Courts Crossing Borders: Blurring the Lines of Sovereignty

Vol. 15 No.10 (October 2005), pp.937-941

COURTS CROSSING BORDERS: BLURRING THE LINES OF SOVEREIGNTY, by Mary L. Volcansek and John F. Stack, Jr. (eds). Durham, North Carolina: Carolina Academic Press, 2005. 264pp. Softcover. $28.00. ISBN: 1-59460-055-4.

Reviewed by Albert P. Melone, Professor Emeritus, Department of Political Science, Southern Illinois University Carbondale. Email: almelone [at] verizon.net

This is an edited book that brings together in one highly readable place a crisp and engaging look at transnational courts in today’s global world. It is ideally well-suited for those who hope to introduce their students to the study of comparative courts and international law, whether the focus group is undergraduate or graduate students of public law, comparative politics, or international relations. Faced with the empirical evidence of the growing importance and number of dispute resolution venues around the world, it has become increasingly clear in recent years that the traditional concept of national sovereignty is in need of revision. Yet, Mary L. Volcansek and John F. Stack, Jr., wearing the twin hats of editors and contributors, elaborate even further. They argue as early as page 9 that giving up a modicum of sovereignty is a small price to pay for advancement of human rights and free trade that will benefit both rich and poor countries. Somewhat later, at page 21, they argue further that scholars of international relations should better appreciate how transnational courts apply hierarchical rules and regulations to the chaos of international relations.

Although some readers may disagree with the normative predisposition expressed by Volcansek and Stack, this should not cause them to put this modestly priced paperback volume down. The nine contributors to this 10 chapter book provide eye-opening descriptions and in most cases thought-provoking explanations of the new realities. Although not completely congruent, the collection is organized first around trade matters and then human rights and the attendant subjects of courts, alternative dispute resolution, universal criminal jurisdiction, and the punishment of rape.

In her chapter on “Courts and Regional Trade Agreements,” Mary Volcansek makes a convincing case that if neo-liberal trade theorists are correct in arguing the inevitability of continuing and intensifying competition, it follows that conflicts are a likely consequence. Therefore, the need for dispute resolution mechanisms with courts is likewise a necessary fact of political life. Artfully adapting the conceptual framework of others to make her own point, Volcansek characterizes the soft versus hard form of legalism as the difference between constant negotiation and diplomacy on one hand, and rule making and certainty on the other. Indeed, this is the lesson gleaned from the European Union experience. Clearly, greater compliance is gained through hard legalism than through the more familiar but uncertain mode of continuing diplomacy. She points out, as do others, that non-state actors seek the certainty of hard legalism as a way to [*938] lower the costs of cross-boundary transactions.

An excellent follow-up to the topics raised by Professor Volcansek is found in Miguel Poiases Maduro’s chapter centering on the European Court of Justice (ECJ) and the issue of sovereignty. He contrasts the traditional conception of sovereignty that is defined as one possessing an autonomous and hierarchical legal order with the actual facts on the ground. Although the author does not make the point himself, there is a parallel with what John Marshall taught us in MCCULLOCH v. MARYLAND (1819) about the American constitutional design and what is transpiring in Europe; the legitimacy of the ECJ is derived from the people and not simply from the national qua state sovereigns. This is at any rate what Maduro means by European legal pluralism. Integral to that pluralism has been the ECJ’s delicate navigation of the treacherous waters around the difficult shoals of state sovereignty. He does a fine job of explaining the forces at work that have made that journey possible. These include the role of state and non-state actors possessing cross-border business interests to circumvent the decisions of national political and legal institutions. Yet, it is incorrect to conclude that the ECJ has achieved hegemony over state institutions. Maduro characterizes the relationship as “competitive sovereignty.” It is a matter of equal claims on sovereignty that possess significant pragmatic reasons as well as normative justifications making the EU system possible.

Joseph Jupille’s chapter assesses how the ECJ has balanced trade, environmental protection, and politics. His analysis begins with an outline of expectations, employing the approaches of neofunctionalism and intergovernmentalism. Neofunctionalism centers on the proposition that transnational market actors drive the dispute resolution process and subsequent rule-making at the expense of member-state government actors. Intergovernmentalism, as an operative concept, regards EU member states as most important with the ECJ attending to member state preferences. The author’s quantitative data and doctrinal analysis lead him to a somewhat ambiguous conclusion. The quantitative data tend to vindicate the neofunctional perspective. But Jupille’s doctrinal analysis reveals what he calls a “more nuanced picture” (p.73), which is consistent in some measure with the intergovernmental perspective. In other words, while transnational business interests view environmental restrictions on trade as inconsistent with EU law, the justices of the ECJ have ruled in a number of important cases that environmental protection trumps free trade. Yet, in the overwhelming number of opinions the court upholds EU laws over national laws in those instances of environmental/trade conflict. The author concludes that the blurring of the lines among ecological, economic, and political borders is something to expect in the future.

Although hardly fatal, I think the editors erred in positioning David O’Brien’s account of dispute resolution processes under the NAFTA agreement two chapters away from the preceding chapters concerning economic trade. O’Brien’s contribution is an ideal follow up to the expositions on the European experience. The distinction between [*939] economic conflicts and human rights disputes is complicated enough without asking readers to move among two or three levels of abstraction simultaneously. In any event, we learn from O’Brien that under NAFTA, unlike EU law, ad hoc quasi-courts are established to adjudicate binational disputes. The dispute resolution systems seems to fit more closely Martin Shapiro’s (1981) conception of the ideal triadic relationship wherein the disputing parties are better situated to choose both the norms for settling their dispute and for selecting those who will be making the decisions. O’Brien does a fine job in describing the jurisdiction and processes of these panels and relates his empirical findings about decisions involving anti-dumping and countervailing duties disputes. These five-person NAFTA panels are reminiscent of the arbitration process widely practiced in the United States; they possess considerable virtue as expeditious handlers of disputes, although the finality of their decisions are limited to decisions of administrative agencies but not the laws of the United States, Canada, and Mexico. Without taking a position himself, O’Brien alerts readers to an underlying problem of legitimacy. NAFTA, as a piece of U.S. legislation, is constitutionally suspect because it was promulgated, not under the treaty-making authority of two-thirds vote of the Senate, but rather under what is euphemistically dubbed, fast-track legislation.

With the sole exception of the O’Brien selection, four of the last five chapters center on human rights. Doris Marie Provine presents a report of her research findings on how the European Court of Human Rights (ECHR) has treated the non-discrimination provision (Article 14) of the European Convention of Human Rights. She provides a fine primer on how this institution, located at Strasbourg in France, fits historically with other European institutions and how it has become the place to go when member states violate human rights. Provine describes the court’s growing workload, but she is more interested in how it has positioned itself as “the conscience of Europe” (p.88). On the basis of this research it is fair to conclude that the ECHR has exercised considerable self-restraint when adjudicating non discrimination allegations. It has assumed this role by balancing the right of individuals to be free of discrimination against the state’s discretion in policy making.

In contrast to the European experience, the story of the institutional development of human rights in Latin America, told by John F. Stack, Jr., is one of struggle, if not disappointment. Yet, the author makes an interesting case for progress and promise. Stack nests his analysis in the conceptual framework provided by Thomas Risse, Stephen Ropp, and Kathryn Sikkink (1999). They attribute the establishment of transnational human rights organizations to first important ideas, followed by a collective sense of appropriate norms that eventually leads to changing identities, interests, and behavior patterns among citizens and states. The 1948 American Declaration of Human Rights is the principled ideal that lays the groundwork for the important but incomplete efforts of the Organization of Human Rights Inter-American Commission established in 1959. Functioning largely as a consciousness-raising body, by 1971 the Commission was able to focus member states on human rights as one of its [*940] central concerns. The Commission’s activities were in turn reinforced by the rise of nongovernmental organizations, such as Amnesty International and Americas Watch. These groups link otherwise weak and isolated individuals to broader political support outside the confines of repressive national regimes. Then, in 1979, for those states accepting its compulsory jurisdiction, the Inter-American Court for Human Rights was established. Due in large part to its careful attention to the authority of both states and individuals, this body has created the institutional authority to act as a strong moral voice for human rights values and norms. Stack does a fine job describing and interpreting the politics surrounding how these developments took place. In the end, however, he is well aware that the movement toward transnational human rights institutions in Latin America has not realized the laudatory results compared to Europe with its paradigmatic cross-boundary courts. Yet, given the unique history of inter-governmental relations in Latin America, Stack remains cautiously optimistic.

Donald W. Jackson performs an important intellectual service by presenting a clear account of the historical background and fundamental issues involved in the exercise of universal criminal jurisdiction, especially with respect to the controversial International Criminal Court. He carefully describes the absolute and relative meaning of the sovereignty concept. The former is traceable to anti-democratic roots and is inconsistent with U.S. constitutional principles. The latter is consistent with the hopes of those visionaries at the end of World War II who backed the creation of the United Nations and is a view shared by most Europeans, although many Britains have found it a hard pill to swallow. Jackson traces the precedents for the creation of universal criminal jurisdiction by invoking nineteenth century international piracy and slavery conventions, the post-World War II Nuremberg trials, the adoption of the UN Genocide Convention, the Geneva Convention of 1949, the Eichmann trial, and the 1984 UN Convention against Torture and other cruel or inhuman treatment or punishment. He then details attempts by prosecutors in particular states, including Spain, Senegal, and Belgium, to exercise jurisdiction over non-nationals for violating international human rights’ norms. Jackson explains why these attempts at exercising jurisdiction ultimately failed—leading him to conclude that the International Criminal Court is probably the best solution. He then briefly discusses the Princeton Principles on Universal Jurisdiction that is more expansive than the Rome Statute for the International Criminal Court. Underscoring one of the premises for the entire book, Jackson ends his fact-packed essay with his own plea to American political scientists. He wants us to create more space in our intellectual tool boxes for understanding the connection between state-based courts and regional/transnational institutions. Of course, he is correct.

In the book’s last chapter Kimi King and James Meernick tackle the question of whether the International War Crimes Tribunal for the Former Yugoslavia (ICTY), established by the UN Security Council, has advanced the principle that rape is an unacceptable instrument of war. They proceed by first describing the [*941] political uses of rape through the centuries. Second, they outline how and why the ICTY was established for war crimes committed by soldiers and their Serbian, Bosnian, and Croatian commanders. Employing OLS regression techniques, the researchers then assess the relative significance of prosecutions for rape, command and control, and crimes against humanity, as each relates to the length of sentences imposed by the tribunal. Although the researchers do not find support for the claim of feminist critics that the ICTY has not done enough to protect women’s rights and that it has been ineffective, they conclude nonetheless that the inclusion of rape charges is not as important as other substantive charges, including genocide and crimes against humanity. These findings are interesting, but King and Meernick analyze a total of only 29 cases. It is unusual and commonly problematic to employ regression analysis with so few cases. This is especially the case because the researchers might have, as an alternative, supplied simple percentage or correlation matrix tables to help readers ascertain first the bivariate relationships and then, for heuristic purposes, analyze the regression results as they do. As more decisions are rendered by the ICTY, a variety of regression related techniques may be used with greater confidence.

These days too many edited books fail to include footnotes, bibliographies, tables of cases, and indexes. Gratefully, this book is a notable exception. Enhancing the learning process, each of the ten chapters include reference citations as footnotes (as in the bottom of the page where the notations appear), and not at the end of the chapter or all together at the end of the book as has become fashionable in modern book publishing. The authors also include a complete bibliography, a table of cases, and an index, three additional elements found in quality books but sorely lacking in much of modern publishing. In sum, COURTS CROSSING BORDERS is a quality effort that deserves careful reading. Enhancing a deeper understanding of this timely topic, it is a book that can be profitably studied by students, scholars, and the curious public.

REFERENCES:

Risse, Thomas, Stephen C. Ropp, and Kathryn Sikkink. 1999. THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE. Cambridge: Cambridge University Press.

Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press.

CASE REFERENCES:

MCCULLOCH v. MARYLAND, 17 US 316 (1819).

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