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Abstract:
This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes the role of judges in politics.

International Courts, International Tribunals, European Court of Justice European Union, European Community, Regional Trade, Regional Integration, International Relations, Administrative State, Judicial Politics, Preliminary References

Abstract:
In international relations applications, theorists employing Principal-Agent (P-A) theory have posited that the fact of delegation defines a relationship between states (collective Principals) and international organizations (Agents) where recontracting threats are the predominate way states influence IOs. Developing a category of delegation to international Trustees, I argue that recontracting tools will be both harder to use and less effective at influencing the Trustees. Trustees are 1) selected because of their personal reputation or professional norms, 2) given independent authority to make decisions according to their best judgement or professional criteria, and 3) empowered to act on behalf of a beneficiary. These three factors account for the different politics between Principals and Trustees, a politics aimed at either keeping issues outside of the domain of the Trustee or at rhetorically engaging the Trustee's authority in an effort to persuade the common "beneficiary" whose loyalty and respect both States and the Trustee seek. In explaining why recontracting threats are not central to Principal-Trustee relations, the analysis provides a theoretical basis to question the "rational expectations" claim that ICs are tailoring their decisions to reflect the wishes of powerful states and avoid adverse recontracting.

International Courts, Judicial Independence, Principal-Agent Theory

Abstract:
The increasing density of international regimes has contributed to the proliferation of overlap across agreements, conflicts among international obligations, and confusion regarding what international and bilateral obligations cover an issue. This symposium examines the consequences of the complex of overlapping, parallel and nested agreements for subsequent politics, thus the issue of overlap and complexity as an independent variable. Our central questions are: What insights can be gained by thinking about any single agreement as part of a larger complex of international rules and agreements? Does the existence of simultaneous and overlapping agreements alter either the strategies of players or the politics of the issue itself? Karen Alter and Sophie Meunier's introductory essay identifies the mechanisms through which nesting and overlap across agreements can influence politics, and identifies six modes through which overlap as an independent variable can manifest itself. Short contributions identify how the complex of international agreements affects politics in specific issue areas: refugee politics (by Alexander Betts), trade politics (by Christina Davis), human rights and trade (by Emilie Hafner-Burton), intellectual property politics (by Laurence Helfer), security politics (by Stephanie Hofmann), and election monitoring (by Judith Kelley). Daniel Drezner concludes by arguing that the complexity of rules may well benefit the powerful more than others.

Complexity, International Organization, International Cooperation, International law, Nested Regimes

Abstract:
The decade long trans-Atlantic banana dispute was not a traditional trade conflict stemming from antagonistic producers' interests. Instead, this article argues that the banana dispute is one of the most complex illustrations of the legal and political difficulties created by the nesting and overlapping of international institutions and commitments. The contested Europe-wide banana policy was an artifact of nesting - the fruit of efforts to reconcile the single market with Lome obligations which then ran afoul of WTO rules. Using counter-factual analysis, this article explores how the nesting of international commitments contributed to creating the dispute, provided forum shopping opportunities which themselves complicated the options of decision-makers, and hindered resolution of what would otherwise be a pretty straightforward trade dispute.

We then draw out implications from this case for the EU, an institution increasingly nested within multilateral mechanisms, and for the issue of the nesting of international institutions in general.

Abstract:
One of the main hopes of proponents of international courts is that international courts will in some way encourage greater respect for international law. In truth, we know surprisingly little about the relationship between international courts and compliance with international law. The academic literature yields few direct hypotheses, because it has focused on broader questions of why states follow international law, or contextual factors shaping state compliance with international obligations. Indeed a read of this literature could well lead to the conclusion that courts will contribute very little to enhancing state respect for international law. On the other side of the debate is a literature that asserts that courts will enhance the likelihood that states comply with international law, with little development of when, how, or why courts will enhance compliance with international law. This paper reviews a broad variety of American literature on international law and state behavior, pulling from this literature insights about the potential relationship between international courts and compliance with international law. The goal is to both make American literature more accessible to international audiences, and to move beyond broad claims about whether or not enforcement works as an approach to facilitate compliance. Parts I and II summarize the academic debates regarding enforcement versus management approaches to increasing compliance with international law, and why states turn to international courts. The analysis aims to pull out how international courts in particular may be contributing to compliance with international law. Part III takes from the preceding analysis insights that might explain variation in where international courts do or do not facilitate compliance with international law. I generate a list of fourteen propositions, not all of which are compatible with each other. This list offers a beginning way to think about explaining variation in the influence of international courts on state behavior, and to think how specific examples may or may not generalize to larger claims about the relationship between international courts and compliance with international law. Enhancing compliance is not the only influence international courts may have in international politics. Part IV considers unintended consequences of using international courts to enhance compliance, and urges us to think more holistically about how international courts may be influencing international relations.

International Law, International Courts, Compliance

Abstract:
The European Coal and Steel Community (ECSC) was the first step in the process of European integration. Its founders had lofty aspirations that integration in coal and steel would spill into a larger endeavor, and early scholarly analyses suggested that coal and steel integration was spurring more fundamental political change. Looking over the fifty-year history of the ECSC, we find that the problem the ECSC was created to deal with never materialized, and that the tools of the ECSC were barely used until the 1980s. Intervention in the 1980s did not spur deeper political change, even though the conditions which Ernst Haas expected to contribute to deep political change finally existed. Since the ECSC did not in fact do what it was created to do (build a common market in coal and steel), and was not central in the development of the European Coal and Steel industry, the question then becomes how did the ECSC as an institution matter in the process of European integration?

Abstract:
This book chapter is a companion paper to the Trustee article. Where the Trustee article develops a theoretical justification for why recontracting politics will not be a central feature of state-IC relations, this chapter makes the empirical case that the tools that P-A theory expects to be a source of state influence over International Courts do not meaningfully shape IC decision-making. Locating the source of weak control tools in international politics, the paper argues that ICs are actually more institutionally independent than their domestic counterparts. The chapter explains this puzzle, and summarizes what international law scholars see as contributing to international court independence - features of the contract design which are fixed or one-shot, and thus do not give rise to recontracting politics.

International Courts, Principal-Agent Theory, Judicial Independence

Abstract:
The Andean Community - a forty-year-old regional integration pact of small developing countries in South America - is widely viewed as a failure. In this Article, we show that the Andean Community has in fact achieved remarkable success within one part of its legal system. The Andean Tribunal of Justice (ATJ) is the world's third most active international court, with over 1400 rulings issued to date. Over 90% of those rulings concern intellectual property (IP). The ATJ has helped to establish IP as a rule of law island in the Andean Community where national judges, administrative officials, and private parties actively participate in regional litigation and conform their behavior to Andean IP rules. In the vast seas surrounding this island, by contrast, Andean rules remain riddled with exceptions, under-enforced, and often circumvented by domestic actors. We explain how the ATJ helped to construct the IP rule of law island and why litigation has not spilled over to other issue areas regulated by the Andean Community.

Our analysis makes four broad contributions to international law and international relations scholarship. First, we adopt and apply a broad definition of an effective rule of law, using qualitative and quantitative analysis to explain how the Andean legal system contributes to changing national decision-making in favor of compliance with Andean rules. Our definition and our explanation of the ATJ's contributions to constructing an effective rule of law provide a model that can be replicated elsewhere.

Second, we explain how the Andean legal system has helped domestic IP administrative agencies in the region resist pressures for stronger IP protection from national executives, the United States, and American corporations. We emphasize the importance of these agencies rather than domestic judges as key constituencies that have facilitated the emergence of an effective rule of law for IP. As a result of the agencies' actions, Andean IP rules remain more closely tailored to the economic and social needs of developing counties than do the IP rules of the Community's regional neighbors.

Third, the reality that the ATJ is effective, but only within a single issue area, makes the Andean experience of broader theoretical interest. We offer an explanation for why Andean legal integration has not extended beyond IP. But our answer suggests avenues for additional research. We note that Andean IP rules are more specific than other areas of Andean law and that most administrative agencies in the region lack the autonomy needed to serve as compliance partners for ATJ rulings. We also find that, outside of IP, the ATJ is unwilling to issue the sort of purposive interpretations that encourages private parties to invoke Andean rules in litigation. The result is both a lack of demand for and supply of ATJ rulings.

Fourth, our study of the Andean legal system provides new evidence to assess three competing theories of effective international adjudication - theories that ascribe effectiveness to the design of international legal systems, to the ability of member states to sanction international judges, and to domestic legal and political factors. We also explore the possibility that rule of law islands may be emerging in other treaty-based systems subject to the jurisdiction of international tribunals.

Andean Community, Andean Tribunal, International Courts, International Tribunals, European Court of Justice, Intellectual Property, Trademarks, Patents, Pharmaceuticals, Regional Trade, Regional Integration, International Relations, Institutional Design, Administrative State, Administrative Agency

Abstract:
Most scholars think of courts as a single category of adjudicative bodies or triadic dispute adjudication. But courts play a variety of roles in the domestic political system. Increasingly, the roles and tasks delegated to International Courts (ICs) mimic in form and content the roles and tasks delegated to courts in liberal democracies. Thus where initially ICs were created to be dispute adjudication bodies, now they are also delegated the roles of administrative review, enforcement, and even constitutional review. This paper overviews the variety of judicial roles delegated to courts, explaining how each role primarily binds other actors, binds states, or both. Analyzing twenty founding treaties for international courts, the paper shows that delegation to ICs is extensive, and growing. It highlights how delegating a role to international courts is fundamentally different than delegating the exact same task to domestic courts, assessing the implications for national sovereignty of delegating specific roles to ICs.

International Courts, Enforcement, Delegation, Dispute Resolution, International Law, International Administrative Law

Abstract:
Scholars expect International Courts (ICs) with private access and compulsory jurisdiction to be more independent and effective. This article shows a trend of creating and using ICs with compulsory jurisdiction and private access, using as evidence the founding statutes and usage rates of twenty ICs created since 1945. Analyzing where and for what private actors are granted access to ICs, I find that what is driving the expansion of private access and compulsory jurisdiction is an attempt to extend the types of juridical checks one finds at the domestic level to the international governance level. While this trend will likely lead to more rights claiming by private actors, limitations on the types of cases private actors can raise combined with a lack of usage suggests that outside of Europe private right claiming potentials have yet to be exploited.

Abstract:
Are international courts power-seeking by nature, expanding the reach and scope of international rules and their own authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional clone and the third most active IC. We argue that international judges are more likely to become expansive lawmakers where they are supported by sub-state interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This comparison of two structurally identical international courts calls into question prevailing explanations of ECJ lawmaking, and it suggests that prevailing scholarship puts too much emphasis on self-interested power seeking of judges, the importance of regime design features, and the preferences of governments in explaining IC lawmaking.

Andean Community, Andean Tribunal, International Courts, International Tribunals, European Court of Justice, European Community, Regional Trade, Regional Integration, International Relations, Administrative State, Administrative Agencies, Judicial Politics, Preliminary References

Abstract:
In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system.

We find that the relationship between the ATJ and national judges differs significantly from the relationship between the ECJ and its domestic judicial colleagues. As in Europe, references from national judges account for the vast majority of cases on the ATJ's docket. But unlike in Europe, national courts are mostly passive intermediaries. Our coding reveals that national judges do not pose provocative questions to the ATJ, and that there is significant cross-national variation in referral patterns. Interviews corroborate what the data suggests: national judges have a circumscribed understanding of what Andean law requires of them. More than 90% of references involve technical issues of Andean intellectual property (IP) law and the registration decisions of domestic IP administrative agencies. National judges have embraced the ATJ's active role in IP disputes because of the support of these agencies, which seek the Tribunal's guidance to interpret vague areas of Andean law. Outside the area of IP, national judges are far more reluctant, contributing to the limited penetration of Andean law into national legal orders. We conclude by comparing the role of national judges in Europe to their role in the Andean context, extracting broader insights about the role of national judges in building international rules of law.

Andean Community, Andean Tribunal, International Courts, International Tribunals, European Court of Justice, European Union, European Community, Intellectual Property, Regional Trade, Regional Integration, International Relations, Administrative State, Administrative Agencies, Judicial Politics

Abstract:
Neo-functionalist accounts European legal integration stress how individuals (lawyers, judges, litigants, legal scholars) pursuing their narrow self-interest through supranational means drove the establishment and penetration of the ECJ's doctrines into national legal orders. Neo-functionalist theory suggests that merely transplanting the ECJ's structure into other contexts will allow self-interest to fuel legal integration. By contrast, this article shows how the ECJ's early success was aided by the coordination and encouragement of ideologically driven jurist advocacy movements. After documenting the role of jurist advocacy movements in the constitutionalization of the European legal order, the paper then examines how the absence of a jurist's advocacy movement hinders legal integration. The Andean Community Tribunal of Justice (ATJ), created in 1984, was modeled on the ECJ - it can hear legal challenges raised by private actors, and it has incorporated the ECJ's doctrines of Direct Effect and the Supremacy of Andean law. But it lacks a jurist advocacy movement, which has arguably hindered its ability to follow the ECJ's path of doctrinal development that advances legal integration - notwithstanding the reality that the ATJ is the 3rd most active international court, having issued over 1400 rulings to date.

Abstract:
In 1995 the dispute resolution system of the WTO was transformed to make it more effective in enforcing WTO rules. Ironically, the improvements in the dispute resolution system have contributed directly to greater conflict in the WTO. How can improving a system to resolve disputes actually exacerbate conflict? Alter identifies a number of conflict enhancing consequences of the change in the dispute resolution mechanism. Conflict is not per se bad. Indeed if the outcome of this conflict is that governments must better justify participation in the WTO, then conflict is good. But there is a danger that international courts are more likely than most courts to generate conflict, while the international legal and political system is less adept at weathering controversy and addressing valid public concerns. Left unaddressed, conflicts generated by international legal bodies can erode support for the international legal system and multilateral strategies in general. Alter puts forth solutions designed to build into internationally legalised processes political safety valves, greater political sensitivity, and improved accountability, as well as legitimacy enhancing devices. Demonstrated here in the case of the WTO, Alter's analysis applies to international legal systems generally.

International Law, International Courts, International Dispute Resolution, WTO