International courts and tribunals are playing an increasingly important role in the evolution of international law and the emergence of an international legal system. But international courts still face significant challenges in carrying out their missions, concluded judges at a global jurisprudence conference held at Stanford Law School.

The March conference brought together 11 judges from eight international tribunals to discuss their courts’ evolving roles in shaping the rule of law in an interconnected world.

The conference was organized by Stanford Law School faculty, including Allen S. Weiner ’89, associate professor of law (teaching) and Warren Christopher Professor of the Practice of International Law and Diplomacy. “The proliferation of these courts is something everyone has noticed, but the odd thing about them is that there are no formal relationships or a hierarchy among them,” Weiner said.

Judge Hisashi Owada (Japan), International Court of Justice
     As the number of courts has increased, so have questions about their efficacy. Weiner sees a compelling need for judges to begin a conversation about their work “both with each other and with national courts,” if the world is to move toward a true international judicial system.

The case of Jose Medellin, a Mexican national on death row in the United States for the rape and murder of two Houston teenagers, illustrates the complexity of these tribunals’ decisions. In a case brought by Mexico, the International Court of Justice (ICJ) in The Hague— the United Nations’ high court for resolving country-tocountry conflict—said in 2004 that Medellin and 50 other Mexicans on death row were entitled to hearings to consider the impact of the fact that, at the time of their arrests, they were not told of their right to contact Mexican consular officials, as is required by the Vienna Convention on Consular Relations.

The Bush administration agreed on February 28 of this year to follow the ICJ decision by ordering state courts to grant the 51 Mexicans hearings to assess the impact of the lack of consular notification. Then, a week later, it announced that it was withdrawing from the Vienna Convention’s optional protocol that gives the ICJ jurisdiction over disputes related to the treaty. The withdrawal would not affect Medellin and the other 50 Mexican nationals, but would affect future cases. On May 23 the U.S. Supreme Court rejected an appeal by Medellin and the others, saying that the Court wanted to give the states an opportunity to comply with Bush’s order to grant new hearings. The Court reserved the right to hear the appeal and to rule on whether international law should be binding on U.S. courts after the cases have gone through the state courts.

Judge Patrick Lipton Robinson (Jamaica), International Criminal Tribunal for the Former Yugoslavia

 

Experts around the world are watching the situation closely because of the unique tension the case presents between different branches and different levels of government. Implementing treaties is a matter of interpreting the law, which falls into the judicial arena, yet the operation of treaties affects foreign policy, where the executive branch has special responsibilities. The Medellin case has significant potential to affect how the United States complies with future decisions of international tribunals.

Judge Juliane Kokott of Germany, an advocate general at the Court of Justice of the European Communities, said that her court offers a successful model of jurisdiction over states. The court, which sits in Luxemburg, deals with matters regulated by the European Union such as social, environmental, and patent law. Over the past decades, European jurisprudence has developed so that decisions of the European Court are given automatic and direct effect by the domestic courts of European countries.

THE RULE OF LAW IN AN INTERCONNECTED WORLD
Judge Florence Ndepele Mwachande Mumba
(Zambia), member of the Appeals Chamber,
International Criminal Tribunal for the Former
Yugoslavia and International Criminal Tribunal
for Rwanda

The court’s success is notable given the trend of increased globalization, in which sovereignty will continue to evolve and relations between domestic and international courts and institutions will grow more interdependent. The close cooperation of the European Court of Justice with states, and its ability to curtail their power, is one example of an “international case law approach that may one day reign over statutes and treaties,” Kokott said.