A conversation in the comments section of one of last week’s posts deserves its own post. The conversation was geared toward answering this question: If the International Court of Justice (ICJ) rules some act illegal, is the act definitively illegal? Commenter Dan and I took opposing sides, him answering no, me answering yes.
My position was that UN Charter signatories are bound by UN Charter Art. 93 to be an “ipso facto part[y] to the Statute of the International Court of Justice” and by Art. 94 “to comply with the decision of the International Court of Justice in any case to which it is a party.” I noted that per the ICJ Statute Art. 36, the ICJ can rule only on matters regarding international agreements. Also, per ICJ Statute Art. 36(6), if there is a disagreement about whether the ICJ has jurisdiction over a certain case, the ICJ makes the final determination.
Dan introduced several arguments centered around this question: What is the relationship between international law and municipal law? He argued that there were controversies over competing jurisdictions and that my argument glossed over these complexities. He offered as evidence three U.S. Supreme Court cases: Sanchez-Llamas v. Oregon, Medellin v. Texas, and Breard v. Greene. In each of these cases, the Supreme Court’s decision conflicted with the ICJ’s decision.
I think the mistake both of us made is this: the original question about the definitiveness of ICJ rulings was about the ICJ’s advisory opinion about Israel’s West Bank barrier. However, neither of us looked at the specific relationship between Israeli law and international law. And as John O’Brien wrote in International Law, “The manner in which international law is regarded will depend on the constitution of the particular country.”
Israel has no written constitution, but I believe an examination of Israeli court cases actually demonstrates the validity of Dan’s overall point. In a 1956 Israeli Supreme Court ruling about a case involving the General Armistice Agreement signed by Israel and Jordan on the island of Rhodes, the court decided:
The Rhodes agreement is a Treaty between Israel and another State. Whatever its force and validity according to international law, it is not law which the Israel courts will or can enforce. The rights which it grants and the duties which it imposes are the rights and duties of the States which concluded the Treaty and its implementation is a matter for them alone to secure by those special means which are usual to ensure the implementation of international treaties. Such a Treaty is not given to the jurisdiction of the courts of this country except and to the extent that it, or the rights and duties which flow from it, have been embodied in the law of the land and have acquired the force of binding law. In such circumstances, it must be pointed out, the Court would then have reference not to the Treaty as such but to the law which alone gives it validity for domestic purposes.
Thus, in the Israeli Supreme Court cases involving the separation barrier, the court based its ruling on only Israeli, and not international, law.
This international-municipal law relationship is similar, though not identical to that in the U.S. In the 1888 Whitney v. Robertson ruling, the U.S. Supreme Court determined:
By the Constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other. . . . [I]f the two are inconsistent, the one last in date will control the other. . . .
Perhaps this brings us to another question. As John O’Brien also wrote:
One noticeable feature sine 1945 has been that, in those situations where there has been the collapse of an entire political system, those drawing up the new constitution have often made express reference to international law in the hope of confining any future government to internationally agreed norms.
Has this been successful? Are there implications for the billiard ball model?
