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Three international courts and their constitutional problems

What international court has a seat in The Hague, breaks new ground by hearing cases directly involving individuals, and is hailed by leading statesmen and jurists as heralding a new age where international law, not self-interest, will rule the affairs of states – but despite early U.S. support for the Court, encounters objections in the Senate about its constitutionality?

If you said the International Prize Court you would be right (you would also be right if you said the International Criminal Court, but less exotic). Created at the 1907 Hague Peace Conference, the Court was every international lawyers’ joy until the U.S. Senate refused to ratify the treaty on Art. III grounds.

In my new paper, Three International Courts and Their Constitutional Problems, forthcoming in the Cornell Law Review and just posted on SSRN, I explore the constitutional objections to the IPC and relate them to the ICC, which has some of the same difficulties, but magnified by an anti-reservation rule that prevents papering over constitutional difficulties.

The bulk of the article discusses the constitutional lessons of an ever earlier set of international courts that the U.S. snubbed, the mixed commissions for slave trading created by Britain and other maritime powers. In an prior, more extensive article, I explored the history of the U.S. rejection of such arrangements on constitutional grounds, and found that it suggests principles that would obstruct the U.S. acceptance of the ICC treaty. Prof. Jenny Martinez of Stanford responded with a lengthy critique of my article, arguing I misconstrue various pieces of historical evidence and the broader historical context.

This paper responds to Martinez’s criticism, and in particular her claim that the constitutional arguments made by the Monroe Administration should not be taken seriously because they were insincere make-weights to support desired policy outcomes. The debate involves some interesting questions of the use of history and political branch constitutional interpretation, especially in questions of foreign relations.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.

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