Vol. 8 No. 8 (August 1998) pp. 318-321.

LAW ABOVE NATIONS: SUPRANATIONAL COURTS AND THE LEGALIZATION OF POLITICS by Mary L. Volcansek (Editor). Gainesville: University Press of Florida, 1997.
Cloth. $49.95. ISBN 0-8130-1537-5.

Reviewed by Barbara Hazlewood, Behavioral and Social Sciences Department, Sul Ross State University.

 
This is a scholarly treatment of a subject that is often implicit in studies of international law. Throughout there is concern with international decision-making as reflecting a process of building legitimacy in the evolution of supranational judicial standards. Special emphasis is placed on a type of politics inherent in the evolutionary character of supranational courts. (Tenuously characterizing the European Court of Justice [ECJ] as more closely approximating "supranational" than "international" status, the editor leans toward the term "transnational."). Generally, the work fills a gap growing out of a long-term tendency of the discipline to minimize the role of international courts and law in the face of their increased significance, particularly at the regional level. Focusing on the European courts as more closely approximating "supranational" status (because of the degree of underlying consensus), the work expands the comparative literature in this area in relating such topics as the evolution of the European Court of Justice to early struggles in legitimacy by the U.S. Supreme Court (l789-l860) and to the Inter-American Court of Justice. One chapter is devoted to the interactions with the British courts, while still another chapter concerns special issues and the role of the courts with respect to international terrorism. A group of authors with impressive backgrounds have produced finely honed chapters which elaborate on the major themes.

International adjudication can be associated with the more formal processes in the European system to policies established through negotiations and backed up by sanctions in connection with GATT. The "politics" of international adjudication in regional systems centers upon such matters as the type of case to consider, options in resolving disputes that would take into account fragile legitimacies growing out of the relative inexperience of governments in deferring to international judgments in the first place. Meeting functional needs transcending national boundaries, and balancing international standards with the politically feasible, the courts have developed roles making them integral parts of evolving international--particularly, regional--systems.

Interesting conclusions are drawn by individual contributors.

In comparing centrifugal influences during the early years of United States and European courts, Leslie Friedman Goldstein statistically supports her thesis that there has been comparatively insignificant resistance by European countries to decisions of European courts compared to that by states to early national decisions in this country. Evidence for this can be seen in the states' rights swings during the early judicial history of the United States. This was true in spite of the fact that the American constitution was far clearer in delineating the power of the new national government than were European treaties interpreted by the European courts. In fact, the judicial review function of the U.S. federal courts was not substantially accepted for over sixty-five years.

"What is not ordinary about the European Court of Justice is that its judges took a treaty and turned it into a judicially enforceable, higher law constitution that takes precedence within each member state even over subsequent national legislation or constitutional provisions to the contrary." (p. 26) European courts successfully recruited national courts in the enforcement processes. The explanation for the difference? Aside from cultural differences, according to Goldstein, the European system incorporated from the beginning a great many "states' rights," reforms advocated in the early years of the U.S. federal system. These included a high degree of consensus, if not a state-veto power, for initiating policies from the center.

Technically deferring to state sovereignty, European court decisions do not allow dissent and are unsigned, giving the "appearance" of unanimity. Also, as a result of limited (six-year) renewable, terms European judges are more likely to be in sync with establishment sentiments. In addition, there is the sense of "empowerment" by national judges who have, through the European connection, acquired the function of judicial review over actions by domestic political branches.

On the domestic side, there is sufficient evidence of adaptations of national law to warrant attention to the growing interlocking of national and international norms. In shaping national to European standards, British courts, with their limited review power, perhaps had the farthest to go.

by the ECJ in matters of community law, British courts have been incorporating community standards into national jurisprudence. The result is a growing involvement of the British courts in judicial policy-making in matters affected by the Community. (John C. Blakeman, "British Courts and the European Court of Justice," p. 34.)

Of some interest is the matter of court levels involved in the process. Although cases may be referred from any level to the ECJ, in practice, it is the lower courts (35% from the High Court of Justice, Queen's Bench division) rather than the higher courts (Court of Appeal, House of Lords) that have made most of the appeals," indicating that lower courts are much more significant in interpreting and integrating EC law into the British system." (p. 46) Also, twenty-four per cent of the appeals come from tribunals rather than the regular courts. In his conclusions concerning the impact of the European system on British courts, Blakeman discerns the evolution of a new,(presumably more vigorous), judicial review function.

Analyzing in some detail four Northern Ireland case studies, Donald Jackson concludes that the European court remedied a void by providing constraints on British procedure, which involved numerous violations of the Convention on Human Rights.

In the Chapter on Women's Concerns in the European commission and Court of Human Rights, Doris Marie Provine presents a less optimistic view, concluding that litigation under the European Convention on Human Rights "has done little to improve women's legal status in Europe." (p. 77). The European convention did address the issue of women's rights. One of the more extensive systems for the protection of human rights generally, the wording of the European Convention was not specifically tailored to problems faced by women. Differentials among countries with respect to women's rights are permitted by the balancing of general interests (e.g., the need for a greater population) against those of the individual. Provine faults the convention, arguing that it more often resolves gender equity issues in favor of males (p. 16), even though the literature indicates a general strengthening of the rights of British women in the general area of employment.

Evaluating Inter-American Human Rights protections in terms of legitimacy and effectiveness, John F. Stack, Jr., reviews the evolution of the Commission (established in 1959) and the Court (1980). In contrast to the European system, the evolution of a viable system in the Western Hemisphere seems more uneven and less certain. Historical repression, particularly in the last decade, coupled with cultural barriers and the Latin American special concern with issues of national sovereignty, have imposed more limitations on supranational jurisdiction. Countering the traditional patterns, however, recent trends in the areas of democratization, political development and international trade have provided some basis for transferring a growing legitimation of human rights protections domestically into greater respect for decisions by a supranational court. Stack traces the expansion of the role of the Commission. In 1965 the Commission was authorized to hear complaints from individual, and it conducted investigations which led to reports, particularly in states where large-scale rights violations were occurring. The work of the commission has contributed to the repeal of certain abusive laws, although this trend seems limited by the more powerful states Both the Court and the Commission developed precedents with respect to forced disappearances.

Among obstacles to the effectiveness of the European Court are the failures of states, including the United States, to accept compulsory jurisdiction. Only the relatively few states that have accepted the compulsory jurisdiction of the court may submit a case to the court. An important evolutionary development, however, has centered upon greater use of advisory opinions, which states may request regarding the compatibility of domestic laws with OAS standards. According to Stack, this has contributed to the emergence of a type of common law basis for human rights in the inter-American system. More innovative decisions are considered to include such things as definitions of basic nature of democracy and the application of the convention-based right of habeas corpus to those of life and humane treatment. Important precedents are thus being established even though the cases involved is numerically small.

In "The New GATT: Dispute Resolution and the Judicialization of the Trade Regime," emphasizing the interaction of international norms and negotiated interests, Alec Stone Sweet traces the very complex development of the GATT dispute resolution system from bilateral bargaining relations to what he describes as a hierarchy of court-like structures with compulsory jurisdiction. The initial GATT treaty urged parties to settle their differences "dyadically," on the basis of mutual interests and law. With the authorization by GATT of retaliatory trade policies for a state affected by the violation of an agreement, a judicial element appeared. "...GATT law generally codifies the lowest common denominator interests of the negotiating parties or complicated bargains produced by quid pro quos and side payments…. The very success of the GATT was partly a result of legal imprecision: the more vague a rule, the easier it was for states to interpret the rule as serving their national interest and thus sign on to it." (p.121) The judicial element was thus a combination of mediation, conciliation and arbitration. Interestingly enough, Sweet considers the politicization of dispute systems to have originated in the Nixon administration's order to "comb the files" for trade complaints that could be presented to GATT.

The book fills a gap in its comprehensive survey of the steps by which transnational norms and institutions have evolved from a much stricter national state framework for the conduct of international relations. All-in-all this is a valuable contribution to the beginning literature on the politics of legitimacy and the development of international--or "transnational"--legal norms.
 


Copyright 1998