Constitutional problems with international courts

The Volokh Conspiracy ^ | October 1, 2014 | Eugene Kontorovich

[right-wing agnostic]

The Cornell Law Review has just published my new article, “Three International Courts and Their Constitutional Problems.” The article considers the constitutionality of joining the International Criminal Court in light of largley forgotten debates over two prior international tribunals: the Mixed Commissions for the slave trade in the early 19th century, and the International Prize Court in the early 20th Century. The U.S. ultimately signed onto both projects, but only after changing their scope or jurisdiction to comport with constitutional concerns.

The paper lies at the intersection of international law, constitutional law, and foreign relations. But really its a federal courts paper: the fundamental question is when can the government delegate jurisdiction over core judicial business to non-Article III courts – or even non-U.S. courts.

Here is the abstract from SSRN:

The United States’ potential participation in the International Criminal Court (ICC) raises serious constitutional questions that have never been subject to judicial examination. However, in two distinct historical episodes, separated by nearly 100 years, the U.S. considered proposals to join such international courts and found them wanting.