International Judicial Monitor
Published by the American Society of International Law and the International Judicial Academy
Jul/Aug 2007, Volume 2, Issue 2

ASIL Sidebar

State Courts and Judges in the US as Transnational Legal Actors

State courts and judges are sometimes considered as an afterthought by those debating the application of international law and the use of foreign legal materials in judicial decision making. Much of this debate, both pro and con, and the focus of those in the United States interested in judicial dialogue and cooperation between American courts and those in foreign jurisdictions, tends to be on the federal appellate judiciary and the United States Supreme Court.

However, applying international law and settling cases and claims arising under international law is not something solely for federal courts. State courts and judges have been dealing with cases involving foreign parties and resolving international disputes for over two hundred years. Issues of foreign sovereign immunity and forum non conveniens, for example, are not necessarily anything new or exotic to some state courts and judges, particularly those on the US border with Mexico and Canada.     

Much like their federal counterparts, state judges are also called upon to interpret international treaties and customary international law in both civil and criminal matters. Cases involving the Hague Convention on child abduction or the Berne Convention on the protection of literary and artistic works are not uncommon at the state level. State courts have also found themselves dealing with decisions of international tribunals, such as International Court of Justice in cases involving the Vienna Convention on Consular Relations. How state courts ultimately decide these cases impacts the development of international law and its relationship to the US legal system. 

Moreover, judges from state courts have sat on internationalized criminal tribunals in places such as Timor, Cambodia, and Bosnia where they worked with international norms and domestic sources of law. Countless others actively participate in rule of law promotion and technical assistance projects and attend conferences where they network with judges from diverse legal traditions, many of whom freely borrow from international and foreign law and use it as a tool in domestic adjudication.   

These experiences can go a long way toward shaping how state judges in the United States understand basic sources of international law and apply them in their decision making. However, experiential forms of learning in this context are not necessarily an effective alternative to more formalized training in treaty interpretation, identifying customary international law, and mastering procedural issues related to international litigation such as the use of foreign law, discovery, extraterritoriality, parallel litigation, and the enforcement of foreign judgments and arbitral awards.  Like all transnational legal actors, state court judges stand to benefit from continuing education focusing on significant developments in substantive and procedural aspects of international law.

The American Society of International Law devotes considerable resources to providing international legal materials, professional development and education, and networking opportunities to judges around the world as part of our mission to facilitate the domestic application of international law. While much of ASIL’s work to date has admittedly been focused on the US federal judiciary, we have recognized the importance of increasing our engagement with judges from state and local courts throughout the United States.  

ASIL recently assisted the Superior Court of the District of Columbia in developing components of its 2007 Judicial Training Conference on “International Law: Learning by Serving Our Community both Here and Abroad.” Similar support has been provided to judicial associations in California and Indiana. ASIL has also distributed its publication, International Law: A Handbook for Judges, to judges and court personnel in all 50 states. In addition, we will support the participation of state judges in the International Judicial Academy’s 2007 Sir Richard May Seminar in The Hague. 

Other ASIL programs and activities for judges and the legal profession as a whole, in both the United States and abroad, include the following: 

  • Transnational judicial dialogues, featuring judges of the European Court of Justice and US Supreme Court Justice Stephen Breyer, that were co-sponsored with the European Institute and Judge Taghrid Hikmet of the International Criminal Court for Rwanda and Jordan’s first woman judge at the ASIL 2007 Annual Meeting.     
  • Panel presentations and discussions at ASIL on judicial reform in Afghanistan, Darfur and the Responsibility to Protect, and the International Tribunal for the Law of the Sea. 
  • Roundtable meeting Iraqi law professors, deans, and judges participating in the US Department of State International Visitor Leadership Program on “Institutionalizing Human Rights Study, Training and Advocacy in Iraqi Law Schools.”

Andrew Solomon, ASIL Director of Programs

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© 2007 – The American Society of International Law and International Judicial Academy.

Editors: James G. Apple, Veronica Onorevole and Andrew Solomon.
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