Transnational Justice & National Sovereignty
International Adjudication and U.S. Policy Past, Present, Future
Bruno Simma
Professor, Ludwig-Maximilians-University, Munich, Germany, and University of Michigan Law School, Ann Arbor, Michigan

Never before in the history of international relations has international adjudication understood as the legally binding settlement of international disputes by an impartial third party been as intensive as today. International courts and tribunals are increasing in numbers, and the caseload of some of these institutions appears to explode.

Such third-party adjudication of international disputes is an expression of both universal and American values peace, justice, equality and fairness. Therefore it is not surprising that during most of its history, the United States has been a faithful supporter of transnational justice realized by international adjudication. What is a cause for concern, however, is that this traditional support for international adjudication by the United States seems to be diminishing. Such a waning of support coincides with the emergence of the United States as the sole remaining superpower. However, it is precisely this status of the United States which renders its attitude towards the peaceful settlement of international disputes by legal means so decisive.

With the conclusion of the Jay Treaty in 1794, the young United States stood at the cradle of the development of international adjudication. In the decades that followed some of the most important international arbitral awards were rendered with the involvement of the United States the Alabama arbitration probably being the most prominent example. At the two Hague Conferences of 1899 and 1907, the establishment of a permanent international tribunal was one of the central concerns of the United States delegation. But at that time, in the heyday of State sovereignty, States were only able to agree to the establishment of a Permanent Court of Arbitration, consisting of little more than a list of arbitrators and a permanent secretariat. Nevertheless, the Hague Conference marked the beginning of the institutionalization of international adjudication. Two decades later, the first international body of truly judicial character, the Permanent Court of International Justice, was again inspired by American preparatory work.

Still, already at the beginning of the 20th century, the United States encountered certain specific difficulties deriving from its democratic form of government. At a time when in Europe foreign policy was still considered a prerogative of the executive, the U.S. Senate was to give its advice and consent to every compromis (special agreement) submitting U.S. interests to third-party adjudication. After World War I, the refusal by the Senate to approve U.S. ratification of the Covenant of the League of Nations as well as the Statute of the Permanent Court of International Justice certainly constituted one of the reasons for the demise of these institutions.

At the dawn of the new millennium, international adjudication again finds itself in a process of profound transformation. Whereas hopes for the development of the International Court of Justice towards a kind of "constitutional" court of the international community might have faded away, new courts and tribunals with more limited scopes of jurisdiction abound, both at the universal and at regional levels. Some of these bodies are accessible not only to States but also to individuals and companies.

U.S. participation in these judicial Institutions, however, is declining. After the controversial decision of the World Court to take on the merits in the Nicaragua case, the United States withdrew from compulsory jurisdiction. Contrary to most of its allies, the United States has yet to join the UN Convention on the Law of the Sea, which provides for the compulsory settlement of disputes by the Hamburg Tribunal for the Law of the Sea or other means. U.S. opposition against the Rome Statute of the International Criminal Court can only partly be explained by legitimate concerns for American troops abroad. The WTO Dispute Settlement Body operates under the permanent threat of U.S. withdrawal. In two recent cases involving the lack of consular notification prior to the trial and execution of nationals of other countries, the U.S. Supreme Court has refused to provisionally halt the execution of these foreigners in order to give due regard to the provisional measures rendered by the Hague Court. Neither did the U.S. Government use its constitutional leverage to demand compliance from the Virginia and Arizona authorities in these cases.

International adjudication derives its authority from the very sources that have made America a power based on the rule of law, which is, as Justice Sandra Day O'Connor so aptly observed, fundamental to the existence of a free society, and separates civilization from anarchy. Therefore, further and more active participation of the world's only superpower in judicial settlement of international disputes is not only in the best interest of the international community but also in the best interest of the United States.