Trustee Courts and the Judicialization of International Regimes: The Politics of Majoritarian Activism in the European Convention on Human Rights, the European Union, and the World Trade Organization

Journal of Law and Courts, Vol. 1, No. 1, pp. 61-88, 2013

29 Pages Posted: 17 Mar 2012 Last revised: 18 Mar 2013

See all articles by Alec Stone Sweet

Alec Stone Sweet

National University of Singapore (NUS) - Faculty of Law

Thomas L. Brunell

University of Texas at Dallas - Department of Political Science

Date Written: January 1, 2012

Abstract

The paper focuses on judicial politics in three international organizations: the European Union, the European Convention on Human Rights, and the World Trade Organization. The courts of these regimes are trustee courts, operating in an environment of judicial supremacy with respect to states. An international trustee court meets three criteria: (1) the court is the authoritative interpreter of the regime’s law; (2) the court’s jurisdiction, with regard to state compliance with treaty law, is compulsory; and (3) it is virtually impossible, in practice, for contracting states to reverse the court’s important rulings. After developing a theory of trusteeship, we turn to how judges have used their position of supremacy. The case studies focus on the adjudication of what have been the courts’ most politically-sensitive set of disputes, cases involving state claims to exemptions from treaty obligations for measures that are “necessary” to achieve a specified public interest. Although there is variation, we find that each court has engaged in a strategy of “majoritarian activism,” producing law that reflects standard practices or a high degree of state consensus but which would not be adopted by member states under unanimity decision-rules. Majoritarian activism helps judges develop the law in a progressive manner, to mitigate potential legitimacy problems, and to render efforts at curbing the growth of their authority improbable or ineffective.

Keywords: trusteeship, international courts, ECJ, ECHR, WTO, compliance, majoritarian activism

Suggested Citation

Stone Sweet, Alec and Brunell, Thomas L., Trustee Courts and the Judicialization of International Regimes: The Politics of Majoritarian Activism in the European Convention on Human Rights, the European Union, and the World Trade Organization (January 1, 2012). Journal of Law and Courts, Vol. 1, No. 1, pp. 61-88, 2013. Available at SSRN: https://ssrn.com/abstract=2024889 or http://dx.doi.org/10.2139/ssrn.2024889

Alec Stone Sweet (Contact Author)

National University of Singapore (NUS) - Faculty of Law ( email )

469G Bukit Timah Road
Eu Tong Sen Building
Singapore, 259776
Singapore

Thomas L. Brunell

University of Texas at Dallas - Department of Political Science ( email )

Richardson, TX 75083
United States
972-883-4963 (Phone)

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