Phone)

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