Federal Courts, International Tribunals, and the Continuum of Deference
Virginia Journal of International Law, Vol. 43, pp. 675-796, 2003
122 Pages Posted: 5 Sep 2006
The focus of the article is the degree of deference that federal courts should confer on the decisions of international tribunals. The Supreme Court has suggested that "respectful consideration" should be given to international tribunal decisions, but absent further guidance, federal courts have haphazardly addressed the question of what effect to give to their judgments. What is needed is a methodology for deference. For the first time in scholarly literature this article proposes such a methodology for all international tribunals based on seven models that have been applied to different international tribunals and should be applied to dozens of others.
These models are placed along a continuum according to the degree of deference conferred. Each model is briefly presented and applied to a particular tribunal best illustrating the degree of deference conferred. The normative application of each model is then outlined to enable federal courts to apply the model in other contexts and to other tribunals. At one extreme of the continuum is the full faith and credit model, requiring federal courts to treat ICSID tribunal decisions in the same manner as state court judgments. At the other end is the "no deference" model, exemplified in death penalty litigation, in which federal courts confer no deference on decisions of human rights tribunals when interpreting constitutional guarantees. In between these extremes are five other models - the arbitration model (Iran-U.S. Claims Tribunal), the foreign judgment model (European Court of Justice), the Charming Betsy model (World Trade Organization), the Paquete Habana model (International Court of Justice), and the special master model (Claims Resolution Tribunal) - that illuminate how federal courts are conferring, and should confer, varying degrees of deference on international tribunal decisions.
Keywords: International Court of Justice, World Trade Organization, International Tribunals, ICSID
JEL Classification: K33
Suggested Citation: Suggested Citation