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Institutional Settlement in a Globalizing Judicial System 110305 YOUNG.DOC 12/19/2005 3:04 PM INSTITUTIONAL SETTLEMENT IN A GLOBALIZING JUDICIAL SYSTEM ERNEST A. YOUNG† ABSTRACT This article argues that the field of “Federal Courts” scholarship ought to expand to consider the relations not just between state and federal courts, but also between domestic courts and judicial institutions operating at the international level. Both relationships raise similar sorts of “interjurisdictional” problems—issues of standards of review, abstention, procedural defaults, and the like. Moreover, the study of supranational courts would benefit from the Legal Process jurisprudence that dominates the field of domestic Federal Courts law. In particular, I emphasize Henry Hart and Al Sacks’ notion of “institutional settlement,” which holds that decisions should be allocated to particular institutions on the basis of institutional competence and that decisions by the primary institution, once made, should generally be respected absent a sufficiently good reason for overruling them. I illustrate how a Legal Process approach to supranational courts might work through two primary sets of examples. The first involves the tug of war between American domestic courts and the International Court of Justice over foreign nationals convicted of capital crimes in state courts after failure by local authorities to notify the accused of his rights to consular notification under the Vienna Copyright © 2005 by Ernest A. Young. † Judge Benjamin H. Powell Professor of Law, the University of Texas at Austin. J.D., Harvard Law School, 1993; B.A., Dartmouth College, 1990. I have presented versions of this paper at conferences held by the J.B. Moore Society at the University of Virginia School of Law on March 20, 2004, and jointly by the Universities of Texas and Siena at Siena, Italy, on May 31, 2004. I am grateful to the Moore Society, Sandy Levinson, and Francesco Francioni for the opportunities to participate, to my fellow panelists for their feedback, to Sarah Cleveland, Doug Laycock, Ronald Mann, Jenny Martinez, Dan Meltzer, Steve Ratner, Jenia Turner, Joel Trachtmann, Mark Tushnet, and Detlev Vagts for comments on the manuscript, to Carina Cuellar, David Han, Kim Olson, and William Rahm for research assistance, and to Allegra Young for friendly forbearance. Comments are welcome at [email protected]. 110305 YOUNG.DOC 12/19/2005 3:04 PM 1144 DUKE LAW JOURNAL [Vol. 54:1143 Convention on Consular Relations. This issue recently came to a head in the Medellin case, which the Supreme Court elected not to resolve last Term but is likely to see again. The central question in these cases is whether the ICJ should respect domestic rules of procedural default, which bar litigation of Vienna Convention claims in domestic habeas corpus proceedings where those claims were not first presented to the state trial court. The second set of examples involves arbitration proceedings under Chapter 11 of the North American Free Trade Agreement. In the Mondev and Loewen cases, NAFTA panels engaged in what was, for all practical purposes, appellate review of state courts on questions of state law. The question here is whether international law should sanction “denial of justice”-type claims that make domestic law questions re-litigable at the supranational level, and, if so, whether supranational tribunals should adopt a more deferential standard of review. Institutional settlement, I argue, has a good deal to say about both sets of questions. The last part of the article speculates more generally about what a Legal Process approach can tell us about supranational adjudication. It considers some international law principles—like the “margin of appreciation” in the jurisprudence of the European Court of Human Rights, as well as the principle of “complementarity” in the statute of the International Criminal Court—that already incorporate norms of institutional settlement. I argue that institutional settlement has something to offer both skeptics and enthusiasts of supranational adjudication: it can moderate the intrusiveness of such adjudication, while at the same time increasing its legitimacy. TABLE OF CONTENTS I. Back to the Future: Supranational Adjudication and the Legal Process School ................................................................. 1151 A. The Interjurisdictional Problem in Foreign and Domestic Affairs................................................................. 1151 B. Institutional Settlement and the Legal Process Tradition.............................................................................. 1158 II. Two Examples of the Interjurisdictional Problem....................... 1163 A. Avena, Medellin, and the Vienna Convention on Consular Relations............................................................. 1164 B. NAFTA Chapter Eleven and the Loewen and Mondev Cases..................................................................... 1170 III. Taking Transnational Legal Process Seriously........................... 1177 A. International Law and Institutional Settlement .................... 1178 110305 YOUNG.DOC 12/19/2005 3:04 PM 2005] GLOBAL INSTITUTIONAL SETTLEMENT 1145 1. Domestic Law “Excuses” for International Law Violations....................................................................... 1180 2. Second-Guessing Domestic Courts on Domestic Law... 1188 3. Supranational Adjudication and Domestic Lawmaking 1197 B. The Problem of Substantive Overlap...................................... 1200 C. Comparative Institutional Competence ................................. 1206 1. Institutional Capacities of Supranational Tribunals....... 1207 2. The Problem of Comparison............................................. 1212 IV. The Architecture of Supranational Judicial Cooperation......... 1215 A. Foreign Affairs Law or International Law?........................... 1216 B. The Authority to Interpret and Apply International Law... 1221 1. Concurrent or Exclusive Jurisdiction............................... 1221 2. Supremacy or Shared Law................................................. 1229 C. Uniformity or “Double Standards” in International Interjurisdictional Rules .................................................... 1236 D. Improving Existing Supranational Courts.............................. 1243 E. Doctrinal Resources within International Law ..................... 1248 1. The Margin of Appreciation ............................................. 1249 2. Complementarity................................................................ 1252 F. The Politics of Judicial Globalization..................................... 1258 Conclusion............................................................................................. 1260 International law . has at times, like the common law within states, a twilight existence during which it is hardly distinguishable from morality or justice, till at length the imprimatur of a court attests its jural quality. – Justice Benjamin Cardozo1 There was a time when international lawyers had to defend their discipline against the charge that “international law” is an oxymoron. John Austin famously argued that international law can’t really be “law” because there is no single sovereign to enforce it,2 and H.L.A. Hart more recently reached much the same conclusion because, among other deficiencies, international law lacks “secondary rules of 3 change and adjudication which provide for legislature and courts.” 1. New Jersey v. Delaware, 291 U.S. 361, 383 (1934). 2. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 152 (David Campbell & Philip Thomas eds., Dartmouth Publishing 1998) (1832). 3. H.L.A. HART, THE CONCEPT OF LAW 209 (1961). 110305 YOUNG.DOC 12/19/2005 3:04 PM 1146 DUKE LAW JOURNAL [Vol. 54:1143 Even worse, political scientists in the Realist tradition argued that law is practically irrelevant to international relations; that field, they insisted, is instead dominated by national power and self-interest.4 These debates seem to be fading now. Although international law still confronts serious debates about its legitimacy, efficacy, and content, it is increasingly clear that international law functions as law in many important contexts.5 This is true in part because of the proliferation of supranational institutions for the interpretation, application, and enforcement of law, such as the European Court of Human Rights or the tribunals established under the World Trade Organization (WTO) and North American Free Trade Agreements (NAFTA).6 We are, indeed, increasingly surrounded by supranational courts. Eight years ago, Laurence Helfer and Anne-Marie Slaughter spoke of a “renewed millennial faith in the ability of courts to hold states to their international obligations.”7 As Jenny Martinez recently pointed out, “there are now more than fifty international courts, tribunals, and quasi-judicial bodies, most of which have been established in the past twenty years.”8 Professor Martinez goes on to observe that 4. See, e.g., GEORGE F. KENNAN, AMERICAN DIPLOMACY, 1900–1950, at 89–101 (1951); HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 244 (4th ed. 1967) (“Where there is neither community or interest nor balance of power, there is no international law.”). For a more recent example of unabashed Realist thinking, see generally JOHN J. MEARSHEIMER, THE TRAGEDY OF GREAT POWER POLITICS (2001). 5. See, e.g., Anne-Marie Slaughter Burley, International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT’L L. 205, 205 (1993) (arguing
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