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Court to Court

Published online by Cambridge University Press:  27 February 2017

Anne-Marie Slaughter
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Extract

Leave aside the question whether the indication of provisional measures by the International Court of Justice in the Breard case was binding on the United States as a matter of international or domestic law. Scholars will continue to differ on this question; government decision makers will reach their own conclusions. Leave aside that the state of Virginia violated a solemn treaty obligation, a treaty that the Supreme Court is obliged to uphold as the supreme law of the land. Without denigrating the power of these arguments, a less contentious case can be made for the granting of a stay—a case based less on compulsion than on civility.

Type
Agora: Breard
Information
American Journal of International Law , Volume 92 , Issue 4 , October 1998 , pp. 708 - 712
Copyright
Copyright © American Society of International Law 1998

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References

1 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 817 (1993). By contrast, legislative or “prescriptive comity” is “the respect sovereign nations afford each other by limiting the reach of their laws.” Id.

2 Joseph Story, Commentaries on the Conflict of Laws §38 (Arno Press 1972) (1834).

3 Howe v. Goldcorp Invs., Ltd., 946 F.2d 944, 950 (1st Cir. 1991).

4 Roby v. Corporation of Lloyds, 996 F.2d 1353, 1363 (2d Cir. 1993) (citing Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985)).

5 Omron Healthcare Inc. v. MacLaren Exports Ltd., 28 F.3d 600, 604 (7th Cir. 1994).

6 833 F.2d 680, 685 (7th Cir. 1987).

7 Compare Dow Chem. Co. v. Castro Alfaro, 786 S.W.2d 674, 687 (Tex. 1990) (Doggett, J., concurring) (“Comity—deference shown to the interests of the foreign forum … is best achieved by avoiding the possibility of incurring the wrath and the distrust of the Third World as it increasingly recognizes that it is being used as die industrial world's garbage can.”) (internal quotation marks and citations omitted) with Sequihua v. Texaco, Inc., 847 F.Supp. 61, 63 (S.D. Tex. 1994) (“exercise of jurisdiction by this Court would interfere with Ecuador's sovereign right to control its own environment and resources”; the case should thus be dismissed on comity grounds).

8 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947) (applying the forum non conveniens doctrine to dismiss a New York case in favor of a Virginia forum), quoted in Piper Aircraft v. Reyno, 454 U.S. 235, 241 (1981) (dismissing a case brought in the United States in favor of a Scottish forum).

9 833 F.2d at 685.

10 The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9 (1972).

11 In re Application of Euromep, SA, 51 F.3d 1095, 1101 (2d Cir. 1995).

12 South Carolina Ins. Co. v. Assurantie Maatschappij “De Zeven Provincien” NV, [1986] 3 W.L.R. 398 (1986), discussed and quoted in Euromep, 51 F.3d at 1100 n.3.

13 51 F.3d at 1100 n.3.

14 United States v. Then, 56 F.3d 464, 468–69 (1995).

15 Id. at 469.

16 Id.

18 Thompson v. Oklahoma, 487 U.S. 815, 869 (1988).

18 117 S.Ct. 2365, 2405 (1997). Writing for the majority in the Printz case, Justice Scalia again rejected Justice Breyer's invitation to make a comparative analysis, with the assertion that “such comparative analysis [is] inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one.” Id. at 2377 n.11. On the other hand, in another case decided during the 1997 Term brought by several members of Congress challenging the line-item veto, Chief Justice Rehnquist pointed out that “[t]here would be nothing irrational about a system which granted standing [to legislators] in these cases; some European constitutional courts operate under one or another variant of such a regime … . [although] it is obviously not the regime that has obtained under our Constitution to date.” Howell v. Raines, 117 S.Ct. 2312, 2322 (1997).

19 Sandra Day O'Connor, Broadening our Horizons: Why American Judges and Lawyers Must Learn about Foreign Law, Int'l Jud. Observer (Int'l Jud. Acad./ASIL), June 1997, at 2 (article adapted from speech given by Justice O'Connor at the 1997 spring meeting of the American College of Trial Lawyers).

20 Justices See Joint Issues with the EU, Wash. Post, July 8, 1998, at A24. The quote is from Justice O'Connor. Justice Breyer added the following comment: “Lawyers in America may cite an EU ruling to our court to further a point, and this increases the cross-fertilization of U.S.-EU legal ideas.”

Other members of the delegation included Chief Judge Richard Arnold of the Eighth Circuit and Texas Chief Justice Tom Philips. Press Briefing in Brussels, U.S. Justices Compare U.S., EU Judicial Systems (July 8, 1998) ‹http://pdq2.usia.gov/scripts/cqcgi.exe/@pdqtest1.env›. Justice Anthony Kennedy was also present for the meeting with the members of the ECJ.

21 Press Briefing in Brussels, supra note 20.

22 Id.

23 In its indication of provisional measures, the Court itself noted the existence of a “dispute as to whether the relief sought by Paraguay is a remedy available under the Vienna Convention.” It further recited the view of the United States that for it to order the remedy sought by Paraguay would put it “in a position of acting as a universal court of criminal appeal,” and then concluded its recitations with the firm assertion that “the function of this Court is to resolve international legal disputes between States, inter alia when they arise out of the interpretation or application of international conventions, and not to act as a court of criminal appeal.” Case concerning the Vienna Convention on Consular Relations (Para. v. U.S.), Provisional Measures, paras. 31, 30, 38 (Order of Apr. 9, 1998) ‹http://www.icj-cij.org.›