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
Date Written: January 1, 2012
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
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