Roberts Rejects the ICJ

On June 28, 2006, in General, by Neil Stevens

While many of us have been worked up about the ICC, the ICJ still exists, and the Chief Justice is on the case. Via Bench Memos I found this interesting writeup that shows John Roberts as not hesitating to lay down American law over foreign junk:

Bustillo asserts that since Breard, the ICJ’s LaGrand and Avena decisions have interpreted the Convention to preclude the application of procedural default rules to Article 36 claims. Although the ICJ’s interpretation deserves “respectful consideration,” Breard, supra, at 375, it does not compel the Court to reconsider Breard’s understanding of the Convention. “The judicial Power of the United States” is “vested in one supreme Court . . . and . . . inferior courts.” U. S. Const., Art. III, §1. That “power . . . extend[s] to . . . treaties,” Art. III, §2, and includes the duty “to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177. If treaties are to be given effect as federal law, determining their meaning as a matter of federal law “is emphatically the province and duty of the judicial department,” headed by the “one supreme Court.” Ibid. Nothing in the ICJ’s structure or purpose suggests that its interpretations were intended to be binding on U. S. courts. Justice Roberts goes on to find that the ICJ’s interpretation of the VCCR is simply wrong.

The dissent, written by Justice Breyer, also refused to endorse this view, and “assumed that the ICJ decisions are not binding.” Instead, the dissent argued that “respectful consideration” should have required the Court to give deference to the ICJ here and spends lots of ink pointing out that the ICJ has often been cited by U.S. Courts and the Supreme Court.

Just imagine if Breyer were in the majority. Even if Breyer says the ICJ’s word isn’t legally binding, if he claims the Supreme Court has to follow it, then the effect is the same as if the ICJ were a higher court.


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