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Domestic Courts’ Reading of International Norms: A Semiotic Analysis

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Abstract

This article focuses on a number of cases in international law in which US domestic courts have produced judgments that conflict with those given by the International Court of Justice. The nature of these courts’ judgments has been extremely closely tied to the interpretation given by the US national Executive to a certain international norm. This situation raises a number of questions, which can be broadly categorized into two spheres: the legal (regarding the overall legality of the courts’ decisions) and the semiotic (regarding the manner in which a ‘meaning’ for the norm has been claimed by the courts). In this article we aim to provide answers to a number of these questions, both from the standpoint of international law and from that of a reader-response model of semiosis. We also analyse the level of interdependency that exists between the two spheres.

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Notes

  1. This article focuses on public international law. All references to international law should be understood as referring to rules of public international law excluding European and private international law.

  2. The ICJ rendered its reading of article 36 after the three countries concerned—Germany, Paraguay and Mexico—turned to the Court for a ruling as to whether the United States had violated its duty to foreign nationals under the VCCR ([32]; [29]; [21]).

  3. When a treaty is self-executing, it is applicable automatically and does not require implementing legislation. Merely by becoming a party a State is required to abide by the treaty and to put all of its obligations in action. This includes also the application of the agreement before a domestic court.

  4. The opinion is given either as a statement of interest, as the position of the respondent, or as an answer to a question posed by the court (see [39, p. 61], quoting State Department answer to question posed by the First Circuit).

  5. The same issues arose in France (see [20]) and in the UK and Israel (see [17, p. 328]).

  6. US courts defer to the Executive for numerous reasons, commonly pertaining to the substantial role played by the Executive in matters of foreign affairs and the expertise and experience the Executive has in this area. The deference thus reflects a sentiment of incapacity or unsuitability on the part of the judges to review the Executive’s actions in foreign affairs, and is thus symptomatic of courts’ perception of their own function vis-à-vis the Executive (see [3, 13]).

  7. This was recognised also by the ICJ, when it noted that the Supreme Court had declined to use its authority to grant a stay of execution [29, paras 113–114].

  8. The courts would also have had to apply the appropriate remedies; the ICJ noted that the domestic courts did not address the violation appropriately.

  9. It should be noted that we do not take issue with every judicial reference to another institution (see in particular [25]), but only with automatic and repetitive adoption of another institution's interpretation.

  10. Congress participates in the ratification of treaties in the advice and consent process as stipulated by article II section 2 of the US Constitution [46].

  11. It is worth clarifying that in this quotation, the reference to ‘writing’ is not in the usual sense, but is rather intended to refer to the concept that in bringing a set of interpretive strategies to bear on a semiotic work, a reader creates—that is, ‘writes’—a new text, which is understood to be a reader-dependent mental form of the original work.

  12. The authors here underline the importance of distinguishing between the political term ‘conflict’ and the legal term ‘dispute’, thus between the political and legal aspects of a situation.

  13. After the Avena decision [21], President Bush determined, through a Memorandum to the Attorney General that the United States would “discharge its international obligations” under Avena “by having State courts give effect to the decision” [48].

  14. The Restatement states: “Courts in the United States have final authority to interpret an international agreement for purposes of applying it as law in the United States […]”.

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List of Cases

  1. Arrêt GISTI, Conseil d’Etat 29 June 1990, Recueil des arrêts du Conseil d’Etat 171.

  2. (Avena) Mexico v. United States, Merits, ICJ Reports 2004.

  3. Beaumartin v. France, judgment of 24 November 1994, Series A no. 296-B.

  4. Breard v. Greene, 523 U.S. 371 (1998).

  5. Chan v. Korean Airlines, 490 U.S. 122 (1986).

  6. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984).

  7. Gordon v. State, 863 So. 2d 1215 (Fla. 2003).

  8. Kolovrat v. Oregon, 366 U.S. 187 (1961).

  9. Federal Republic of Germany and LaGrand v. United States, 526 U.S. 111 (1999).

  10. Federal Republic of Germany v. United States, Merits, ICJ Reports 2001.

  11. Medellin v. Texas, 552 U.S. (2008).

  12. Moyhernandez v. United States, Not Reported in F.Supp.2d, 2005 WL 351115 S.D.N.Y., 2005.

  13. Paraguay v. United States, Order, ICJ Reports 1998, 248.

  14. Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176 (1982).

  15. United States v. Ademaj, 170 F.3d 58 (1st Cir. 1999).

  16. United States v. Banaban, 85 Fed. Appx. 395 (5th Cir. 2004).

  17. United States v. De la Pava, 268 F.3d 157 (2nd Cir. 2001).

  18. United States v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001).

  19. United States v. Jimenez-Nava, 243 F.3d 192 (5th Cir. 2001).

  20. United States v. Li, 206 F.3d 56 (1st Cir. 2000).

  21. United States v. Lombera-Camorlinga, 206 F.3d 882 (9th Cir. 2000).

  22. United States v. Page, 232 F.3d 536 (6th Cir. 2000).

List of Conventions, Statutes and Constitutions

  1. European Convention on Human Rights, 213 U.N.T.S. 222 (1950).

  2. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1967).

  3. Statute of the International Court of Justice, 302 U.N.T.S. 251 (1958).

  4. The Constitution of the United States of America.

  5. Vienna Convention on Consular Relations, 596 U.N.T.S. 261 (1963).

  6. Vienna Convention on Law of Treaties, 1155 U.N.T.S. 331 (1969).

Memoranda/Legislative History

  1. Memorandum to the Attorney General. Application to Petition for Certiorari. 187a. (28 February 2005).

  2. Restatement of the Law Third, Foreign Relations Law of the United States (Vols. 1–2) (1990).

  3. Vienna Convention on Consular Relations, Executive Report 91-9: United States Senate Committee on Foreign Relations, Ninety-First Congress, first session. Committee hearing (5 October 1969).

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Authors and Affiliations

  1. Lincoln College, University of Oxford, Oxford, UK

    Veronika Fikfak & Benedict Burnett

Authors
  1. Veronika Fikfak
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  2. Benedict Burnett
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Correspondence to Veronika Fikfak or Benedict Burnett.

Additional information

Many thanks are due to the Veronika Fikfak’s father, Professor Jurij Fikfak, who introduced me to the area of Semiotics and provided me with invaluable guidance in the writing of this article.

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Fikfak, V., Burnett, B. Domestic Courts’ Reading of International Norms: A Semiotic Analysis. Int J Semiot Law 22, 437–450 (2009). https://doi.org/10.1007/s11196-009-9125-5

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