Should the United States Obey the Decisions of the International Court of Justice?

The Supreme Court's refusal to force Texas to obey the International Court of Justice's decision in Medellin raises the more general issue of whether it is a good idea for the US to obey ICJ rulings that override US domestic law. Academics and others who defend the use of international law to displace domestic law argue that the US should pay greater deference to the ICJ.

In my view, there is little reason to believe that ICJ decisions are likely to establish better legal rules than those produced by our domestic law. As John McGinnis and I discuss in this article, the ICJ and other similar international courts are deeply suspect because most of their judges represent oppressive dictatorships or, at best, unaccountable elites from democratic states. This "democracy deficit" of ICJ rulings greatly reduces the chance that an ICJ decision overriding US law will impose a better rule than the one it displaces.

US law has many flaws, some of which I love to flog here on the VC. However, it is produced by a generally democratic political process that imposes at least modest checks on the power of elites. By contrast, many of the ICJ's judges are representatives of authoritarian or totalitarian governments. Among the court's current 15 menbers are 7 who represent authoritarian or dubiously democratic regimes, including judges from Russia, China, Jordan, Morocco, and Venezuela. In this 2004 paper, Eric Posner and Miguel de Figueiredo provide evidence showing that the ICJ's judges are biased in favor of their home country's interests and those of other states with similar ideologies and ethnic characteristics. Even the judges appointed from democratic states get their positions through highly nontransparent processes that have none of the checks and balances of, for example, the US Supreme Court nomination process. How many US lawyers (to say nothing of ordinary citizens) have even heard of Thomas Buergenthal, the American member of the ICJ?

The fact that the ICJ is composed of representatives of dictatorships and unnaccountable elites doesn't mean that all of its decisions are wrong or that it will never come up with good legal rules. On average, however, the legal rules established by a democratic process are likely to be superior to those promulgated by the minions of repressive regimes and unrepresentative legal elites who dominate the ICJ. In the human rights field in particular, representatives of dictatorships have strong incentives to promote rules that facilitate repression rather than freedom.

Despite the ICJ's institutional flaws, it might still be advantageous for the US to adhere to ICJ rulings in particular instances. For example, commitment to obeying ICJ decisions in a particular sphere might be necessary to obtain valuable concessions from other nations in a treaty negotiation process. However, the US and other democratic states should not obey the ICJ merely because of any independent legitimacy its decisions have or because those decisions supposedly constitute binding international law. Doing so is likely to saddle us with legal rules systematically inferior to the ones the domestic lawmaking system produces.

There is much to decry in contemporary American law. But greater fealty to the ICJ is unlikely to improve it.