Karen Alter Judicial Law Making in the European Court, UNIA EUROPEJSKA Evropská unie Az Európai Unió ...
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NORTHWESTERN UNIVERSITY SCHOOL OF LAW
Public Law and Legal Theory Series • No. 09–16
DUKE LAW SCHOOL
Public Law and Legal Theory Paper No. 258
VANDERBILT LAW SCHOOL
Public Law and Legal Theory Research Paper
Natur e or Nur tur e?
Judicial Law Making in the European Court
of J ustice and the Andean Tr ibunal of J ustice
Kar en J . Alter
Nor thwester n Univer sity School of Law
Laur ence R. Helfer
Duke Univer sity School of Law
This paper can be downloaded without charge from the Social Science Research
N
ATURE
OR
N
URTURE
?
J
UDICIAL
L
AWMAKING IN THE
J
USTICE AND THE
A
NDEAN
T
RIBUNAL O
E
UROPEAN
C
OURT OF
F
J
USTICE
*
Karen J. Alter
Laurence R. Helfer
Northwestern University
Duke University School of Law
panding the reach
sive conditions
forward and
expansive? We
(ECJ) and the
most active IC. We
when they are
pliance constituencies. These
intermediaries include national judges, administrative agency officials, and private actors who
have a personal, professional o
r ideological stak
study investigates lawmaking across all ATJ preliminary rulings through
the political effects of cloning the ECJ in region outside of Europe.
e in promoting respect for international rules.
2007 and analyzes
I
NTRODUCTION
tively finding and
t more heat than
on states delegate
ts are incomplete and
that legal commitments will need to be filled in by judges.
1
In addition, studies of international
cou
rt (IC) decision-making find that ICs are more restrained in practice than m
international judicial activism fear.
Yet this concern is not entirely unfounde
interpret international rules in ways that constrain national sovereignty. For governm
commentators concerned about such expansive judicial lawmaking, the Eu
Justice (ECJ) represents the problem in the extreme.
any critics of
d: some ICs do
ents and
ropean Court of
nstitution for
this remarkable result by expanding the
nd enabling litigants to use the European legal system to promote
*
We are grateful for financial support from the Center for the Americas as Vanderbilt and the Northwestern
Dispute Resolution Research Center, which funded research assistance and field research in Quito, Lima, and
Bogota. For helpful comments on previous drafts, we thank David Boyd, Darren Hawkins, Tom Ginsburg, Cesare
Romano, Osvaldo Saldias, and Alexander Krasteve Panayotov. Thanks also to Gilda Anahi Gutierrez, Elena
Herrero-Beaumont, and Maria Florencia Guerzovich who provided superb research assistance.
1
Bradley and Kelley, 2008, Hawkins, Lake, Nielson and Tierney, 2006
2
Cogan, 2008, Danner, 2006, Ginsburg, 2005, Steinberg, 2004, Helfer, 2006
3
Stein, 1981, Hartley, 1996, Weiler, 1991
Page 1 of 30
Abstract: Are international courts (ICs) by nature expansionist lawmakers, ex
and scope of their authority at the expense of state sovereignty when permis
allow? Or are they naturally conservative, applying international law in straight
circumscribed ways unless environmental factors encourage them to be more
investigate expansionist lawmaking patterns in the European Court of Justice
Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional twin and the third
argue that international judges are more likely to become expansive lawmakers
supported by influential sub-state interlocutors and com
Our
One often hears concerns that international judges may run amok, ac
expanding international law not based in explicit state consent. There is a lo
reality to these concerns. In practice, all judges make law. Indeed, a key reas
authority to international courts is because governments know that contrac
Decades of ECJ rulings transformed the Treaty of Rome into a de facto co
the European Community (EC).
3
The ECJ achieved
reach and scope of EC law a
key substantive and political objectives associated with regional integration.
P
effective international adjudication see the ECJ as an exemplar for other IC
contrast, criticize the ECJ as riding roughshod ov
roponents of
s.
5
Sovereigntists, by
er state consent and suggest that the ECJ’s
exp
erience is a reason to avoid creating independent ICs.
This article reinvestigates the lessons of the ECJ to explore how politic
international judicial lawmaking. It does so by comparing the ECJ wit
cousin—the Andean Tribunal of Justice (ATJ). In 1969, five countries in the A
South America imported from Europe the idea of building a common market t
supranational institutions—minus an IC. Andean governments later concluded that the absence
court undermined the uniform interpretation of and compliance with And
they established the ATJ, explicitly modeling its design on its European prede
al context shapes
h its largely unknown
ndean region of
hrough
of a
ean law.
7
In 1984
cessor.
Today, the ATJ is the third most active IC, having issued more than 1
has fewer rulings than the European Court of Human Rights and
th is Court of First Instance), but far more than the World Trade Organizati
settlement system, the International Court of Justice, or Latin America’s other ICs—
American Court of Human Rights and the Central American Court of Justice
400 decisions. It
the European Court of Justice
(wi
on’s dispute
the Inter-
.
8
The ATJ is active, but it is not activist. In the vast majority of cases,
the ATJ to repeat verbatim doctrines developed in earlier rulings. When pro
opportunities to make broader interpretations, the ATJ is surprisingly reluctan
reach of Andean rules or its own authority.
national judges ask
vided with
t to expand the
bate in child
nternational
y assume that judges are
herever possible.
9
It is only a fear of
being sanctioned that inhibits the natural tendency of judges to expand the reach and scope of
their authority.
10
By contrast, nurture-based explanations assume that judges are conservative by
nature. Judges typically apply the law to the case in fairly straightforward and circumscribed
of the law and of judicial
discretion—is unusual. Special nurturing and
nt is needed for judges to become expansionist lawmakers.
ways. Expansionist lawmaking—that is, broadening the reach or scope
authority at the cost of national political
encourageme
4
Burley and Mattli, 1993, Stone Sweet, 2004, Alter, 2009.
5
Helfer and Slaughter, 1997.
6
Posner and Yoo, 2005, Rasmussen, 1986, Denning, 1990.
7
Vargas-Hidalgo, 1979: 224, García Amador, 1978.
8
Alter, 2008: 57-60.
9
Barnett and Finnemore, 2004: 27.
10
Stone Sweet, 1999, Stone Sweet, 2004, Burley and Mattli, 1993, Alter, 2001: 45-52, Weiler, 1991..
Page 2 of 30
The ECJ/ATJ’s comparison reminds one of the nature versus nurture de
rearing. Is it the genes or the environment that shapes how an actor develops? I
relations and international law scholars tend to side with “nature.” The
“hardwired” to use their discretion to increase their power w
paring the first 25
ations that created
lower trade
experience. We
show that the ATJ has generally refrained from the sort of expansionist lawmaking designed to
promote integration through law that is the hallmark of its European cousin.
Our analysis has three wider implications beyond this regional comp
theories of IC lawmaking assume that ICs are by nature expansionist, and tha
features of ICs facilitate or hinder this innate tendency to engage in judicial lawm
analysis of two identically designed ICs suggests that too much emphasi
these formal institutional rules. Second, in contrast to the predominant fo
relations theories on government preferences, we argue that ICs are more like
expansionist where domestic interlocutors—such as national judiciaries, jur
networks, administrative agencies within th
ansions. A third broad policy implication of our analysis is that politically
can complete international contracts without engaging in expansive judicial l
compromises state sovereignty.
arison. First, most
t specific design
aking. Our
s has been placed on
cus of international
ly to be
ist advocacy
e state, or the public generally—support such
exp
independent ICs
awmaking that
Section I defines expansionist judicial lawmaking and situates our
scholarship on ICs. The section shows that the ECJ and ATJ are identically d
institutions, creating a natural experiment to test “nature” versus “nurture” th
decision making. Section II documents the key trends in ATJ lawmaking. Ande
mimicked several ECJ doctrines, including direct effect and supremacy. But ou
intellectual property disputes—an area in which, as we explain below, the ATJ
support of national administrative actors—Andean judges have declined to follow the ECJ by
analysis in existing
esigned
eories of judicial
an judges have
tside of
enjoys the
expansively interpreting Andean law. Section III compares the ways in which environmental
factors have influenced ATJ and ECJ decision making. Section IV analyzes the implications of
this comparison for understanding how political context shapes IC lawmaking. Inasmuch as our
data on the ATJ is new and largely unknown, an appendix explains our methodological choices
and provides a guide for scholars who wish to investigate the ATJ further.
11
The European Community grew from six members in 1958 (France, Germany, Italy, Luxembourg, the
Netherlands and Belgium) to nine in 1973 (when the United Kingdom, Ireland and Denmark joined) to 10 members
in 1981 (when Greece joined). Spain and Portugal joined the EEC in 1985. For most of the ATJ period we study the
Andean Community had five members. The original Andean Pact included Bolivia, Chile, Colombia, Ecuador, and
Peru. Chile withdrew in 1976. Venezuela joined in 1973 and withdrew in 2006.
Page 3 of 30
We investigate the relative influences of nature versus nurture by com
years of ATJ and ECJ decision making, periods when the regional organiz
both courts had smaller memberships,
nascent supranational institutions, and
volumes. Because the European story is well known, we focus on the Andean
I.
T
HEORIES OF
E
XPAN
SIONIST
J
UD
ICIAL
L
AWMAKING BY
I
NTERNATIONAL
C
OURTS
All courts are presented with cases in which the law is indeterminate; t
clarify vague clauses and fill in lacunae, making law as they resolve specific
contrast to gap filling, expansionist lawmaking significantly widens the do
authority at the expense of national discretion. We define expansionist judi
interpretations that expand the substantive reach and scope of the law and/or ag
court’s power. We do not to include in our d
ernments. ICs can expand the law without ruling against governments;
rule against governments without expanding the law.
hus all courts
disputes.
12
But in
main of the court’s
cial lawmaking as
grandizes a
efinition a requirement that judges rule against
gov
conversely, they can
that ICs are by
ges want to expand
judges to
expand the law. One group of scholars examines how access rules shape the opportunity to
litig
ate, and thus the demand for expansionist rulings. Scholars expect co
ants can initiate disputes
to be busier and therefore more likely to e
pe of international law compared to courts that hear only interstate disp
urts where private
litig
xpand the reach and
sco
utes because
a steady flow of cases… allows a court to become an actor on the legal and poli
its profile in the elementa
deeper sense that interpretation and application of a particular legal rule must be re
a part of what the law means in practice. Litigants who are likely to benefit from interp
will have an incentive to bring additional cases to clarify and enforce it. Further, the in
or application is itself likely to raise additional questions that can only be answered
subsequent cases. Finally, a court gains political capital from a growing caselo
performing a needed function.…
heory, which
ed on ICs assume that
judges are expansionist by nature; thus, judicial independence translates into judicial
empowerment at the expense of governments. Scholars have asserted that ICs will be less
expansionist where states can easily change legal rules and where judicial terms are short or
ppointment.
15
Tom Ginsburg adds that judicial lawmaking increases with the
eaty or overruling judges
the regime.
16
Eric Posner and John Yoo claim that
subject to rea
number of parties to an agreement and the difficulty of amending the tr
and decreases with the ease of exit from
12
Shapiro, 1981: 29.
13
Keohane, Moravcsik and Slaughter, 2000, Helfer and Slaughter, 1997, Hawkins and Jacoby, 2008.
14
Keohane, Moravcsik, and Slaughter 2000: 482.
15
Tsebelis and Garrett, 2001, Vaubel, 2006, Stephan, 2002.
16
Ginsburg 2005.
Page 4 of 30
International law and international relations theories usually assume
nature expansionist lawmakers. Building from the implicit premise that jud
their own authority, theorists focus on factors that facilitate or hinder the ability of
tical stage, raising
ry sense that other litigants become aware of its existence and in the
ckoned with as
retation
terpretation
through
ad by demonstrably
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