Toward a theory of effective supranational adjudication.

• Author: Helfer, Laurence R.

Contents

1. The Measure of Success: Defining "Effective" Supranational Adjudication

   1. Defining Effective Adjudication by Domestic Courts

   2. Assessing the Effectiveness of International Adjudication

   3. Defining Effective Supranational Adjudication

2. The Story of Europe

   1. The European Court of Justice

   2. The European Court of Human Rights

   3. The European Courts Compared

3. A Checklist for Effective Supranational Adjudication

   1. A Methodological Note

   2. The Checklist

      1. Factors Within the Control of States Party to an Agreement Establishing a Supranational Tribunal

         a. Composition of the Tribunal

         b. Caseload or Functional Capacity of the Court

         c. Independent Fact finding Capacity

         d. Formal Authority or Status as Law of the Instrument That

         the Tribunal Is Charged with Interpreting and Applying

      2. Factors Within the Control of the Judiciary

         a. Awareness of Audience

         b. Neutrality and Demonstrated Autonomy from Political

         Interests

         c. Incrementalism

         d. Quality of Legal Reasoning

         e. Judicial Cross-Fertilization and Dialogue

         f. Form of Opinions

      3. Factors Often Beyond the Control of States or Judges

         a. Nature of Violations

         b. Autonomous Domestic Institutions Committed to the Rule

         & of Law and Responsive to Citizen Interests

         c. Relative Cultural and Political Homogeneity of States

         Subject to a Supranational Tribunal

   3. Reviewing the Checklist

4. Applying the Checklist to the United Nations Human Rights Committee

   1. An Overview of the Committee

      1. The Reporting Process

      2. General Comments

      3. The Petition System

   2. Toward an Increasingly Judicial Approach to the

      Petition System

      1. Factors Principally Within the Control of States Parties

         a. Composition of the Tribunal

         b. Case Load or Functional Capacity of the Tribunal

         c. Independent Factfinding Capacity

         d. Formal Authority or Status as Law

      2. Factors Within the Control of the Tribunal

         a. Awareness of Audience

         b. Neutrality and Demonstrated Autonomy from

         Political Interests

         c. Incrementalism and Awareness of Political Boundaries

         d. Quality of Legal Reasoning

         e. Judicial Cross-Fertilization and Dialogue

         f. Form of Opinions

      3. Factors Often Beyond the Control of States or Judges

         a. Nature of Violations

         b. Autonomous Domestic Institutions Committed to the Rule

         of Law and Responsive to Citizen Interests

         c. Cultural and Political Homogeneity

   3. Summing Up the Committee's Performance Under the Checklist

5. A Prescription for Enhancing the Effectiveness of the Human Rights Committee: Converging with the ECHR In a Global Community of Law

   1. Elements of a Community of Law

   2. Building a Global Community of Law

   3. A Modest Proposal: Dialogue and Convergence Between the

   European Human Rights Tribunals and the Committee

   1. Thoughtful Convergence

   2. A Bounded Framework for Divergence

      a. Differences in the Rights Protected by the Two Treaties

      b. Divergence Where Object and Purpose Differ

      i. Reference to Democratic Principles

      ii. Teleological Methods of Interpretation

   3. Divergence from a "European Gloss" on Human Rights

   4. Divergence Where the Committee Improves on European

      Precedents

6. Conclusion

   Supranational adjudication in Europe is a remarkable and surprising success. Over the past few decades, it has become increasingly clear that the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have convinced national governments, individual litigants, and the European public to endorse and participate in frequent and often high-stakes adjudication at a level above the nation-state. Both tribunals began their existence as creatures of classic public international law, established by treaties--The Treaty of Rome(1) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention)(2)--and perched atop national governments and national law with no direct relationship to either.(3) Somehow, however, through a combination of perspicacity, foresight, and tenacity, both tribunals developed successful strategies to make their judgments as effective, for the most part, as national court rulings.(4)

   The central question motivating this Article is whether the success of supranational adjudication in Europe can be translated or transplanted to other regions of the globe. Alleged obstacles are easy to find.(5) The nations of Western Europe that form the core of the European Union and the Council of Europe are established liberal democracies with strong domestic traditions of the rule of law.(6) They also share a common core of social, political, and legal values that European jurists themselves have linked to the effectiveness of the two tribunals.(7) Their hopes for economic integration and their determination to safeguard basic human rights were rooted in the searing experience of two world wars. These conditions do not hold for the global community of nations;(8) they may well be absent even for geographically linked nations in other regions.(9)

   Yet, what impact, if any, do these factors have on successful supranational adjudication? We suggest that a critical component of the ECJ's and the ECHR's success is the distinctive nature of their jurisdiction. Although both tribunals have the power to adjudicate state-to-state disputes--the province of traditional international adjudication--each has compiled a more successful compliance record in cases involving private parties litigating directly against state governments or against each other. We define adjudication of these cases as supranational adjudication and jurisdiction over these categories of cases as supranational jurisdiction. The provisions for such jurisdiction in the founding documents of both tribunals provide a point of departure for penetrating the surface of the state, allowing the tribunals to interact directly with the principal players in national legal systems.(10) Further, stripping the state of its unitary facade creates the possibility of direct relationships between the tribunals and different governmental institutions such as courts, administrative agencies, and legislative committees. The result, at least in Europe, has been the emergence of a "community of law": a partially insulated sphere in which legal actors interact based on common interests and values, protected from direct political interference.

   The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. We contend that the European tribunals have been at least the partial architects of their own success and that their experience can form the basis of a potentially universalizable model. What is needed is an actual theory of effective supranational adjudication, an effort to isolate the various factors that have contributed to the European success story and to identify those that can be replicated beyond Europe. Developing such a theory first requires defining "effective" supranational adjudication as precisely as possible. We define effective adjudication in terms of a court's basic ability to compel or cajole compliance with its judgments. In the supranational context, effective adjudication depends on a supranational tribunal's ability to secure such compliance by convincing domestic government institutions, directly and through pressure from private litigants, to use their power on its behalf.

   The next step is to distill the factors that observers of and participants in ECJ and ECHR adjudication have identified as common elements in the two tribunals' success.(11) We organize these factors into a "checklist" of effective supranational adjudication, categorizing and ranking them in rough order of their presumed importance. We make no effort to test these factors systematically, a process that would require expanding the range of tribunals examined, ensuring variation in their relative performance, and controlling across factors. We instead offer the checklist primarily as a distillation of current knowledge and as a starting point for further research into these and other tribunals.

   Even as a preliminary effort, however, the checklist should prove a useful tool for at least a rough assessment of the effectiveness of other supranational tribunals relative to the ECJ and the ECHR. States around the world have increasingly recognized the right of private parties to bring claims against them before supranational tribunals and adjudicatory bodies.(12) This trend is particularly evident in international human rights law.(13) Human rights law is a particularly suitable area for testing the generalizability of the European experience with supranational adjudication because the global and regional human rights regimes protect common legal norms that, on the whole, are grounded upon identical or substantially similar treaty texts.(14)

   We thus proceed in the second half of the Article to apply the checklist to the United Nations Human Rights Committee (the Committee or the UNHRC), an eighteen-member panel of experts that issues nonbinding "views" indicating whether a state has violated the International Covenant on Civil and Political Rights (ICCPR or the Covenant).(15) Under the First Optional Protocol to the Covenant (the Optional Protocol),(16) states parties may authorize individuals alleging human rights violations to file complaints against the states directly with the Committee. Since its first meeting in 1977, the Committee has established, through a slow accretion of case law, a more precise understanding of global human rights norms in a variety of complex factual settings.

   Although the Committee is the most active global counterpart to the European human rights tribunals, its work is far less well-known to scholars, litigants, and human rights activists, and its success as a supranational institution (including the record of compliance with its decisions) is far less certain.(17) Recently, however, the Committee's activities have sparked renewed interest.(18) Emboldened by the success of regional regimes, by the end of the Cold War and the rise of...