Mayor Daley and other Mayors: Seek “redress against the gun industry” in the World Court

April 27 was the tenth annual “Richard J. Daley Global Cities Forum,” held in Chicago. Over a hundred mayors and other local government leaders assembled to discuss global issues. As reported in the Chicago Sun-Times, “Daley convinced more than a dozen of his counterparts from around the world to approve a resolution urging ‘redress against the gun industry through the courts of the world’ in The Hague.”

At a news conference, Daley explained, “This is coming from international mayors. They’re saying, ‘We’re tired of your guns, America. … We don’t want those anymore because guns kill and injure people.'”

Among the supporters of the Daley resolution was Mexico City Mayor Marcelo Ebrard Casauban, who said that “85 percent” of Mexican drug cartel guns come from the United States. Philadelphia Mayor Michael Nutter also endorsed a World Court case, because “I love the 2nd Amendment,” but “I have a 1st Amendment right not to be shot.”

In 1998, Chicago Mayor Daley and New Orleans Mayor Marc Morial filed the vanguard of what would become three dozen municipal lawsuits against the firearms industry. The lawsuits were not successful in court, but they did come very close to convincing firearms manufacturers to capitulate. The suits were finally ended by the Protection of Lawful Commerce in Arms Act, signed into law in 2005.

So what are the rules in the International Court of Justice (which is informally called “the World Court”)? Chapters 36 and 37 of the ICJ statute define the Court’s jurisdiction.

The classic World Court case is a nation vs. nation dispute in which both parties have submitted to the Court’s jurisdiction. For example, Jamaica and the Bahamas ask the World Court to settle their disagreement about who owns some tiny islands in the Caribbean. A World Court ruling in such a case is binding.

In these state v. state cases, no other party participates, but the World Court can receive information from NGOs, government agencies, and so on.

Thus, the plaintiff in a ICJ might be the state of Mexico itself. In a state v. state case, a state can assert the interests of its nationals. For example, Mexico might assert the interest of Mexicans who are allegedly harmed by firearms manufacturers which are permitted to operate in the United States or in other nations.

There are four modes of state consent to ICJ jurisdiction:

First, the parties themselves can ask the ICJ to hear the case.

Second, the Court has jurisdiction over “matters specifically provided for … in treaties and conventions in force.” That is, a treaty may declare that it gives the ICJ the authority to resolve disputes arising under the treaty.

Third, a state may make a general declaration that it will accept ICJ jurisdiction.  When the case of Nicaragua v. United States was brought during the Reagan administration, the United States withdrew from ICJ jurisdiction. The decision was made by Executive authority, and could be changed by Executive authority.

Finally, jurisdiction can be based on tacit consent (forum prorogatum).

Besides issuing legally binding opinions in state v. state cases, the ICJ can also issue advisory opinions. Certain United Nations agencies and bodies have the authority to ask the ICJ for an advisory opinion. For example, the United Nations General Assembly asked the ICJ for an advisory opinion about Israel’s defensive wall. The ICJ condemned Israel’s anti-terrorist barrier as a violation of international law.

An ICJ advisory opinion is not, in itself, legally binding. However, other courts may accept the ICJ opinion as a definitive statement of international law. So the courts which do have power to compel the state (e.g., a nation’s own Supreme Court; or the European Court of Justice) could take the ICJ opinion, and then issue their own order requiring the national government to comply with international law as persuasively declared by the ICJ.

The ICJ has already shown itself to be willing to get involved in weapons control. In the 1996 case Legality of the Threat or Use of Nuclear Weapons, the ICJ was asked by the UN General Assembly for an advisory opinion on the legality of the use of nuclear weapons. The Court ruled 11-3 that nuclear weapons per se are not prohibited by any international law, but held  that most uses of nuclear weapons would be prohibited by general laws of warfare (e.g., the prohibition on targeting civilians).  Further the Court held that there was a legal obligation for complete nuclear disarmament: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

A court which feels competent to mandate complete nuclear disarmament may not feel reluctant about granting the relief sought by Mayor Daley’s international allies.

Of course whether Mexico (or some other nation, such as Brazil, whose President Lula is an ardent advocate of gun prohibition) would bring an ICJ case is at present unknown. Likewise unknown is whether the US would consent to suit, or whether the ICJ would infer some kind of tacit consent. It is also unknown whether Mayor Daley and his allies could accomplish some of their objectives by suing other nations (perhaps with the consent of the nominal “defendants”) which have domestic firearms industries which export to the United States civilian market, and which have explicitly consented to ICJ jurisdiction.

A 2003 article by Joseph Bruce Alonso in the Journal on Firearms & Public Policy explores the legal interplay between international and domestic law in legal cases involving gun control. The short answer is that the Second Amendment might provide some protection in US courts, but would offer little protection from international court actions taken against US nationals–such as the seizure of foreign assets owned by US corporations.

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