u Ottawa L'Universite' canadienne Canada's university FACULTE DES ETUDES SUPERIEURES mn FACULTY OF GRADUATE AND ET POSTOCTORALES U Ottawa POSDOCTORAL STUDIES
L'Univcrsittf canadienne Canada's university
Alberto Alvarez AUTEUR DE LA THESE / AUTHOR OF THESIS
Ph.D. (LL.D.) GRADE/DEGREE
Faculty of Law FACULTE, ECOLE, DEPARTEMENT / FACULTY, SCHOOL, DEPARTMENT
The WTO Appellate Body's Autonomy to Transform the WTO Dispute Settlement System: Insights from Theory and A Comparative Analysis of the International Court of Justice and the U.S. Supreme Court
TITRE DE LA THESE / TITLE OF THESIS
Anthony VanDuzer DIRECTEUR (DIRECTRICE) DE LA THESE / THESIS SUPERVISOR
CO-DIRECTEUR (CO-DIRECTRICE) DE LA THESE / THESIS CO-SUPERVISOR
EXAMINATEURS (EXAMINATRICES) DE LA THESE/THESIS EXAMINERS
William Flanagan Debra Steger
Donald McRae Peter Swan
Gary W. Slater Le Doyen de la Faculte des etudes superieures et postdoctorales / Dean of the Faculty of Graduate and Postdoctoral Studies THE WTO APPELLATE BODY'S AUTONOMY TO TRANSFORM THE WTO DISPUTE SETTLEMENT SYSTEM: INSIGHTS FROM THEORY AND A COMPARATIVE ANALYSIS OF THE INTERNATIONAL COURT OF JUSTICE AND THE U.S. SUPREME COURT
Alberto Alvarez
Thesis Submitted to the Faculty of Graduate and Postdoctoral Studies In partial fulfillment of the requirements For the Doctorate of Laws
Common Law Section Faculty of Law University of Ottawa
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While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ACKNOWLEDGEMENTS
To Eliana. A tu lado la vida tiene el mas profundo de los sentidos.
To Leticia, and Valeria Aluna.
To Alberto & Concha, Omar & Mariela.
In memoriam: Carlos & Susa, Eulogio & Rosa A.
This thesis would not have been possible without the devotion, encouragement, kindness, and profound critical judgment of Professor Anthony VanDuzer, to whom the author expresses the deepest gratitude.
The author is also grateful to Mitali Das for her constant and professional editing support during the writing of this thesis. THE WTO APPELLATE BODY'S AUTONOMY TO TRANSFORM THE WTO DISPUTE SETTLEMENT SYSTEM: INSIGHTS FROM THEORY AND A COMPARATIVE ANALYSIS OF THE INTERNATIONAL COURT OF JUSTICE AND THE U.S. SUPREME COURT
TABLE OF CONTENTS
Introduction 1
CHAPTER I. Luhmann's Theory of Autopoiesis and the Self-Development of Judicial or Quasi-Judicial Bodies 8
1.1. The Basic Characteristics of Autonomous Systems 13
1.1.1. The Identity of Autonomous Systems 14
1.1.2. Self-Observation of Autonomous Systems 15 1.1.3. Recursivity: Circular Operation and Re-creation of Autonomous Systems 17
1.1.4. Autonomous Systems and Their External Environment 17
1.1.5. Autonomous Systems'Capacity to Self-Transform 19
1.1.6. Co-evolution of Autonomous Systems 21
1.1.7 Summary 22
1.1.8 The Theoretical Context for Luhmann's Theory of Autonomous Systems 23
1.2. The Operation of Some Judicial Bodies as Autonomous Systems 27
1.2.1. The Definition of Courts for the Purpose of This Thesis 29
1.2.2. The Identity of Courts 34
1.2.3. The Self-Observation of Courts 38
1.2.4. The Recursive Operation of Courts 40
1.2.5. Courts and their External Environment 43
1.2.6. The Self-Transformative Autonomy of Courts 45
1.2.6.1. Conditions for the Existence of A Court's Autonomy to Self-Transform 47
1.2.6.1.1. A Court's Capacity to Adopt Decisions Related to Itself 47 1.2.6.1.2. The Existence of a Menu of Choices for Autonomous Courts to Self-Transform 49
1.2.6.1.3. Courts' Ability to Steer Their Self-Transformations by Determining Their Timing, Extent, and Justification 60
1.2.1.6.1.3.1 Public Choice Theory's Description of Collective Decision Making 62
1.2.1.6.1.3.2. The Costs of Collective Decision-Making in Collegial Courts 64
1.2.1.6.1.3.3. General Description of the Operation of the Decision-Making Process
in Collegial Courts 65
1.2.1.6.1.3.4. What Do Judges in Collegial Courts Bargain About? 68
1.2.1.6.1.3.5. Collective Decision-Making and Courts' Steering of Their Self-Transformations by the Selection of Their Timing, Extent, and Rationale 77 1.2.1.6.1.3.5.1. Courts' Direction of Self-Transformation in the Face of External Indifference 78
1.2.1.6.1.3.5.2. Courts' Direction of Self-Transformation in the Face of Powerful External Opposition 79
1.2.1.6.1.3.5.3. Courts' Direction of Self-Transformation in the Face of
Open and Powerful External Support 80
1.2.1.6.1.3.5.4. Summary 82
1.2.6.2. Note of Caution: The Limits of the Self-Transformative Autonomy of Autonomous Courts 83 1.2.6.2.1. The External Environment as a Constraint to Some Courts'
Autonomy to Self-Transform 84
1.2.6.2.2. Collegiality as an Internal Constraint 86
1.2.6.2.3. Courts'Self-Observation as a Constraint 90
1.2.6.2.4. Courts Cannot Bring Cases 90
1.2.7. Some Courts' Influence over External Autonomous Systems 91
1.3. Conclusions of Chapter I 93 CHAPTER II. The Self-Transformative Autonomy of Some National and International Courts in Light of Luhmann's Theory of Autonomous Systems
ILL The United States Supreme Court as an Autonomous System and Its Autonomy to Self-Transform 98
II. 1.1. Features of the U.S. Supreme Court as an Autonomous System. 100
II. 1.1.1. The Identity of the U.S. Supreme Court 100
II. 1.1.2. Self-Observation and Self-Reference in the Operation
of the U.S. Supreme Court 103
II. 1.1.3. The Recursive Operation of the U.S. Supreme Court 106
II. 1.1.4. The U.S. Supreme Court and the External Environment 106
II.1.1.5. The U.S. Supreme Court and Luhmann's Requirements for the Existence of Its Autonomy to Self-Transform 111 II. 1.1.5.1. The U.S Supreme Court Adopts Decisions Regarding Itself 112
II. 1.1.5.2. The U.S. Supreme Court Has a Set of Possible Alternatives to Choose From When Deciding Cases, Including Those In Which a Self-Transformation Is at Issue 114
II.1.1.5.3. The U.S. Supreme Court's Steering of Its Autonomy to Self-Transform by Its Ability to Select the Timing, Scope and Justification of Its Self- Transformations 116
11.1.1.5.3.1. The Collegial Decision-Making Process in the First Decades of the U.S. Supreme Court 118
11.1.1.5.3.2. The Collegial Decision-Making Process of the U.S. Supreme Court in the Twentieth Century 120
11.1.1.5.3.3. The U.S. Supreme Court's Selection of the Time, Scope, and Justification of Self-Transformations 127
11.1.1.5.3.4. The Self-Transformation of the U.S. Supreme Court: The US Supreme Court as a Powerful Institutional Actor 132
11.1.1.5.3.4.1. Marbury v. Madison and the Judicial Review of Federal Legislation 134 II.1.1.5.3.4.2. The U.S. Supreme Court and the Judicial Review of State Legislation 138
II. 1.1.5.4. Restrictions on the U.S. Supreme Court's Self Transformative Autonomy 141
II. 1.1.6. The U.S. Supreme Court's Influence over External Autonomous Systems and in Particular the U.S. Federal State 146
II. 1.1.6.1. The U.S. Supreme Court and Its Role in Strengthening the Powers of
Congress 146
II. 1.1.6.1.1. The U.S. Supreme Court Allows Congress to Create Federal Institutions 147
II.1.1.6.1.2. The U.S. Supreme Court's Ample Interpretation of the Commerce Clause 148 II. 1.1.6.2. The U.S. Supreme Court's Strengthening of the U.S. Executive 153
II. 1.1.6.2.1. Deference to Administrative Agencies' Interpretation of Legislation 153
II. 1.1.6.2.2. Broad Presidential Powers to Conduct Foreign Affairs 156
II. 1.7. Conclusion Regarding the Operation of the U.S. Supreme Court as an Autonomous System 161
II.2. The Operation of the International Court of Justice as an Autonomous System with Particular Emphasis on Its Autonomy to Self-Transform 164
II.2.1. Some Features of the International Court of Justice as an Autonomous System. 167
11.2.1.1. The Identity of the International Court of Justice 168
11.2.1.1.1. The International Court of Justice as Advisor of the United Nations 168
II. 2.1.1.1.1. Quasi-Legislative Character of the Advisory Role of the International Court of Justice 170
11.2.1.1.2. The Judicial Identity of the International Court of Justice 173
11.2.1.2. Self-Observation by the International Court of Justice 179
11.2.1.3. The Recursive Operation of the International Court of Justice 184
11.2.1.4. The ICJ's Observation of Its External Environment 186
II.2.1.4.1. The ICJ's Denial of Observation of the External Environment 186 II.2.1.4.2. The International Court of Justice's Recognition of Its Observation of the External Environment 190
II.2.1.5. The Self-Transformative Autonomy of the International Court of Justice 195
11.2.1.5.1. The International Court of Justice Adopts Decisions Regarding Itself 196
11.2.1.5.2. The International Court of Justice Has A Set of Options to Choose from When Deciding a Case Involving a Self-Transformation 199
11.2.1.5.3. The International Court of Justice's Steering of Its Self-Transformations by Its Ability to Select Their Opportunity, Extent, and Rationale 203
11.2.1.5.3.1. The Collegial Decision-Making Process of the International Court of Justice 204
11.2.1.5.3.2. The External Environment as a Matter Judges Debate About Within the Court's Collective Decision-Making Process 210
11.2.1.5.3.3. The Effects of the Collegial Decision-Making Process of the International Court of Justice 213
11.2.1.5.3.4. Concrete Evidence of the Court's Steering of Its Self-Transformative Autonomy Resulting from Its Collegial Decision-Making Process 215
11.2.1.5.4. Self-Transformations of the International Court of Justice 224
11.2.1.5.4.1. The International Court of Justice's Increasing Control over Disputes 225
11.2.1.5.4.1.1. The International Court of Justice's Power to Assess New Claims of Jurisdiction after the Filing of Applications 226
11.2.1.5.4.1.2. The Power of the International Court of Justice to Interpret Parties' Submissions 228
11.2.1.5.4.1.3. The International Court of Justice's Freedom to Develop Its Own Arguments 229
11.2.1.5.4.1.4. The International Court of Justice Sets the Agenda of the Dispute Once the Parties Have Established Its Framework 233
11.2.1.5.4.1.5. The International Court of Justice's Flexibility to Accept and Assess
Public Evidence Not Produced before the Court 236
11.2.1.5.4.2. The International Court of Justice's Control over Advisory Opinions 239
11.2.1.5.4.3. Binding Effect of Provisional Measures of the International Court of Justice 241
11.2.1.5.4.4. The International Court of Justice as a Court Able to Order States
on How to Implement Its Rulings 247
11.2.1.5.4.5. Expansion of the Jurisdiction of the International Court of Justice 249
11.2.1.5.4.5.1. The International Court of Justice's Concurrent Jurisdiction with the UN Security Council Concerning Inter-State Armed Conflict 250 11.2.1.5.4.5.2. Judicial Review of UN Security Council Resolutions 254
11.2.1.5.4.6. A Self-Transformation That Did Not Take Place: The Self-imposed Jurisdiction to Deal with Violations of Jus Cogens 265
11.2.1.5.4.7. Preliminary Conclusion Regarding the International Court of Justice's Self- Transformations 267
II.2.1.5.5. Restrictions on the International Court of Justice's Self-Transformative Autonomy 271
11.2.1.5.5.1. The External Environment as a Constraint on the International Court of Justice's Autonomy to Self-Transform 271
11.2.1.5.5.2. Internal Institutional Restrictions on the Self-Transformative Autonomy of the International Court of Justice 278
11.2.1.6. The International Court of Justice's Influence over External Autonomous Systems: Requirements for the Declaration of Rules of Customary International Law 281
11.2.1.6.1. Low Degree of Influence: The Strict Approach to the Declaration of Rules of Customary International Law 283
11.2.1.6.2. The International Court of Justice's Significant Degree of Influence over the Development of Customary International Law: The Flexible Approach to the Declaration of Rules of Customary International Law 287
11.2.1.6.3. The Recent "Revival" of the Strict Approach Regarding Customary International Law 291
II.2.1.6.4 Summary 293
11.2.1.7. Partial Conclusion Regarding the Operation of the International Court of Justice as an Autonomous System 293 CHAPTER HI The Operation of the Appellate Body in Light of Luhmann's Theory and Its Autonomy to Transform the WTO Dispute Settlement System
III. 1. Dispute Settlement in the GATT 301
III.2. Brief Description of the WTO Dispute Settlement System and Its Main Innovations 306
III.3 The Operation of the Appellate Body as an Autonomous System 314
111.3.1. The Identity of the Appellate Body 315
HI.3.1.1. The Judicial and Quasi-Legislative Identity of the Appellate Body 315
III.3.1.2. The Distinctiveness of the Appellate Body's Dual Identity 320
111.3.2. The Self-Observation of the Appellate Body 321
111.3.3. The Recursive Operation of the Appellate Body 329
111.3.4. The Observation of the External Environment by the Appellate Body 330
111.3.4.1. Observation of the External Environment by Panels during the GATT 330
111.3.4.2. The Appellate Body and the External Environment 332
III.3.5 The Appellate Body and Luhmann's Requirements for the Existence of Its Autonomy to Transform the WTO Dispute Settlement System 337
111.3.5.1 Appellate Body's Possibility of Adopting Decisions About Itself and About the WTO Dispute Settlement System 338
111.3.5.2 The Appellate Body Has a Menu of Alternatives to Choose From When Deciding to Self-Transform or Transform the WTO Dispute Settlement System 342
111.3.5.3 The Appellate Body' Steering of the Exercise of Its Autonomy to Transform the WTO Dispute Settlement System 345
III.3.5.3.1 Two Level Collegial Decision-Making Process of the Appellate Body 346
III.3.5.3.1.1 Exchange of Views 349
III.3.5.3.1.1.1 Analysis of the Collegial Decision-Making Process that Takes Place during Appellate Body's Exchange of Views 349
III.3.5.3.1.1.1.1 Exchange of Views Regarding Novel Systemic Issues 351 III.3.5.3.1.2. The External Environment as a Matter Members Debate About During the Appellate Body's Collegial Decision Making Process 353
III.3.5.3.1.3 The Effects on AB Members of the Collegial Decision-Making Process of the Appellate Body 359
III.3.5.3.2 The Appellate Body's Steering of Its Self-Transformations by Selecting the Timing, Scope and Extent of Transformations of the WTO Dispute Settlement System 361
III.3.5.4 The Transformations Introduced Body to the WTO Dispute Settlement System
by the Appellate 366
III.3.5.4.1 Appellate Body and Panels' Increasing Control Over Disputes 367
III.3.5.4.1.1. Bolstering the WTO Quasi-Judiciary's Fact-Finding Powers 369 111.3.5.4.1.1.1. Appellate Body's Creation of the Members' Duty to Provide Requested Information to Panels 370
111.3.5.4.1.1.2. Panels' Right to Make Negative Inferences 373
111.3.5.4.1.1.3. Panels and Appellate Body's Right to Receive Unsolicited Amicus Curiae Briefs 374
III.3.5.4.1.1.3.1 Appellate Body's Control over the Self-Transformation In the Face of
Majority Opposition in the Amicus Curiae Controversy 377
III.3.5.4.1.1.4 Summary 380
111.3.5.4.1.2 The Appellate Body's Broadening of the Panels' Capacity to Assess Facts
380 111.3.5.4.1.2.1 Broadening Parties' Opportunity to Provide Evidence to Panels 380
111.3.5.4.1.2.2 Panels Can Assess Evidence of Facts that Pre-Date and Post-Date the Request for Establishment of the Panel 383
111.3.5.4.1.3 WTO Quasi-Judiciary's Control of the Disputes in Terms of Arguments 384
III.3.5.4.1.4. Appellate Body's Control over the Agenda of Disputes Once Parties have Established their Framework: Judicial Economy at the Appellate Level 387
III.3.5.4.1.4.1 Narrowing the WTO Panels' Control over the Agenda of Disputes vis-a-vis that of GATT Panels 390
III.3.5.4.1.4.2 Appellate Body's Steps to Control the Agenda of Appeals 392
III.3.5.4.2. The Appellate Body's Expansion of Its Jurisdiction and that of the WTO Dispute Settlement System 398
III.3.5.4.2.1. The Expansion of the Appellate Jurisdiction: Appellate Review of Compliance Panel Reports 398
111.3.5.4.2.2 Appellate Body's Extension of the Jurisdiction of the WTO Dispute Settlement System over Issues Deemed to Belong Exclusively to WTO Political Bodies 401
111.3.5.4.2.2.1 Jurisdiction of the WTO Dispute Settlement System over Balance-of- Payment Measures 403
111.3.5.4.2.2.2 Extension of the Jurisdiction of the WTO Dispute Settlement System over Free Trade Areas and Custom Unions 407
111.3.5.4.2.3 Summary 412
III.3.5.4.3 Self-Transformations that Did Not Take Place 412
111.3.5.4.3.1 The Self-imposed Limits to the Expansion of the Jurisdiction of the WTO Dispute Settlement System 412
111.3.5.4.3.2 AB's Lack of Solution to the Sequencing Problem of Articles 21.5 and 22.6 oftheDSU 415
III.3.5.5 Limits to the Appellate Body's Autonomy to Introduce Changes to the WTO Dispute Settlement System 417
111.3.5.5.1 The Appellate Body is not Self-Starter 417
111.3.5.5.2 Self-Observation as a Restraint to the Autonomy of the Appellate Body to Transform the WTO Dispute Settlement System 418
111.3.5.5.3 The Collegial Decision-Making Process as an Internal Constraint on the Exercise of the AB's Autonomy to Transform the WTO Dispute Settlement System 419
III.3.5.5.4 The External Environment as a Constraint on the Autonomy of the Appellate Body to Introduce Changes to the WTO Dispute Settlement System 421 III.3.6 The Appellate Body's Influence over External Autonomous Systems: The Appellate Body Case-Law Role in Moving the World Trading System Towards the Protection of the Environment 427
111.3.6.1. The Appellate Body and Environmental Protection under GATT Article XX(b) 430
111.3.6.2. The Appellate Body and Environmental Protection under GATT Article XX(g) 434
111.3.6.3. The Appellate Body and Environmental Protection under the Chapeau of GATT Article XX 437
III.4 Partial Conclusion Regarding the Operation of the Appellate Body as an Autonomous System 442
III.5. Assessment of the Functioning of the WTO Appellate Body as an Autonomous System Compared to the U.S. Supreme Court and the International Court of Justice 446
111.5.1. The Different Origins of the Quasi-Legal Identity of the International Court of Justice and the Appellate Body 447
111.5.2. Self-Observation, Observation of the External Environment and the Different Relevance for the AB of the U.S. Supreme Court's Issue Avoidance Techniques 450
111.5.3. Concerns for Compliance: A Comparison Between the International Court of Justice and the Appellate Body 455
111.5.4. The Expansion of Jurisdiction: A Comparative View of Its Impact on the U.S. Supreme Court, the International Court of Justice and the Appellate Body 458
111.5.5. Externally Compelled Self-Transformations: The Experience of the Appellate Body, the International Court of Justice, and die U.S. Supreme Court 459
111.5.6. The Self-Transformations of the International Court of Justice and the Appellate Body: Can the ICJ Provide Guidance to the AB? 460
III.5.6.1. The ICJ's Early Case Law Ordering States How to Implement Its Decisions and the Use by the Appellate Body of Article 19.1 of the DSU 462
111.5.7. Summary 466
CHAPTER IV. Potential Future Transformations to the WTO Dispute Settlement System Introduced by the Appellate Body
IV. 1. Judicial Review in the WTO Dispute Settlement System 469 IV. 1.1 The First Requirement for the Existence of Judicial Review within the WTO: Can the Ministerial Conference's or General Council's Interpretations Violate WTO Law? 472 IV. 1.2 The Second Requirement for the Existence of Judicial Review Within the WTO: Jurisdiction of a Panel and the AB to Assess the Legality of Alleged Ultra Vires WTO Ministerial Conference or General Council Interpretations 478
IV. 1.3 Some Procedural Aspects of the WTO Judicial Review 485
IV. 1.3.1 Which Members Could Raise the Inconsistency of the MC or the GC Interpretations? 485
IV. 1.3.2 How Could Members Claim that an Interpretation Violates Article IX.2 of the WTO Agreement? 486
IV.1.3.2.1. The Illegality of MC or GC Interpretations as a Defence 486
IV. 1.3.2.2. The Illegality of the MC or GC Interpretations as a Direct Claim of Violation 489
IV. 1.4. Summary and Conclusion 490
IV.2. The Appellate Body and the Effective Application of Norms Favouring Developing Country Members 492
IV.2.1. The Appellate Body's Control over the Terms of Reference to Favour Developing and Least Developed Country Members 494
IV.2.1.1 The Appellate Body and Its Established Jurisprudence Regarding the Terms of Reference of Disputes 496
IV.2.1.2 The WTO Judiciary's Exceptional Attempts to Attenuate the Strictness of the Terms of Reference Established by Complaining Parties 501
IV.2.1.2.1 Holistic Interpretation of Request for Establishment of Panels Made by Complaining Parties as a Tool to Loosen the Strictness of the Terms of Reference 503
IV.2.1.2.2 The Logical Continuum Technique as a Tool to Evade the Strictness of the Terms of Reference 507
IV.2.1.3 How the Appellate Body Could Allow Panels to Exceptionally Go Beyond the Terms of Reference to Favour Developing or Least Developed Country Complainants 510 IV.2.1.3.1 The Requirements of the Transformation Establishing a New Exception to the Jurisprudence of Terms of Reference for the Benefit of Developing Country or Least Developed Country Complaining Members 510
IV.2.1.3.2. Past GATT Practice Supporting The Transformation 514
IV.2.1.3.3 Additional Indirect Support for the Transformation: Appellate Body Case-Law Regarding Late Invocation of Defences by Respondent Members 515 IV.2.1.3.4 The Application of the Transformation and the WTO Judiciary's Duty to Make an Obj ective Evaluation of the Matter 517 IV.2.1.3.5. Until When Could Complainants Add New Claims in Panel Proceedings? 519
IV.2.1.3.6. Why Should the Transformation Favour Developing or Least Developed Members Acting as Complainants Against Developed Respondents? 520 IV.3 Conclusions of the Chapter 523
CHAPTER V. CONCLUSIONS 526 1
INTRODUCTION
The WTO Appellate Body (AB) observed in its report in United States—Import Measures on Certain Products from the European Communities that "[i]t is certainly not the task of either panels or the Appellate Body to amend the DSU .... Only WTO Members have the authority to amend [it]..."1 Such a statement seen by an outsider would be understood to indicate that the AB cannot introduce changes to the WTO dispute settlement system, because as it stressed, it is unable to do so. Although some AB members have recognized that when the WTO came into existence in 1995 the AB had to embark on a task of building institutions including not only itself, but also the WTO dispute settlement system and, in some ways, the WTO as a whole, such statements regarding this role of the AB are usually made along with others that highlight that the AB has strictly complied with the limitation set forth in Article 3.2 of the Dispute Settlement Understanding (DSU), whose last sentence provides that "recommendations and rulings of the DSB cannot ... diminish ... the obligations provided in the covered agreements."3
This thesis seeks to show that what the AB stated in United States—Import Measures on
Certain Products from the European Communities may not be totally true. In effect, the main purpose of this thesis is to demonstrate the hypothesis that the WTO AB has the
United States—Import Measures on Certain Products from the European Communities (2000), WTO Doc. WT/DS165/AB/R at para. 92 (Appellate Body Report), online: WTO
WTO dispute settlement system, as defined in the DSU.4 This autonomy has two different although related aspects. The first is that, formally, the AB is the organ that can introduce changes in the system, absent new treaty law.5 The second is that the AB itself, and not outside actors, can determine whether or not to introduce a new transformation, and if so, when, how, and to what extent to make institutional changes to the system. Thus, the AB possesses an important degree of autonomy to decide what the boundaries of the system are, always taking into account the political external environment generated, particularly, by WTO Members.
This thesis will attempt to show that, although the WTO is a member-driven organization, the process of self-transformation of the system by the AB may be considered to be one of its normal features and that the AB is by no means alone in possessing such autonomy. In fact, the thesis will show that a very similar process has been carried out by national courts, such as the U.S. Supreme Court, and by other international tribunals, such as the
International Court of Justice.
The AB is today the most active international adjudicative body in the world, at the apex of an international organization, the WTO, whose Members account for a significant share of all international trade and who have unleashed the most far-reaching process of
Understanding on Rules and Procedures Governing the Settlement of Disputes [DSU]. World Trade Organization. The Legal Texts. The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge: Cambridge University Press, 1999) [WTO Legal Texts]. 5 The AB is one among other WTO adjudicators, and therefore, it cannot be said that it is the only one able to introduce transformations to the WTO dispute settlement system. However, the AB has the last word regarding multiple facets of the system, and for this reason it can be said that, overall, the AB has the broadest capacity to change the said system. 3 economic liberalization carried out in recent history. As a result, it is important to better understand how its dispute settlement mechanism functions and evolves.
Traditionally, assessments of the AB's performance have been made on the basis of a detailed analysis of its jurisprudence. This thesis will also share this perspective but in light of a much broader one. On one hand, this thesis will try to describe the functioning of the AB on the basis of one of the most well-known contemporary sociological theories, whose realm of application has been expanded in recent years to cover multiple fields, from politics and law to cybernetics and arts. On the other, this thesis will add a comparative view of the AB in light of the two most analyzed domestic and international adjudicators in the world: the U.S. Supreme Court and the International Court of Justice.
Such a comparative evaluation will not only enrich the portrayal of the operation of the
AB, but also help understand important segments of its jurisprudence, including where the
AB gets guidance from and how, in particular, the work of the International Court of
Justice sometimes guides the AB when it decides issues of institutional consequences for the WTO dispute settlement system.
More specifically, the purpose of this thesis is to demonstrate four general hypotheses.
The first is that some judicial institutions can autonomously transform themselves. The second hypothesis is that the AB is one of these judicial institutions: it possesses such autonomy and has exerted it during its first years by developing new features of the WTO dispute settlement system in ways not explicitly provided for in the DSU negotiated by the
Contracting Parties. The third hypothesis is that it is possible to identify some new 4 potential features of the WTO dispute settlement system that the AB could autonomously develop for the benefit of the system. The fourth hypothesis is that Niklas Luhmann's theory of autonomous systems can be extended to provide the theoretical explanation for the existence of the AB's autonomy.
However, it is important to emphasize from the start that this thesis is descriptive in nature and does not attempt to determine, in particular, whether the AB should refrain from introducing changes to the WTO dispute settlement system or whether the AB should embrace an activist approach in this regard. Moreover, the comparative analysis is presented in order to emphasize the descriptive nature of the argument regarding the AB, and also to show how the self-transformative autonomy of the three courts has important constraints; that is, some courts cannot self-transform at will and without limits.
This thesis is divided into five chapters. Chapter I is aimed at providing the theoretical grounds on which the hypotheses will rest and therefore presents some of the main features of the theory of autonomous systems designed by Niklas Luhmann. This theory, in particular, shows that some systems autonomously re-create themselves on an ongoing basis. This tool will be used to help explain why some judicial institutions and, ultimately, the WTO Appellate Body can operate in ways similar to these systems, in the sense that some courts have autonomy to self-transform when adjudicating particular disputes, typically those in which parties have raised issues that, in addition to addressing the dispute between them, have institutional repercussions for the court adjudicating the case.
This chapter will also indicate the main constraints some courts may have when exercising 5 this autonomy. After describing the relevant elements of autonomous systems as understood by Luhmann, Chapter I will proceed to show that the operation of some courts may be similar in abstract terms to that of autonomous systems.
Within this context, Chapter II will test some elements of the theory of autonomous systems with regard to the U.S. Supreme Court and the International Court of Justice in order to show how their operation is similar to that of autonomous systems and, in particular, to display how these courts have autonomy to self-transform and have utilized it. This chapter will also illustrate the main constraints this autonomy has with regard to the above-mentioned judicial bodies and will also present some of the main transformations that they have effected in relation to other political institutions by means of their decisions. The purpose of this chapter is also to identify those features of the operation of these two courts that can shed additional light on the present and future functioning of the AB.
Chapter III seeks to demonstrate—on the basis of the characteristics of autonomous systems described in Chapter I—that the AB may operate as one of those systems and, specifically, that its autonomy allows it to introduce changes to the WTO dispute settlement system and that it has done so during its first years of operation. To demonstrate this hypothesis, this chapter will be divided into five parts. The first part will put the issue in historical perspective and will analyze the main characteristics of the informal dispute settlement system of the GATT 1947 in light of the concept of autonomous systems. The second part will illustrate the main developments brought about 6 to the system by the Uruguay Round and will detail the different stages of the WTO dispute settlement system. The third part will explore whether the AB operates as an autonomous system and, in particular, whether it possesses autonomy to self-transform.
This part will also show how the AB has exerted such autonomy and will identify the areas in which such self-transformations are completed, those in which the self- transformations are ongoing, and one that the AB refused to undertake. This part will end with the assessment of the main limitations of the AB to transform the WTO dispute settlement system. The fourth part will present the conclusions of the chapter. Finally, the fifth part will present a comparative assessment of the operation of the AB as an autonomous system in light of those of the U.S. Supreme Court and the ICJ.
Chapter IV asks whether there are more features of the WTO dispute settlement system that the AB could autonomously transform. Two possible transformations are analyzed: the first is the recognition of judicial review as an institutional feature of the WTO dispute settlement system, if the Ministerial Conference or the General Council starts using its interpretative power to render interpretations of the covered agreements as a norm- generating tool within the Organization. The second transformation suggested is to strengthen the position of developing and least developed country Members within dispute settlement proceedings, without affecting the impartiality of the system as a whole. To this end, this thesis will initially explore the viability of the AB's allowing panels to assert more control over disputes in which developing country Members act as complainants by ruling on claims not specifically included within the terms of reference but that are taken 7 up later by such complainants. This part will present the conditions the AB could establish to allow panels to do so and how such prerogative is consistent with past GATT practice.
Lastly, Chapter V provides the conclusions of the entire thesis, which are the following:
First, some courts may operate as autonomous systems do and they may have autonomy, albeit limited, to self-transform and to transform other institutions. Second, both the U.S.
Supreme Court and the International Court of Justice are two such courts. Third, the WTO
Appellate Body may also be included among those judicial bodies that hold such autonomy and has exerted it to introduce transformations to the WTO dispute settlement system. Additionally, this thesis will have shown that this process could eventually be expanded to other areas of the WTO dispute settlement system in which new transformations can be introduced, as suggested in Chapter IV. 8
CHAPTER I LUHMANN'S THEORY OF AUTOPOIESIS AND THE SELF-DEVELOPMENT OF JUDICIAL OR QUASI-JUDICIAL BODIES
This thesis seeks to show how the AB possesses a certain degree of autonomy to develop new important features of the WTO dispute settlement system not included in the Dispute
Settlement Understanding.6 To this end, this thesis will apply a sociological theory developed by Niklas Luhmann that is rooted in recent developments in biology.
6 The WTO dispute settlement system is a mixture of political and judicial features. It comprises political phases, such as consultations between Members involved in disputes, and the adoption of panels and AB reports by the Dispute Settlement Body. Although, as will be seen below, the adoption is virtually automatic, a distinctive feature of the system is that without such adoption the panel or the AB ruling of the case does not produce any effect. Another political characteristic of the system is that the way a Member has to comply with the adopted adverse ruling is or can be a matter for negotiations between this Member and the prevailing one. On the other hand, the system has an adjudication framework composed of ad hoc panels and a standing Appellate Body to resolve disputes on the basis of the WTO covered agreements. For this mixture of judicial and political facets, the dispute settlement system is often called quasi-judicial. For the purpose of this thesis, however, the autonomy the AB to develop new features of the system relates to the judicial branch of the system only, and therefore excludes its pure political phases. However, given that the operation of the judicial branch is so fundamental for the dispute settlement system, it is possible to claim that institutional changes to the former affect the latter as a whole. For this reason, the ability of the Appellate Body to transform the system will also be discussed. 7 It may seem, at first glance, that the use of biological concepts to explain social institutions is completely misplaced, given the significant differences that exist between the realm of biology and that of social science. However, the trans-disciplinary use of concepts is a well known instrument of human thinking. The use of concepts in the social sciences used by what have been labelled as hard sciences led to the emergence of positivism in the former. (See Jurgen Habermas, Connaissance et Interet (Paris: Gallimard, 1976) at 47). The study of the economic system, society, and last but not least, law was and is still approached with the rigour of physics and mathematics, seeking to arrive at scientific explanations and likely predictions of future outcomes. The study of law has also been undertaken using disciplines, such as geology, that one would be tempted to think could hardly offer any valuable insight. Efforts of this type were made in the nineteen century by H.S. Maine, who said that "if by any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibited." (As quoted by Hubert Rottleuthner, "Biological Metaphors in Legal Thought" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 97 at 108) [Teubner, Autopietic Law]). Efforts of this kind are still being made, and it suffices to mention the title of one of the most recent J.H.H Weiler articles: "The Geology of International Law - Governance, Democracy and Legitimacy". ((2004) 64 ZaoRV 547). The use of metaphors linking living beings and social institutions is another expression of this ever-present phenomenon of analysis. For example, the State has been seen somehow as a human being during the last two hundred years, as an "individual" composed of organs, so sociology and history started speaking of public organs as institutions that made up part of a large, single body, the State. (See Rottleuthner, supra note 7 at 100). Specifically, the use of biology in social sciences saw a significant increase after Darwin's theories of evolution of species. So, societies 9
Luhmann's theory argues that some social systems, like many biological systems, possess a certain degree of autonomy to transform themselves. Luhmann's theory of systems is a tool that can be deployed to try to determine whether the AB has self-transformation autonomy, and whether it used that autonomy to control the boundaries of the WTO
o dispute settlement system.
The claim that some systems change in unexpected ways is not, in a strict sense, a novelty.
Indeed, similar claims have been made not only in biology, but also in cybernetics9 and in
developed and evolved like animal species. Perhaps, one of the most influential social thinkers who used Darwin's theories was Herbert Spencer. He interpreted society in terms of "struggle, natural selection, survival of the fittest" (Rottleuthner, ibid, at 109) during the nineteenth century. (See Herbert Spencer, Principles of Sociology, Stanislav Andreski, ed. (Great Britain: McMillan, 1969). See also Herbert Spencer, Justice, (Paris: Librairie Guillaumin Et Cie, 1893) at Chapter II, describing the human justice as subsequent development of the justice sous-humaine). The reception that Darwin and Spencer received in Europe and North America was impressive, and their views of society were taken very seriously. The U.S. Supreme Court, for instance, followed closely these theories during the beginning of the twentieth century in Lockner v. New York (198 U.S. 45 (1905) [Lockner]), in which the Court struck down legislation that established minimum wages for men. In a dissenting opinion by Justice Oliver Wendell Holmes, that has become canonical, and that was adopted later by the Court when it changed its jurisprudence, he criticized the Court and said, "The Fourteenth Amendment [of the U.S. Constitution] does not enact Mr. Spencer's Social Statics ... a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State, or of laissezfaire..." This frequent use of concepts of other disciplines is explained by the new perspectives they bring with them, although certainly these analogies must be handled with care to be able to produce meaningful results in the new domain in which the concepts are being applied. (See Rottleuthner, supra note 7 at 98). Today the discussion of whether the use of biology by Luhmann is appropriate or not to understand social systems has been solved in the positive to some extent (See Niklas Luhmann, Social Systems (Stanford: Stanford University Press, 1995) at 34-35 [Luhmann, Social Systems]), although there will always remain those who remain unconvinced. (See, for instance, Rottleuthner, supra note 7 at 122-23), regarding the concrete application of biological terms to law, on the basis of Luhmann's theory). 8 From here on I will use the term "autonomy" instead of "autopoiesis," despite the fact that Luhmann and his followers utilize the latter extensively. The grounds for this preference are twofold. First, clarity— autopoiesis is a term not often used, and therefore, it might not convey a precise meaning to readers and might confuse them when properly grasping the true content of the term. The second ground is one of authority. The biologist that coined the term "autopoiesis," Francisco Varela, says that it applies only to living beings and that if it is going to be extrapolated to social spheres, the proper categorization is "autonomy." See in this regard, Francois Ost, "Between Order and Disorder: The Game of Law" in Teubner, Autopietic Law, supra note 7, 70 at 74. 9 Heinz von Foerster, "The Courious Behavior of Complex Systems: Lessons from Biology" in Harold A. Linstone & W.H. Clive Simmonds, eds., Futures Research: New Directions (Massachussets: 1977). 10 some branches of social science.10 But other than the claim by Luhmann, they have not linked the transformations to the systems themselves but to the external environment, as will be seen below.
This thesis links transformations in judicial bodies to those bodies themselves. Already,
Shapiro and Stone Sweet have pointed out that judicial bodies evolve, and in this sense it could be said that what this thesis endeavours to do is to take Shapiro and Stone Sweet's theory of the evolution of judicial bodies a step further by positing that judicial bodies have some control over their evolution. Particularly, Stone Sweet's theory predicts the emergence of a judicial body to cope with the evolution of the complexity of parties' conflicts. The theory claims that, by way of multiple decisions one after another, the judicial body transforms the legal structure that previously ruled the parties, which leads in the long run to significant changes to such structure and to results that could not have been predicted by the parties when they agreed on it. u
In a legal context, Shapiro and Stone Sweet claim that, once a third party dispute resolution system is established by parties, the "substantive applicable law" of disputes is changed by the third party system of resolution. However, they do not extend the argument to the substantive and procedural law whose application has consequences not only for the parties who invoked it, but also on the court adjudicating the case as an
See Eliana Herrera-Vega, Trafic de Drogues et Capitalisme. Un paradoxe contemporain (Paris: L'Harmattan, 2006). 11 See Alec Stone Sweet, "Judicialization and the Construction of Governance" [Stone Sweet, "Governance"] in Martin Shapiro & Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002) 55 at 72. 11 institution, and how some courts may transform themselves when interpreting this legislation.
Viewing courts as autonomous systems is useful, because it allows us to take an internal view of the operation of courts and to portray them in ways closer to what they really are: dynamic institutions and not static ones. Much is usually said about the dynamics of law and how not only law but also its interpretation is adjusted to respond to changes in society, but comparatively little is said regarding the interpreters of the law: the courts.
This approach may not be often used because of a misleading assumption about the fact that, if the interpreter is always the same court, the court does not change internally.
Resort to Luhmann's theories will permit this thesis to show the dynamic character of autonomous courts and to look at their internal process of operation.
Finally, it is important to note that this thesis will not attempt to analyze all aspects of
Luhmann's theory. First, this thesis will not try to demonstrate that all courts operate as systems as they are understood by Luhmann. However, this thesis will endeavour to show that some of the highest courts and, ultimately, the AB—those whose rulings may only be reversed by political decisions—do operate in a very similar way and sometimes virtually identical to Luhmann's autonomous systems.
Although it must be recognized that not only courts interpret law, but also legislatures and administrative agencies, for the purpose of this thesis the term "interpreter of law" refers only to courts. 12
Second, I will introduce some changes to the terminology used by Luhmann while maintaining fidelity to its meaning. The justification for this decision is that the theory reaches a very high level of abstraction and often illustrates the limitations of language to properly describe reality. The complexity of the theory might lead to the conclusion that it may not be useful in describing real-life issues, such as the operation of some judicial or quasi-judicial bodies. To quote U.S. Justice Story, "In the law the power of clear statement is everything,"1 and I will endeavour to give effect to this proposition for the purpose of this thesis.15
Third, the conceptualization of the term "autonomy" has been the object of numerous theories and definitions, which will be neither presented nor compared here.16 The concept of autonomy means autonomy to self-create, and in relation to some courts, it refers to their capacity to introduce self-transformations. Autonomy must not be understood here as synonymous with the term "judicial independence" for the purpose of this thesis, although it presupposes such independence. Whenever this thesis refers to autonomy, it is to
Luhmann's understanding of this term only.
However, when quoting Luhmann and his disciples, I will keep their terminology. 14 As quoted by William H. Rehnquist, The Supreme Court, new ed., (New York: Alfred A. Knopf, 2001) at 42 [Rehnquist, Supreme Court]. 15 This is far from saying that this should always be the case. As King and Thornhill explain concerning Luhmann's theory, it deals with contemporary high levels of complexity, so to demand simplifications of the description of this complexity might not be appropriate if one's intention is to offer a proper account of modern reality. See Michael King & Chris Thornhill, Niklas Luhmann's Theory of Politics and Law (New York: Palgrave MacMillan, 2003) at 1. 16 For two different views of the term "autonomy" applied to law, leading to distinct conclusions, see Richard Lempert, "The Autonomy of the Law: Two Visions Compared" in Teubner, Autopietic Law, supra note 7, 152. 13
However, despite the reliance of this thesis on some basic features of the theory of autonomous systems, it is important to say that this is not the only perspective utilized.
The analysis is also complemented by the use of other theories in different domains, such as political science, and particularly what has been called political jurisprudence, and the public choice theory of law and economics. The goal is to offer a persuasive account of how autonomous courts of national or international character, and ultimately the AB, operate and, mainly, how they possess autonomy to self-transform.
This chapter is divided into three parts. The first presents the basic characteristics of the operation of autonomous systems, mainly applying Luhmann's theoretical approach. The second part attempts to demonstrate whether the operation of some higher courts can be explained in terms of the basic features of autonomous systems. The third part presents the conclusions of the chapter.
1.1. The Basic Characteristics of Autonomous Systems
According to Luhmann, autonomous systems are characterized by the following attributes.
They possess an identity, carry out a process of self-observation, and function in a recursive way by which they always repeat their processes of operation and re-create their elements. Autonomous systems are open to their external environment in the sense that they do observe it, and they respond to their external milieu by a process of self- transformation. They control and determine when and how to self-transform. Autonomous 14 systems are co-evolutionary in the sense that they model the evolution of other external systems.
1.1.1. The Identity of Autonomous Systems
For Luhmann, contemporary society is dominated by functional differentiation, in the sense that it allocates specific functions to different spheres.17 On the basis of this reality, an autonomous system possesses an identity distinct from its external environment, which is preserved by the system itself throughout its process of permanent adjustment. The
1 & identity is determined by the specific functions a system has to perform.
Luhmann posits that there is a process of specialization among different autonomous systems, with each of them performing different functions, which in turn allow systems to operate and to distinguish themselves from their external environments. Autonomous systems operate by separating themselves from their external environment, thereby ensuring the preservation of their identity associated to the functions they carry out.19
According to Luhmann,
[Systems] constitute and maintain themselves by creating and maintaining a difference from their environment, and they use their boundaries to regulate this difference. ... In this sense, boundary maintenance is system maintenance.20
17 See Peter Beyer, "Introduction" in Niklas Lumann, Religious Dogmatics and the Evolution of Societies (New York: E. Mellen Pres, 1984) at xxiv. 18 See Hans-Georg Deggau, "The Communicative Autonomy of the Legal System" in Teubner, Autopietic Law, supra note 7, 128 at 136. 19 For a full discussion of the identity in Luhmann's theory, see Luhmann, Social Systems, supra note 7 at 442-43. 20 Ibid, at 17. 15
However, it is important to make clear that it is the system itself, not the external environment, that determines how it carries out its functions, though always in light of the external environment. In other words, although at a certain point in time a function is allocated to a system, subsequently it is for the system to decide how to perform such function. Commenting on Luhmann, Beyer says that "[s]ocial systems establish themselves with respect to their environment because they react to everything only in their own terms."21 It is through self-observation that systems materialize or define their identity by determining how to carry out their functions.
1.1.2. Self-Observation of Autonomous Systems
Autonomous systems perform a process of self-observation when they operate. For
Luhmann, self-observation "means both self-observation and observation of others." 22
The process of self-observation is carried out through self-differentiation. Autonomous systems distinguish themselves from the environment surrounding them and are able to separate their elements from those of other systems. Luhmann says that
[S]elf observation is first of all an aspect of processing one's own information processing. Beyond that, it makes self-description possible ...... systems by (their) own operation can devise a description of themselves and then observe themselves...... From the theory of the self-referential systems, it would seem to follow directly that the self-description of the system must interpret the system as difference from the environment...
Beyer, supra note 17 at xxv. 22 Niklas Luhmann, "The Unity of Law" in Teubner, Autopietic Law, supra note 7, 12 at 13 [Luhmann, "Unity"]. 23 See Deggau, supra note 18 at 130. 24 Luhmann, Social Systems, supra note 7 at 170. 16
Regarding the process of self-observation, Teuber argues that "I'auto observation est l'aptitude d'un systeme a operer dans les faites la jonction de ses elements, et a recapituler un enchaiment d'operations qui lui sont specifique.. ,."25
A concept key to the understanding of self-observation is that of "meaning." For Beyer:
Meaning is what gives form to social experience and action. Luhmann draws an analogy between the place of meaning in social systems and the place of DNA/DNA in organic systems. In this sense, meaning is a code for experience and action. It gives experience and action a structure in terms of which these can be recognized as experience and action .. .26
Meaning could be seen as the information a system gathers on the basis of its past experience. It is meaning—so understood—that allows systems to carry out selectivity when operating. The concept of selectivity plays a vital role when systems interact with their external environment.
Meaning is also related to another important concept associated with self-observation and identity: self-reference, defined in the following terms by Luhmann, according to Beyer:
Social systems are for Luhmann self-referential in all their structures ... Every operation within a social system refers to other operations within this system ...
The fundamental self-reference of the structure of social systems also allows these to build an identity .. .27
In other words, autonomous systems operate by constant reference to their past experience and actions, and on this basis, along with the observation of their present and of their
Gunter Teubner, Le droit: un systeme autopoietique, traduit de l'allemand par Gaby Maier et Nathalie Boucquey (Paris: Presses Universitaires de France, 1993) at 34 [Teubner, Le droit]. 26 Beyer, supra note 17 at xv. 27 Ibid, at xxv. 17 environment, as will be stated below, make their choices and determine how to carry out their functions.28
1.1.3. Recursivity: Circular Operation and Re-creation of Autonomous Systems
An autonomous system is one that is constantly capable of reproducing itself by the constant repetition of its processes of operation. Luhmann uses the term "recursivity," drawing from Humberto Maturana29 to explain this important feature of autonomous systems.30 Likewise, following Varela,31 Osts states that:
An autopoietic system32 can be defined as a machine organized as a network of processes for producing components which, by their continual interactions and transformations, increasingly regenerate the network of processes for producing components ....33
This permanent creation and re-creation of its elements has led Luhmann to speak of a creatio continua.
1.1.4. Autonomous Systems and Their External Environment
28 The concepts of meaning and self-reference will be embodied from now on within the general concept of self-observation. 29 Humberto R. Maturana & Francisco J. Varela, The Tree of Knowledge. The Biological Roots of Human Understanding (Boston: New Science Library, 1987). 30 Luhmann says, "An autopoietic system ... constitutes the elements of which it consists through the elements of which it consists..." Luhmann, "Unity", supra note 22 at 14. 31 Francisco Varela, Autonomie et connaissance : essai sur le vivant (Paris: Editions du Seuil, 1989). 32 As mentioned above, the terms "autopiesis" and "autonomy" are used as a synonyms in the thesis. 33 Ost, supra note 8 at 72. 34 See Luhmann, "Unity", supra note 22 at 21. 35 The philosophical term is "cognitive openness." See Luhmann, Social Systems, supra note 7 at Chapter 5. 18
Autonomous systems are not isolated from their external milieu. "They define themselves against the background of an environment that is a source of exogenous shocks."JO As
Luhmann says, "[T]he environment is ... a presupposition for the system's identity,
IT because identity is possible only by difference ..."
The process through which a system takes account of the external environment is described as distinguishing "order from noise." Systems perceive the external environment as "noise," observe it, and respond to it with what they consider to be the proper reply.38
The observation of the external environment by systems is closely associated to their internal operation. In effect, the internal complexity of systems is intimately related to the
on complexity of their environment, the complexity of which is not constant but varies. As
Beyer points out, "[T]he system sees its environment in terms of itself."40
It is through selectivity that systems manage to deal with the complexity of the external environment. Beyer explains how, according to Luhmann, systems use selectivity to reduce complexity:
[T]he environment is always more complex than the system: that is, there are always more possibilities in the environment than in the system. .. The strategies by which a system can use relatively few responses to compensate relatively many environmental inputs constitute the system's selectivity . The capacity for reducing complexity is the selectivity of the system.41
35 Ost, supra note 8 at 73. 37 Luhmann, Social Systems, supra note 7 at 145. 38 See Ost, supra note 8 at 81 and Luhmann, Social Systems, supra note 7 at 142. 39 See Beyer, supra note 17 at xix. 40 Ibid, at xix. 41 Ibid, at xiv. 19
For Beyer, the direct consequence of performance of selectivity for systems is that "their order is created by a selection from many possibilities."
1.1.5. Autonomous Systems' Capacity to Self-Transform43
Autonomous systems transform themselves, and this characteristic is of paramount relevance for the subsequent development of this thesis. Each determines by itself the degree and the timing of changes of the system. The transformation is produced internally by the system according to its own particular rules of functioning, following its own criteria, and on the basis of the information the system gets from the process of self- observation and observation of its surrounding milieu. Luhmann indicates in this regard that "[t]he meaning of the action [adopted by a system] may refer to the environment - for example one produces for the market - but the selection of the action is placed within the system itself, is steered by the system's own rules, and is answerable in ways that it would not be if it were an action of the environment.. ."44
Teubner suggests that:
L'auto organization designe la capacite d'edifier 'spontanement' des structures systemiques propres. Un ordre interieur ne peut pas etre defini de l'exterieur, il doit etre produit par voie interne, par l'interaction des composantes systemiques ...
Ibid, at xviii. 43 The sociological term is "operation closure." Luhmann says about it that "[c]losure consists in the fact that all operations (of autonomous systems) reproduce the system." Luhmann, "Unity", supra note 22 at 15. 44 Luhmann, Social Systems, supra note 7 at 180. 20
L'auto regulation est la variante dynamique de Vauto-organization. Quand un systeme est capable d'edifier et de conserver des structures propres, et un plus de les modifier en function de criteres propres, il est autoregule, conformement a la definition de la regulation comme modification des structures systemiques »45
The first direct feature of the power of self-transformation is that autonomous systems, not the environment, determine the transformations. In this regard, Luhmann points out that "a change in the program itself under pressure for the environment is likewise possible as long as the system does not in this search for optimum adaptation lose control over its transformations."46 Similarly, Teubner states that:
This conception of self-referential systems presupposes that systems do not seek the fixed points of their mode of operation in the environmental conditions, to which they adapt themselves as best as possible (as in the paradigm of social systems), but in themselves; more precisely in this self- description which, as an internal organization program, organizes the system processes in such a way that it corresponds to this self-description in its operation ... [Changes to autonomous systems] can then be only 'triggered off from outside, but no longer directly 'caused' [by the outside].
This is a fundamental difference with other traditional systems theories, for which social systems, as described by Teubner "could be changed, regulated and even determined by environmental influences. Flexibility and adaptability were necessary features of systems in order to conform to altered environmental conditions.. ,"48
45 Teubner, Le droit, supra note 25 at 35. This thesis will not utilize the terms "self-organization" and "self- regulation" used by Teubner in this quotation, because they can be grouped as expressions of the self- transformation power of systems, as understood by Luhmann. 46 As quoted by Ost, supra note 8 at 75. 47 Gunther Teubner, "Evolution of Autopoietic Law" in Teubner, Autopietic Law, supra note 7, 217 at 233 [Teubner, "Evolution"]. 48 Ibid, at 219. See also Teubner, Le droit, supra note 25 at 26. 21
Although it seems that, ultimately, traditional theories of social systems and the theory of the autonomous system reach the same result—that systems end up adjusting to environmental pressures—the difference lies in who makes the change. According to the former it is the environment, while according to the latter is the system itself. 49 The theory of autonomous systems dilutes the capacity of a powerful actor within traditional sociological theories, the environment, to impose social changes.50
This is not to say that the self-transformation power is unlimited, because such limits are set by systems on the basis of their interactions with the environment, which in fact constrains the range of possible transformations.
1.1.6. Co-evolution of Autonomous Systems
49 It is important to highlight that not all social systems operate in the same way regarding environmental pressures. Some might be completely dependant on them, so the environment imposes changes at will; while others, which are autonomous, are affected by the external milieu but have control to determine which changes must be made to respond to it. 50 Although it is important to recall that this thesis does not deal with the issue of law as an autonomous system, this does not prevent it from making the following practical application of the self-transformative character of the system of law. The fact that ultimately it is for the system, and not for the external environment, to introduce changes explains well why the adoption of new legislation sometimes does not produce meaningful results. The society may consider relevant such enactment but it is the system of law— which is not the same as a set of legislation—that determines whether or not it incorporates the changes, by the process of self-reference and self-description and the openness to the environment. Teubner illustrates this point by saying: While interventions of this kind do produce effects, it became increasingly clear that that these effects in the social system concerned were different from those which were expected: sometimes too slight, sometimes too strong, sometimes only effective for a short period, sometimes counterproductive and frequently somehow "swallowed" by the system. ... Guilty parties were quickly found: too much policy or too little policy, too much law or too little law, deficiencies in implementation and overreactions, the wrong instruments and processes which were no longer adequate - until finally the main guilty party remained; that is, traditional reform policy and traditional direct purpose-oriented intervention. It is perhaps not pure chance that a theoretical paradigm attracted increasing attention in this situation, at the center of which was the concept of self-organization ... The further development of this paradigm as far as the theory of autopoietic systems ... 22
According to Teubner, autonomous systems can interact with others, and as a result of this interaction, a co-evolution of systems takes place, in the sense that one system reacts to others, and as a result of this, it also models them. According to Teubner:
In this coevolution, processes of coordination between the different subsystems take place on the level of concrete processes of interaction, in which the requirements of the different subsystems collide with each other. If the problem of coordination become critical, this may be an occasion to deploy systems of interaction between the systems ... which drive on this coevolution purposefully...51
For instance, the interactions of social systems such as the state, the law, the economy, and even politics53 produce co-evolution, the influence of each is intertwined.
1.1.7. Summary
In summary, autonomous systems have a distinct identity and constantly reproduce their processes of operation guided by self-observation. Autonomous systems are open to the external environment and respond to the outside surroundings by self-transformation.
Although this process of self-transformation is not unrestricted, it takes place internally according to the systems' own rules of functioning, and it is steered by the systems.
Finally, as the external environment may model changes in autonomous systems and lead
Teubner, "Evolution", supra note 47 at 220. For a detailed analysis of this subject-matter, see Terence Daintith & Gunther Teubner, eds., Contract and Organization: Legal Analysis in the Light of Economic and Social Theory (Berlin: Walter de Gruyter, 1986). 51 Teubner, "Evolution", supra note 47 at 237. 52 For a complete description of the law as system see Niklas Luhmann, "The Self-Reproduction of Law and Its Limits" in Gunther Teubner, ed., Dilemmas of Law in the Welfare State (Berlin: Walter de Gruyter, 1986) 111. See also Teubner, Le droit, supra note 25. 23 to their evolution, these systems can also contribute to the evolution of others participating in the external environment.
It is important to mention that the above- mentioned description is a static view of autonomous systems, which is made for descriptive purposes only. In reality, autonomous systems operate dynamically and carry out all the above activities simultaneously, and therefore, actions that could be considered as self-observation might also be related to observation of the external environment or to the systems' identity. In other words, the operation of the autonomous systems is one in which all the above-mentioned criteria— which are in fact actions—are closely intertwined.
1.1.8 The Theoretical Context for Luhmann's Theory of Autonomous Systems
Having presented the basic features of the operation of autonomous systems, as understood by Luhmann and his disciples, it is important to provide some brief context regarding the place that his theory of systems has in modern sociology. The objective of this summary is to clarify what Luhmann's theory is and what it is not regarding three key elements wholly relevant for the purpose of this thesis: first, the permanent debate in sociology as to the place and importance of the individual and structure in society; second, today's emphasis on the relations between systems and environment; and third, the source of the creation or transformation of systems as residing in the systems themselves or in their external environment.
53 For a complete analysis of politics as an autonomous system, see Niklas Luhmann, Teoria Politica del Bienestar, 3th ed. trans, by Fernando Vallespin (Madrid: Alianza Editorial, 1993) at 53-59 [Luhmann, 24
As Giddens posits, there has been a classic sociological discussion about who is the most important element of society: individuals or structures. In depicting this debate, he says:
'Action' and 'structure' normally appear in both the sociological and philosophical literature as antinomies. Broadly speaking, it would be true to say that those schools of thought which have been preoccupied with action have paid little attention to, or have found no way of coping with, conceptions of structural explanation or social causation; they have also failed to relate action theory to problems of institutional transformation. ...
Functionalism and structuralism are alike in according a priority to the object over the subject or, in some sense, to structure over action. Functionalist authors have normally thought of this in terms of 'emergent properties' of the totality, which not only separate its characteristics from those of its individual members, but cause it to exert a dominant influence over their conduct.
Regarding this debate, it can be said that Luhmann is less concerned with the subject than with systems. Specifically, Luhmann claims that "[s]ocial systems are not composed of physic systems, let alone of bodily human beings ..."55 and argues that the definition of society as a set of human beings has historical roots and corresponds to a certain stage in the development of European society.56 Such definition was based on anthropology and does not correspond to late twentieth-century society. However, it is worth mentioning that the fact that Luhmann's theory has received significant attention does not mean that his views are the dominant ones in the interpretation of society. In effect, humanistic
Teoria]. 54 Anthony Giddens, Central Problems in Social Theory. Action, Structure and Contradiction in Social Analysis (Berkley: University of California Press, 1979) at 50. Luhmann, Social Systems, supra note 7 at 255. A cautionary note is important here regarding the compatibility between Luhmann's Theory of Systems and the political jurisprudence, which will be utilized below in Part 1.2 of this chapter. When the operation of courts is seen through the eyes of the former, some of its conclusions are shared by the latter. But this intersection does not mean that the theories are entirely compatible, since for Luhmann, as was seen, the individual has a very limited place within systems; while for the political jurisprudence, the individual judge alone or acting as a member of a group is the main focus of analysis. (See Martin Shapiro, "Political Jurisprudence" in Shapiro & Stone Sweet, supra note 11, 19 at 28-33 [Shapiro, "Jurisprudence"]). I will not delve into the reasons for the different viewpoint of each theory, since I will use only those areas in which both intersect. 25 approaches still have considerable influence, and they continue to be developed.
Paramount among them is Jurgen Habermas's theory of society aimed at ensuring the
en emancipation of human beings.
Another debate upon which sociological theories embarked was the distinction between systems and their environment. This distinction is central to Luhmann's theory as was seen, and he took it to a new level by extrapolating to sociology the notion of self-
CO observation developed in cybernetics and information theory. In effect, prior to
Luhmann the most important sociologist devoted to the study of social systems was
Talcott Parsons, for whom systems depended on the external environment and were like mechanical entities.59 Luhmann broke with this tradition. First, Luhmann no longer regarded the environment as a threat for systems and instead considered that there was interdependence between systems and their environment. Beyer so describes it: [For Luhmann] a system selectively processes input from the environment and responds by changing its state or attempting to influence the environment with selective outputs. The system then is a combination of process that maintains itself by maintaining a boundary between itself and the environment.. .60
56 See Beyer, supra note 17 at x. 57 See ibid, at xi. This is not to say that Habermas denies the existence of social systems, which he does not. On the differences between Luhmann and Habermas, see Eva Knodt, "Toward a Non-Foundationalist Epistemology: The Habermas/Luhmann Controversy Revisited" (1994) 61 New German Critique 77. 58 See Eva M. Knodt, "Foreword," in Luhmann, Social Systems, supra note 7 at xxi [Knodt, "Foreword"]. 59 See Jose Almaras, "Niklas Luhmann: La Teoria de los Sistemas Sociales antes de la Autopiesis" (1997) 173 Anthropos 62 at 69. 60 Beyer, supra note 17 at xiv. 26
And second, on the basis of Humberto Maturana and Francisco Varela's biological research, Luhmann posited that, by observation of the environment and by self- observation, social systems were able to recreate themselves.61
Finally, it is important to locate Luhmann's theory within the reality of the contemporary world. Few may be ready to contest the idea that complexity has considerably increased in the last century and that the speed of development of such complexity has exponentially grown with the development of information technologies that infuses more complexity to all segments of society. Luhmann's theory aims to be a tool to understand such complexity, and it seeks to do so by offering a highly detailed analytical framework that reduces such complexity by using selectivity.
Luhmann's theory is receiving an increasing amount of attention. It is being applied in the field of religion,62 communications,63 art,64 drug trafficking,65 theory of communication, and political science.66 In the legal domain, he developed his arguments regarding law as an autonomous system in Das Recht der Gesellschaft67 (The Law of Society), and the
61 For a detailed description of Luhmann's place in contemporary sociology, see Knodt, supra note 58 at xx- xxiv. 62 See Niklas Luhmann, Religious Dogmatics and the Evolution of Societies, trans, by Peter Beyer (New York: E. Mellen Press, 1984). 63 See Niklas Luhmann, The Reality of the Mass Media, trans, by Kathleen Cross (Stanford: Stanford University Press, 2000). 64 See Niklas Luhmann, Art as a Social System, trans, by Eva Knodt (Stanford: Stanford University Press, 2000). 65 See Herrera-Vega, supra note 10. 66 See for instance, Luhmann, Teoria, supra note 53, and Michael Keren, "Ideological Implications of the Use of Open Systems Theory in Political Science" (1979) 24 Behavioral Science 311. 67 Niklas Luhmann, Das Recht der Gesellschaft (Frankfurt: Suhrkamp Verlag, 1993). 27 theory has been applied in criminal law, human rights, and transnational law, among other legal fields.
1.2. The Operation of Some Judicial Bodies as Autonomous Systems71
It is worth highlighting that Luhmann did not specifically consider whether some courts could operate as autonomous systems, although he did analyze courts within law as a system. His extensive book The Law of Society, published in 1993 a few years before his death, does contain a chapter titled "The Place of Tribunals within the Legal System";72 however, nowhere is there an analysis that parallels the one that will be undertaken in this thesis, that is, that some courts that operate as autonomous systems can self-transform. For
Luhmann, the judicial system is a subsystem within a larger system, law. However, the categorization of the judicial system as such does not prevent us from describing the operation of some courts as similar to that of autonomous systems, because there are subsystems—law itself is part of a larger system, society—that are, for all purposes, autonomous systems. Thus Luhmann's categorization of subsystems may be understood to mean that an autonomous system may operate within a larger one, and not that subsystems may not be autonomous systems in themselves.
R. Dube & J.-F. Cauchie, "Enjeux autour de revolution du droit criminel moderne. Quand les variations de la peripheric defient l'autorite redondante du centre" (2007) 31 Deviance et Societe 465. 69 Gert Verschraegen, "Human Rights and Modern Society: A Sociological Analysis from the Perspective of Systems Theory" (2002) 29 Journal of Law and Modern Society 258. 70 Gunther Teubner, Global Law Without a State (Darmouth: Aldershot, 1997). 71 The purpose of this section is to inquire into whether some courts meet all the above-mentioned characteristics of the operation of autonomous systems from a general perspective. Particular analyses of specific courts will be provided in Chapters II and III. 28
Finally, the purpose of this thesis is not impaired by the fact that Luhmann did not attempt to describe the functioning of courts in terms of that of autonomous systems, because as
Luhmann himself stated:
[G]eneral systems theory does not fix the essential features to be found in all systems. Instead, it is formulated in the language of problems and their solutions and at the same time makes clear that there can be different, functionally equivalent solutions for specific problems.. .73
So, in this sense this thesis seeks to solve the problem of whether some courts and the
WTO AB can self-transform as autonomous systems do. In doing so, the thesis will make use of Luhmann's theory in a way that he did not deal with when he analyzed courts.
Some degree of novelty may lie in such an approach.
After this conceptualization, it is now time to assess whether some judicial or quasi- judicial bodies operate in a fashion similar to that of autonomous systems, or in other words, whether the theory of autonomous systems offers valuable insight in explaining the operation of some judicial bodies, be they domestic or international.74
72 See Niklas Luhmann, El Derecho de la Sociedad, trans, by Javier Torres Nafarrate (Mexico: Universidad Iberoamericana, 2002) at 383 [Luhmann, Derecho]. 73 Luhmann, Social Systems, supra note 7 at 15. 74 In order to try to resolve what some see as a difficulty of Luhmann's theory, some authors have tried to attempt a definition of an autonomous system that is consistent with the whole theory. One of these is provided by Helena Esposito who states: One should not depart from a pre-conception of what a system is, but to highlight the term exclusively in relation to the notion of openness. Then it is important to stress the existence of the notion of boundary, which allows us to distinguish the inside from the outside. This is the only relevant information required to use the term 'system'. Helena Esposito, L'Operazione di Osservazione. Costruttivismo e Teoria de Sistema Sociali (Milano: France Angeli, 1992) at 18 (author's translation). According to this definition, courts are a system, because there is a boundary that permits the making of the inside-outside distinction: this boundary is the jurisdiction of courts, since it allows them to determine what issues they have to deal with and which they do not. 29
It is not a difficult task to attribute to the operation of some of the highest courts the main characteristics of autonomous systems, as will be illustrated in detail in this part. Courts have an identity that distinguishes them from other public organs, defined by their jurisdiction and powers. Courts also perform a process of self-observation and observation of their external environment, namely, of the political branches of states, political parties, public opinion, and private interest groups. By having the power to interpret the legislation related to them and to the processes they have to comply with in order to dispose of their duties, some courts transform themselves in ways not envisaged by their creators, taking due account of the alternatives their external milieu offers. Courts also operate with recursivity in the sense that they reinterpret their own previous interpretations in an endless and circular process. Finally, courts are also evolutionary institutions, and such evolution may have effects on the external environment. All these elements will be the subject of analysis below.
1.2.1. The Definition of Courts for the Purpose of This Thesis
Before moving on to this analysis, it is convenient to define the type of courts this thesis will deal with. First, it is concerned with courts of last resort, namely, courts whose decisions are the last word on disputes. Second, this thesis will assess collegial courts, leaving aside courts in which decisions are taken by a single judge. The reasons for these first choices are several. First, this thesis is focused on the operation of autonomous courts, and the highest courts have a higher degree of autonomy to self-transform, 30 particularly, because their decisions are the final word on the case, and they are able to affect others' expectations more than lower courts. On the contrary, lower courts may have a lesser degree of autonomy to self-transform in the sense that they are constrained by the jurisprudence of courts of last resort. In fact, some authors have found that the relation between higher courts and appeal courts is one similar to principal-agent, in which
77 the latter must obey the former. There are other practical considerations that lead to a lower degree of autonomy for trial or intermediate appeal courts. Scott, for instance, indicates that members of intermediate appeal courts may be interested in being promoted to higher courts, and one way to do so is by keeping a low rate of reversal, which means a higher level of deference and respect to the decisions of courts of last resort.78
On the other hand, the reason for choosing collegial courts is basically that Luhmann's theories cannot be applied to single judge's courts. Indeed, this theory assigns individuals
Therefore, "single judge courts" made up of multiple judges who hear cases on their own are not considered here, because although these courts are composed of several judges, their rulings are determined by what each judge individually does. 7 The relations between higher courts and appellate courts have different nuances. Songer, Segal, and Cameron distinguish between congruence and responsiveness. The former is the degree with which appellate courts follow higher courts, and the latter is the degree with which appeal courts respond to changes in the higher courts' jurisprudence. See Donald Songer, Jeffrey A. Segal, & Charles M. Cameron, "The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions" (1994) 38 American Journal of Political Science 673 at 675. Studies in the United States have shown that the congruence and responsiveness of lower courts vary across courts, specific issues, and time and depend on the level of clarity of the U.S Supreme Court's policy. (See ibid, at 676). The level of autonomy is contingent upon the level of monitoring of appellate courts. Litigants are the best source of monitoring for higher courts, in the sense that litigants may appeal those appeal courts' decisions in which higher courts have not been followed. See ibid, at 690. 77 See ibid. 78 See Kevin M. Scott, "Understanding Judicial Hierarchy: Reversals and the Behaviour of Intermediate Appellate Judges" (2006) 40 Law & Soc'y Rev. 163 at 164. Although appeal courts must follow their higher courts' decisions, the fact that many appeal courts' rulings will not be appealed or will not have an appeal available means that, for practical purposes, at the end, appeal courts may have the final word on disputes and may have incentives to act autonomously regardless of the higher court's position in the case. See Walter F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964) at 24. 31 a very limited role in the operation of systems, as was mentioned above,79 because individuals are there to contribute to the operation of the system and not to carry out their particular views. This would not be the case regarding a single judge court. For the explanations of the operation of single judge courts, the attitudinal model developed by political scientists may be a more appropriate theory, according to which judges decide only on the basis of their own political, social, and economic attitudes. Thus, the judge's particular attitudes will be reflected in the way he or she will adjudicate a case where these attitudes have pertinence.80 It is clear that this may be the case of the single judge court.81
However, collegial courts have a different decision-making process in that the courts' decisions are taken by a majority, so an individual judge's policy preferences, in order to be incorporated in the courts' decisions, must be approved by fellow judges, which may force negotiations not only regarding the final outcome of the case, but also regarding its legal justification and about the external environment of the court and its potential reactions. The decision of the court is determined not by the will of any one of its members, but as a result of a collective exercise of the court according to its internal
See Luhmann, Social Systems, supra note 7 at 255. 80 See Thomas H. Hammond, Chris W. Bonneau, Reginal S. Sheehan, Strategic Behaviour and Public Policy on the U.S. Supreme Court (Stanford: Stanford University Press, 2005) at 9, 11. 81 For a psychological analysis of the discretion and restraints that a judge faces in deciding cases on the basis mainly of her attitudes and regardless of the content of the applicable law of the case, see Duncan Kennedy, "Freedom and Constraint in Private Adjudication" (1986) 36 J. Legal Educ. 518. 82 Further analysis of this issue will be provided below in Part 1.2.1.6.1.3.4 of this chapter. 32 decision-making process. Consequently, the role of an individual's will in collegial courts is considerably reduced.
This is not to say, though, that the role of individual judges in collegial courts is not significant. While in large bureaucratic entities, an individual may have a little influence on their operation, in some collegial courts the decisions are adopted by a reduced number of people, so their preferences, although not determinant of the collective decision, still affect the decision in a significant way. Rehnquist makes this point in the following way with regard to the U.S. Supreme Court:
The Court has always been different [from a typical branch of the government which its legions of civil-service employees]. It has never tried to assert itself through force of numbers. Many years ago Justice Brandeis was asked to explain why he thought people respected the Supreme Court, and his rather short answer was, 'Because we do our own work.' ... the individual justices still continue to do a great deal more of their 'own work' than do their counterparts in the other branches of the federal government.85
Jennings reveals that judges of the ICJ also do their own job. He said that "[ejvery judge has to do his own research." In consequence, it may be entirely possible to think of some collegial courts as operating as autonomous systems, while at the same time assigning their individual members a certain degree of importance in such operation. This is the
See for the U.S. Supreme Court, Hammond et al., supra note 80 at 13. It will be shown below in Part II.2.1.5.3.1 of Chapter II and Part III.3.5.3.1 of Chapter III how this is also the case with the ICJ and of the AB, respectively. 84 This explains, for instance, that sometimes the appointment of certain judges with the explicit aim of changing courts' jurisprudence in some regard does not produce the expected outcomes. For instance, it was expected that the arrival of a new U.S. Chief Justice to the Supreme Court after the death of John Marshall would imply a significant change. This change did not occur. The institution captured the member. See Robert McCloskey, The American Supreme Court. Revised by Sanford Levinson. 4d ed. (Chicago: University of Chicago Press, 2005) at 54. 85 Rehnquist, Supreme Court, supra note 14 at 231. 33 main reason explaining why this thesis claims that some courts operate as autonomous systems, but it does not argue that they are autonomous systems, as understood by
Luhmann.
Finally, it is worth mentioning that this thesis deals with autonomous courts, but it does so without asserting that all high, collegial courts possess this character in the sense that they can self-transform themselves and operate like autonomous systems. There may be the case that a court is by law independent from the government and the legislature, but it is not so in practice during a certain period of time. For example, if a president obtains enough support to enact new legislation ending the tenure of all members of the court, and he or she is given the capacity in law or in practical terms to replace them, it is more or less clear that the court is not independent of the government, and its autonomy to self- transform may be put into question. The same can be said if, for instance, members of highest courts may be punished financially by governments through reduction of their
on salaries, or if governments are in a position during their tenure in office to always appoint the majority of members of a given higher court, or if judges can be removed for
86 Robert Y. Jennings, "The Role of the International Court of Justice" (1997) 68 Brit. Y.B. Int'l L. 1 at 22 [Jennings, "Role"]. 87 The relations between independence and autonomy deserve clarification here. Lack of independence as normally understood implies lack of autonomy to self-transform, because any transformation decided for a court may be closely related to the will of those who in reality control the court and not to the will of its members. 88 This was the case in Ecuador in December 2004, when its President Lucio Gutierrez obtained the dismissal by Congress of all of the members of the Supreme Court and the Constitutional Court of this country, and appointed 31 new members. An international arbitration Tribunal appointed on the basis of a Bilateral Investment Treaty hinted that these courts could not be fully independent to deal with the given investor's claim before them. See Final Award in the Matter of an UNCITRAL ARBITRATION. London Court of International Arbitration. EnCana Corporation v. the Republic of Ecuador. February 3, 2006. at para. 198. (available at http://www.investirientclaims.com/oal .html). 9 A special provision preventing this risk from happening to Justices of the U.S. Supreme Court is provided in Article III of the U.S. Constitution. 34 their decisions. It is then possible to conceive of the existence of collegial, high courts that are virtually controlled by external actors. Such courts would not be autonomous, in the sense that they cannot transform themselves.91
Having said this, the challenge for this thesis is to analyze how the operation of some courts is similar to autonomous systems, in order to set the grounds to demonstrate how
Luhmann's theory can shed light on the functioning of the AB and how it illustrates that the AB possesses limited autonomy to transform itself and the WTO dispute settlement system.
1.2.2. The Identity of Courts
Courts, particularly some at the highest levels within the judicial hierarchy, have an identity determined first by the function that they perform. In general, the identity of courts has been a matter of debate for a long time. For legal formalists, the identity is defined by a strict subjection to the principle of separation of powers.92 U.S. Chief Justice
For instance, in the early stages of the U.S. Supreme Court, Congress attempted without success to impeach Justice Samuel Chase for his decisions in 1804. (See Rehnquist, Supreme Court, supra note 14 at 269). However, although the attempt failed in the U.S., it may be a risk for judges in other countries. How significant such a risk is forjudges might influence their decisions in particular cases of particular relevance for powerful political elites. 91 This is not to say that autonomy is a binary matter, that courts either have it or not. There are certainly different degrees of autonomy in which external actors have more or less leverage to influence courts' decisions. Without entering into a discussion of what degree of autonomy a court must possess to be considered as autonomous, for the purpose of this thesis, it deals only with those that have the autonomy to introduce their own transformations and with those in which external actors are unable to determine the direction of their rulings. 92 According to Kennedy, "Formalism ... is the theory that all questions of law can be resolved by deduction, that is, without resort to policy, except for questions arising under rules that explicitly require policy argument." Duncan Kennedy, A Critique of Adjudication (Cambridge: Harvard University Press, 1997) at 105 [Kennedy, Critique]. This is, however, one of the other recognized forms of formalism. According to Martin Stone, others are the abstract application of rules without regard for their sociological 35
John Marshall's statement is telling in this regard, despite the fact that Marshall himself was not precisely a formalist: "[C]ourts are the mere instruments of the law, and can will nothing." However, others regard courts as pure political agencies, since they adopt policy decisions, and finally, some see courts as political actors but who do not engage in politics in the same ways politicians do.94
The pure formalist account is a myth that few would adhere to in its entirety today. In fact, it has been attacked for more than a century.95 However, myths still influence reality96 and might become so entrenched in judges' minds that they may seek to set aside their ideologies completely when deciding certain cases in an effort to precisely act within the frame of the myth.
or historical contexts, and the assertion that law can be identified by seeking its sources without recourse to political or moral grounds. For a complete account of formalism, see Martin Stone, "Formalism" in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press: Oxford, 2002). For a historical operation of formalism in the United States, see Charles C. Goetsch, "The Future of Legal Formalism" (1980) 24 Am. J. Legal Hist. 221. 93 Osborn v. Bank, 9 Wheat. 738, 866 (1824), quoted by Charles A. Miller, The Supreme Court and the Uses of History (Cambridge: Harvard University Press, 1969) at 4. Apparently, WTO panels and the AB are strict appliers of WTO law, since Article 3.2 of the DSU establishes that "recommendations and rulings of the DSB [Dispute Settlement Body] cannot add to or diminish the rights and obligations of the covered agreements." WTO Legal Texts, supra note 4 at 355. In its report in India—Patent Protection for Pharmaceutical and Agricultural Chemical Products, the AB highlighted the importance of this provision by declaring that "(...) both panels and the Appellate Body must be guided by the rules of treaty interpretation set out in the Vienna Convention, and must not add to or diminish rights and obligations provided in the WTO Agreement." India—Patent Protection for Pharmaceutical and Agricultural Chemical Products (1997), WTO Doc. WT/DS50/AB/R at para. 46 (Appellate Body Report), online: WTO
The myth may also play a legitimatizing role for courts, in the sense that public opinion will more easily accept courts' rulings if it considers that the result was arrived at through an abstract and neutral assessment of legal norms.97 To this author, highest courts present their rulings according to the myth and can afford neither to embrace it fully nor to reject it entirely. They are political actors of a specific nature due to the policy impact of their decisions. However, courts do not generally operate like legislatures, where private interests are represented and expect that their elected politicians will attend to their needs and priorities. Certainly, no court could claim to be a legislature in this sense, with its members having to adjudicate cases on the basis of the prevailing views of some political, economic, or social interest only. On the other hand, the courts may—and indeed do— take decisions with significant policy consequences that go well beyond effects on parties to disputes. Such consequences give courts a quasi-legislative character, and this will be the meaning of this term throughout this thesis.
The rules that define courts' identity do not prevent courts from embarking on actions quite similar to those associated with the enactment of legislation, but they do so by means of rulings that have restrictions that formal legislation adopted by political bodies lack.100
See Murphy, supra note 78 at 15. 98 See for instance, Brown v Board of Education, 347 U.S. 483 (1954) [Brown], the U.S. Supreme Court ruling that started a process of integration of the United States' black community. Or the WTO Appellate Body ruling in United States—Import Prohibition of Certain Shrimp and Shrimp Products declaring that environmental concerns have a place within WTO law. See United States—Import Prohibition of Certain Shrimp and Shrimp Products (1998), Doc. WT/DS58/AB/R at para. 185 (Appellate Body Report), online: WTO
There are many other ways in which courts might be seen as acting as legislators and apparently failing to preserve their distinct identity. According to Dworkin, there are judicial decisions that are truly judicial and others that are "political"; he calls the first
"decisions of principle" and the second "decisions of policy." Decisions of principle are based on the past facts of the case only, while decisions of policy are forward looking, the same way that the legislatures act.101 For others, even forward-looking judicial decision making is still truly judicial. Bell maintains that
[I]t would be wrong to see the social function of adjudication only as setting disputes and vindicating rules of law in terms of past events. ... There may be a need to ensure that legal powers are being properly exercised and that the consequences, in terms of the rules developed and the situations created, are acceptable for society as a whole. Although such considerations may not be given their full force in adjudication institutions, as opposed to the legislature, they are not irrelevant.102
This is not to say that all courts have the same identity, because the functions they perform may vary. Some are entrusted with the duty to solve disputes only, as is the case with the
U.S. Supreme Court and the AB, while others have advisory roles in addition to being judicial adjudicators, such as the International Court of Justice. However, although autonomous courts have their functions established by legislation, they are the only ones in charge of determining how they perform such functions, and for this reason autonomous courts have a certain degree of discretion to fix their identity.
evidence and other limits. It provides more open access and wider input from those affected. It allows more general and comprehensive solutions as distinguished for piecemeal fixes or solutions affected by and limited to the peculiar facts of a given case. Rulemaking's explicit focus on policy, rather than logic and precedent, its prospective operation, and its relative ease of comprehensive change when a rule needs adjustment, all give rulemaking significant advantages over adjudication as a tool for changing policy... William R. Andersen, "Against Chevron—A Modest Proposal" (2004) 56 Admin. Law Rev. 957 at 962. 101 See Ronald Dworkin, Taking Rights Seriously (Cambridge: Cambridge University Press, 1978) at 106. 38
1.2.3. The Self-Observation of Courts
It was shown above in Part 1.1.2 of this chapter that autonomous systems observe themselves and other external actors, and through this process systems distinguish themselves from their external environment and design their identity. Whether in civil or in common law systems, some courts might be seen as engaging in self-observation when deciding the cases before them. Courts have institutional reputations to preserve or to enhance,104 and their rulings might reduce or increase these reputations.105 Courts also have limited resources to carry out their functions, so they could adopt decisions with, for instance, a close eye on how the decisions will affect the workload of the courts in the short, medium, or long run.106 Some courts also hold power, so they have to sense on
John Bell, "The Judge as Bureaucrat" in John Eekelaar & John Bell, eds., Oxford Essays in Jurisprudence. Third Series (Oxford: Clarendon Press, 1987) 33 at 50. See also Stone Sweet, "Governance", supra note 11 at 64, and Luhmann, Derecho, supra note 72 at 388. 103 Given that Part 1.2.5 below will display the courts' observation of their external environment, this section illustrates mostly the dimension of self-observation related to courts' assessments of the impact of decisions on themselves. 104 The public choice theory of law and economics might be of assistance by way of analogy regarding this point about courts' needs to guarantee or increase their institutional reputation. The theory focuses on the explanation of the goals of administrative bureaucracies and of legislators, and not of judges or courts, and posits that "various models of bureaucracy postulate that power, prestige, the size of a bureau's budget, job security .... enter the utility functions of bureaucrats." Nicholas Mercuro & Steven G. Medema, Economics and the Law: From Posner to Post-Modernism (Princeton: Princeton University Press, 1997) at 93. I understand the interest of the courts as not referring only to the selfish pursuit of an increasing reputation regardless of any other consideration, but also to the design of new features—in the terms described below—that allow courts to better carry out their functions for the benefit of those that come before them. 105 Courts may increase their reputation by going along with governments. For instance, Robert McCloskey regards that this has been mostly the case with the U.S. Supreme Court. (See McCloskey, supra note 84 at 30). Courts may also enhance their reputation by defying governments, as was the case of the AB with die recognition of the panels' rights to accept unsolicited amicus curiae briefs. A full discussion of this issue is provided below in Part III.3.5.4.1.1.3 of Chapter III. 106 The AB report in Mexico—Tax Measures on Soft Drinks and Other Beverages dealt with the potential increase of the WTO dispute settlement system's jurisdiction to adjudicate disputes arising from the Members' adoption of trade measures to force other Members' compliance with other international treaties. The ruling prevented this situation from happening and will be discussed in Part III.3.5.4.2.2.3 below. (See Mexico—Tax Measures on Soft Drinks and Other Beverages (2006), WTO Doc. WT/DS308/AB/R WTO (Appellate Body Report), online: WTO
1 OR its writ of certiorari. It can avoid those it does not want to adjudicate and set its agenda.
The Court has also developed the concept of mootness—a doctrine that allows the Court not to adjudicate controversies that for whatever reason have disappeared at the time of the ruling, rendering it useless109—and ripeness—a doctrine that allows the Court not to adjudicate disputes against the administration when the plaintiffs have not exhausted the remedies available, which prevents the Court from interfering with the normal functioning of the administration that has not yet formalized a definitive decision.110 1U The Court has also developed other doctrines aimed at avoiding conflicts with Congress or the
Executive, such as the political questions doctrine, by virtue of which certain issues may
Drinks AB Report]). The issue of the potential impact of a ruling on the workload of a court was discussed in the U.S. Supreme Court deliberations that led to the ruling in Brown {supra note 98). Rehnquist stated: "Even those who agreed with the result (of the case) were concerned about how the new rule would be implemented, and how much the Supreme Court could be involved in litigation concerning individual schools districts." Rehnquist, Supreme Court, supra note 14 at 197. However, some highest national courts may not necessarily be concerned about the increase of litigation engendered by one of their decisions if these courts still retain the control over their caseload or if any such increase will be handled by lower courts throughout the entire domestic judicial system. Courts may also decide to increase the access if they are able to control the workload produced by it through strict interpretation of other procedural norms. For instance, to some insiders, the Supreme Court of Mexico was interpreting its procedural legislation in ways that led to a considerable reduction of the court's number of cases before it. See Jeffrey K. Staton, "Constitutional Review and the Selective Promotion of Case Results" (2006) 50 American Journal of Political Science 98 at 108. 107 For the U.S. Supreme Court, see for instance, Murphy, supra note 78 at 19. 108 See Charles Gardner Geyh, When Courts & Congress Collide. The Struggle for Control of America's Judicial System (Ann Harbor: The University of Michigan Press, 2006) at 231. 109 See Doremus v. Board of Education, 342 U.S. 429 (1952) [Doremus] in which the U.S. Supreme Court refused to render an opinion regarding whether the reading of the Bible in schools was unconstitutional, because the claimant had already graduated at the time of the decision. However, the doctrine of mootness has its exceptions, and it is not applied to prevent the U.S. Court from rendering its decision in cases it regards as important. In Roe v. Wade (410. U.S. 113 (1973) [Roe]), the Court issued its landmark decision despite the fact that the pregnancy of the woman had terminated, on the ground that the issue was capable of repetition. For an analysis of mootness as an evading technique, see Louis Fisher, American Constitutional Law, 6d. ed. (Durham: Carolina Academic Press, 2005) at 96. 110 See, for instance, the U.S. Supreme Court decision in Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). 111 See Michael Kent Curtis, J. Wilson Parker, Davison M. Douglas & Paul Finkelman, Constitutional Law in Context, vol. 1 (Durham: Carolina Academic Press, 2001) at 451. 40 be found to be too political, such that it is for Congress, not for the Court, to deal with them, or the presumption of constitutionality of legislation.112
All these factors, among many others, imply self-observation by some courts, apart from the normal evaluation of the applicable law of the case.
1.2.4. The Recursive Operation of Courts
Autonomous systems, as was seen, are in a permanent process of creating and re-creating all their elements through the recursive repetition of all their internal processes. Similarly, some courts always engage in such a process by consistently interpreting and re interpreting their previous judgements. In this regard, it is useful to distinguish between two types of norms: substantive law and courts' procedural law. The recursivity dealt with here refers only to the autonomous courts' interpretation and re-interpretation of the procedural or substantial laws that pertain to or have an impact on the operation of the
112 U.S. Justice Felix Frankfurter provided a rationale for these doctrines: The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional questions. The policy reflected in numerous cases and over a long period was thus summarized in the oft-quoted statement of Mr. Justice Brandeis 'The Court [h]as developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. Poe v. Ullman, 367 U.S. 497, 502, 503 (1961). Neither the ICJ nor the AB has recognized the existence of a similar doctrine to the same extent as that of the U.S. Supreme Court. See below Part II.2.1.4.1 of Chapter II and Part III.3.4.2 of Chapter III. See generally Tim Koopmans, Courts and Political Institutions (Cambridge: Cambridge University Press, 2003) at 121. 113 This is not say that the courts' paramount criteria in deciding cases are the positive or negative institutional repercussions any particular ruling may provoke, but simply that the process of self-observation may play a role in adjudicating specific disputes. For concrete examples of self-observation by the International Court of Justice and the AB, see below Part II.2.1.2 of Chapter II and Part III.3.2 of Chapter III, respectively. 41 court. Examples of these norms are, among others, the provisions that establish the court's jurisdiction, the standing to sue, or those that define who can act as third parties in the proceedings. It is through this process of assessment and re-assessment of this type of law that courts create and re-create their internal processes.
Referring to the common law, Cardozo showed clearly the recursivity of the courts' operation. He said:
[T]hese fundamental conceptions once attained from the starting point from which are derived new consequences, which, at first tentative and groping, gain by reiteration a new permanence and certainty. In the end, they become accepted themselves as fundamental and axiomatic. So it is with the growth from precedent to precedent. The implications of a decision may in the beginning be equivocal. New cases by commentary and exposition extract the essence. At last there emerges a rule or principle which becomes a datum, a point of departure, from which new lines will be run, from which new courses will be measured. ...
Speaking about the judicial process in common-law systems, he also said:
[T]he rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule yields a result which is felt to be unjust, the rule is reconsidered. It might not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if the rule continues to work injustice, it will be eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examinated."
114 Benjamin N. Cardozo, The Nature of the Judicial Process 3d. reprint (New Haven: Yale University Press, 1971) at 48 [Cardozo, Judicial Process] [italics added]. From a similar analysis from the political jurisprudence perspective, see also Stone Sweet, "Governance", supra note 11 at 66. Luhmann's recursivity of systems, applied to courts, and Stone's self-reinforcing process of interpretation are virtually identical in explaining this real-life situation of adjudication. However, it is also important not to take this argument too far to argue that each new interpretation by a court of an applicable norm and its past understanding is in itself a new development. Recursivity is not permanent invention, because there are countless court decisions in which they simply reiterate previous interpretations without adding even the slightest novelty. 115 Cardozo, Judicial Process, supra note 114 at 23. 42
Cardozo refers here to common-law courts' interpretations of the entire body of law, but this passage also covers the process of the interpretation of any law, be it substantive or procedural, including those that have a bearing on the operation or structure of the courts.
These provisions are interpreted, and these interpretations are also subject to new assessments in order to properly set up the boundaries of courts' activities.116
Finally, as was seen in Part 1.1.3 of this chapter, for Luhmann, autonomous systems re create all their elements constantly. It is not possible to take this argument as it is and seek to apply it directly to courts, because it does not hold true. For instance, even the most autonomous court that one can conceive faces limits to its self-creation powers regarding substantive issues like the number of its members and their tenure, the process that must be followed to appoint them, and the authority designed by legislation vested with this power. These are matters critical to courts in which they have little or nothing to say. The processes of self-creation and self-recreation do not cover them. This is why, regarding courts, it is more illustrative to speak not of re-creation but of interpretation and re- interpretation of their procedural legislation and case-law.
This process applies both to common law and civil law highest courts because reliance on past cases is a common feature of courts in civil jurisdiction (See Robert Summers & MichelleTaruffo, "Interpretation and Comparative Analysis" in D. Neil MacCormick & Robert T. Summers, eds., Interpretating Statutes: A Comparative Study (Brookfield USA: Darmouth, 1991) 461). The process internally operates in a way according to which new interpretations are based on past ones, save in those cases that the common law system labels cases of "first impression," for which no previous precedent is available to the respective court. This manner of grounding new interpretations has a powerful legitimating effect and creates the perception that the court's determination could have been deduced before the dispute arose, so the law in general is seen as less indeterminate. (See Alec Stone Sweet, "Path Dependence, Precedent, and Judicial Power" in Shapiro & Stone Sweet, supra note 11, 112 at 124). This process is the same when the interpreted provision is one that specifically has an impact on courts. The fact that they justify their new interpretations of jurisdictional issues, access, burden of proof, participants, etc., on the grounds of previous cases leads to the impression that no transformation has taken place, when the fact is that it has, as will be seen below in Chapters II and III of this thesis. 43
1.2.5. Courts and their External Environments
Some courts are not isolated institutions. First, they operate on the basis of facts from the outside environment; they apply norms enacted by governments or legislatures; and they may find themselves adjudicating political, economic, or social controversies of the highest importance for particular interests or for the society as a whole.118 Autonomous courts are open to their surroundings, in the sense that the external social, political, or economic background might mould the courts' decisions.
It is an inescapable fact that courts' rulings produce real consequences in the real world.
Some courts take into account the future or past consequences of their rulings in performing their duties and have openly recognized this openness to the external political, economic, and social environment. For instance, the U.S. Supreme Court held in Weems v.
United States, as follows:
In particular, those courts vested with the power of judicial review of legislation have, as Shapiro rightly says, a "veto power over the action of the other (branches of government). So it has always been impossible to ignore their place in politics." Shapiro & Stone Sweet, supra note 11 at 4. U.S. President, Theodore Roosevelt bluntly made this point when he said that "[T]he President and Congress are all very well in their way. They can say what they think they think, but it rests with the Supreme Court to decide what they have really thought." (As quoted by Murphy, supra note 78 at 14). 118 Referring to the U.S. Supreme Court, Shapiro points out that "[S]ince the Court generally deals with the "trouble cases", it is typically called upon decide precisely those questions for which neither the existing body of law nor the other agencies of government have been able to provide a solution. In short it is asked to make social policy, and to do so it cannot depend on neutral principles but must look to its own assessments of the social and political interests involved and its own vision of the long-range goals of American society ..." Shapiro, "Jurisprudence", supra note 55 at 25. The same can be said regarding international adjudicators, such as the ICJ and the AB. Part 2 of Chapter II and Chapter III provide detailed evidence of this situation. 119 U.S. Justice William J. Brennan Jr. points out that "[0]ne does not forget how much may depend on the decision. More than the litigants may be affected. The course of vital social, economic, and political currents may be directed." William J. Brennan Jr, "The Constitution of the United States: Contemporary Ratification" in Sanford Levinson & Steven Mailloux, eds., Interpretating Law and Literature. A 44
Time works changes, brings into existence new conditions and purposes. ... In the application of a constitution, our contemplation cannot be only of what has 1 90 been, but of what may be.
Interpretation must account for the transformative purpose of the text. Our constitution was not intended to preserve a preexisting society but to make a new one, to put in place new principles that the prior political community had not sufficiently recognized ... 2l
Likewise, although without a comparable scope, the WTO AB held in Japan - Alcoholic
Beverages that "[W]TO rules are not so rigid or so inflexible as not to leave room for reasoned judgements in confronting the endless and ever-changing ebb and flow of real facts in real cases in the real world. They will serve the multilateral trading system best if
199 they are interpreted with that in mind ..."
As well, Robert Jennings, acting as President of the ICJ, expressed a similar view in its report to the U.N. General Assembly. He said:
[A] court must indeed apply legal rules and be seen clearly to be doing so, for otherwise it forfeits such authority as it has, for its authority arises not from the pronouncements of judges but from pronouncements of what the law is. Nevertheless, a good and useful court will not be ignorant of the political issues involved or of the political consequences of the decision it takes.12
Hermeneutic Reader (Evanson IL: Northwestern University Press, 1988) 13 at 14-15 [Brennan, "Constitution"]. 120 217 U. S. 349. As quoted by Brennan, "Constitution", supra note 119 at 18. 121 As quoted in ibid, at 17-18. 12:'Japan--Taxes on Alcoholic Beverages (1996), WTO Doc. WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R at 31 (Appellate Body Report), online: WTO
Some courts may also observe public opinion as part of their external surroundings. In revealing the scope of the important place that public opinion has on the U.S. Supreme
Court, the U.S. Chief Justice William Rehnquist said:
[W]e read newspapers and magazines, we watch news on television, we talk to our friends about current events. No honourable judge would ever cast his vote in a particular case because he thought the majority of the public wanted him to vote that way, but that is quite a different thing from saying that no judge is ever influenced by the great tides of public opinion that run in a country such as ours. Judges are influenced by them .. ,124
Having said this, this thesis will move from a general discussion of courts as autonomous systems to that of the specific source of their autonomy to self-transform, which constitutes one of the pillars of the thesis.
1.2.6. The Self-Transformative Autonomy of Courts
As autonomous systems, some courts are able to carry out a process of self- transformation. To display the ways in which this process operates, Luhmann says that
the meaning of the action [adopted by a system] may refer to the environment - for example one produces for the market - but the selection of the action is placed within the system itself, is steered by the system's own rules, and is answerable in ways that it would not be if it were an action of the environment...
Rehnquist, Supreme Court, supra note 14 at 192. Also, U.S. Justice Cardozo stated in this regard, "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by ..." (As quoted by Murphy, supra note 78 at 20). 125 This is one of the pillars of this thesis, and it will receive a considerable amount of attention compared to other features of autonomous systems. By the term "self-transformation" this thesis means courts' introduction to their institutions of features that were not contemplated by the creators of the courts, the adoption of institutional changes not desired by an external actor, and even the adoption of such changes when external actors strongly support them. 126 Luhmann, Social Systems, supra note 7 at 180. 46
From this passage it could be inferred that for a court to recreate or transform itself, it must satisfy three requirements:
(i) the court must have the means to adopt decisions related to itself;
(ii) the court must be in a position to select whether to self-transform or not, and if
so, what specific self-transformation to carry out;
(iii) the action that transforms the court is directed by the court through the
operation of its own rules of functioning; which allows the court to decide the
timing, extent, and justification of the self-transformation in light of its
external environment. In other words, for courts to be able to steer their self-
transformations, they must be in a position to determine the appropriate
moment, extent, and justification of the self-transformation at issue, through
the performance of their collective decision-making process.
At first glance, it might appear that courts could not transform themselves, because courts would fail to fulfil at least two of the requirements. First of all, courts only adjudicate disputes between parties. To this extent, courts, in principle, would not seem to be taking decisions about themselves. Second, even if courts were able to do so when deciding cases, courts would simply be applying the legislation related to the cases. In this way, the selection of any decision that had a direct or indirect institutional bearing on courts would be based on the legislation and not on the courts' own choice.
127 Recall that Luhmann uses the term re-creation to refer to autonomous systems, while I use the word "self- transformation" to refer to some courts. 47
While there are still some who see courts as immutable organs in this sense, undeniably, this is a very formal description of the operation of courts, and. The reality is different for those courts we consider here to be autonomous, in Luhmann's sense of the word.
Following him, some courts have the autonomy to self-transform because they satisfy the three above-mentioned requirements, as will be seen below.
1.2.6.1. Conditions for the Existence of A Court's Autonomy to Self-Transform
1.2.6.1.1. A Court's Capacity to Adopt Decisions Related to Itself
Some courts can transform themselves because, even though they generally adjudicate disputes between parties, they are empowered to adopt decisions that also have an impact on the courts as institutions. First, courts can transform themselves by interpreting broadly or narrowly the scope of their jurisdiction or by expanding or limiting the nature of conflicts that they are going to resolve. Decisions on jurisdiction may produce a different type of institution depending on the choices made by the courts themselves. 130
1281 distance myself partially from Stone Sweet on this point. He states that "rules organize how conflict is identified and understood." (See Stone Sweet, "Governance", supra note 11 at 61). From my perspective, once rules do so, it is for courts to interpret these rules and to decide how conflict is to be identified, or in other words, what conflicts courts will deal with and what they will refuse to deal with. This is a key power allowing autonomous courts to control their process of transformation. 129 More on this below in Part II.l.1.5.3.4 of Chapter II regarding the U.S. Supreme Court, in Part II.2.1.5.4.5 as to the ICJ, and in Part III.3.5.4.2 of Chapter III as to the AB.. 130 However, it is important to highlight that norms setting forth the procedures that courts must follow to resolve disputes are more likely to be the object of frequent litigation, because parties may argue every procedural claim available. Frequent litigation offers courts multiple opportunities to transform themselves by limiting or expanding their jurisdiction, by deciding who will intervene in disputes and to what extent participation will be accepted, and by specifying what the precise procedural rights of parties are, etc. In all these occasions, courts retain a certain latitude to transform themselves, and they retain the power to determine when and how to do so. 48
Second, courts may transform themselves by altering the degree of access they grant. They may also be in a position to determine who has and who has not standing to sue or to make claims, and who can act as a third party and in what circumstances, as well as many other substantial and procedural matters. These determinations may imply transformations, because a court to which few have access may have fewer opportunities to transform itself, because of the limited number of rulings it renders.133 On the contrary, a court that enjoys or grants broad access may take the multiple opportunities offered by the numerous cases before it to transform itself and will likely deal with a broader array of questions.
See, for instance, the AB report on European Communities—Regime for the Importation, Sale and Distribution of Bananas allowing Members that are not affected directly by the other Member's measure to bring a case before the Dispute Settlement System. See European Communities—Regime for the Importation, Sale and Distribution of Bananas (1997), WTO Doc. WT/DS27/AB/R at para. 132 (Appellate Body Report), online: WTO
But to say that a court renders decisions that can affect its own institution is not enough to make a court operate as an autonomous system. Luhmann posits that "the selection of the
(self-recreation) action is placed within the system itself." So, for a court to operate as an autonomous system, it must be in a position to select whether to self-transform or not, and if it chooses to self-transform, what specific self-transformation it will carry out.
1.2.6.1.2. The Existence of a Menu of Choices for Autonomous Courts to Self- Transform
When deciding how to respond to a party's claim in pursuit of her own particular interest, but one that also implies a transformation of the court, courts are often not confronted with a single and unique possible answer to the legal question posed by the party in question.
Typically, however, in order to dispose of a case, a court may have a menu of choices to select from to respond to any legal question, any of which can be grounded in the applicable legislation and in judicial interpretation thereof. The available choices define the extent of the self-transformation.
And by plausible choices of interpretation I mean that there are multiple interpretations that can be seen by the courts' audience as consistent with the existing law and jurisprudence. Not all possible interpretations of law are plausible. Even the Critical Legal
Studies Movement, with its assertion of a very broad freedom for courts to manipulate law and jurisprudence in order to attain their favourite outcome, recognizes that law constrains them in the sense that it is possible that they cannot find a convincing interpretation on
See supra text accompanying note 126. 50 which to ground their preferred result, and therefore, may be prevented from achieving it.
For instance, Duncan Kennedy states:
[T]he judge dislikes the outcome that the obvious interpretation of the rule would produce ... the judge tries as hard as she can to make some 'new' [meaning 'nonobvious'] law, but can't find a way to do it without violating the duty to the materials.
Luhmann's second requirement for the self-transformation of autonomous systems—also known as horizon of possibilities—appears then to exist regarding virtually all courts.
Several linguistic, legal, and political factors explain such existence of plausible alternatives and the court's flexibility to select one when deciding to self-transform or not and how it will do so. This thesis will explore them in detail below.
The first reason that courts may have a menu of options to choose from to self-transform is language indeterminacy. Since Wittgenstein137 it has been acknowledged that language cannot set in advance the precise boundaries of words, so law expressed in words is incapable of establishing in advance its exact limits. Indeed, Wittgenstein's work proves, among other conclusions, first, that the use of words is not a deductive process by which one initially creates general definitions of words and then applies them to specific
136 Kennedy, Critique, supra note 92 at 161. 137 See especially Ludwig Wittgenstein, Philosophical Investigations, trans by G.E.M. Anscombe (Oxford: Basil Blackwell, 1958). 138 This argument was also made by Hart in very similar terms: A legal rule forbids you to take a vehicle into the public park. Plainly this forbids an automobile, but what about bicycles, roller skates, toy automobiles? What about aeroplanes? Are these, as we say, called "vehicles" for the purpose of the rule or not? If we are to communicate which each other at all ... [and] behaviour be regulated by rules, then the general rule we use ... must have some standard instance in which no doubts are felt about its application. There must be a core of settled meaning, but there will be, as well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out. Herbert Lionel Hart, "Positivism and the Separation of Law and Morals" in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at 63. 51 new situations in a way that ensures finding the right meaning, and second, that one
1 ^Q cannot define concepts in a way that captures all possible future applications. Commenting on Wittgenstein, Anne Smith states:
[I]t is important to understand that Wittgenstein was attacking a particular theory of language - of meaning, intention, and understanding - which presupposed that all understanding is fundamentally a matter of interpreting and following given abstract rules, concepts or definitions, which we have learned and which one then interprets and applies to new contexts. According to this picture, when such rules are properly interpreted and applied, they uniquely determine the correct meaning, ascription, or outcome, in the new situation. This picture presumes that normal concept formation is a matter of grasping a particular rule, perhaps a verbal formula or definition, and that concepts application is a deductive mental process which involves interpreting and applying these rules to specific contexts. 140
However, Wittgenstein's belief about language does not hold that there is always confusion regarding meaning. Smith points out:
No matter how well defined our concept of redness or tableness may be, it will not be determinative of all possible cases. However, the fact that there may be doubt in such cases does not mean that that there is doubt in all cases. Indeed, it is because we do know what we should say in normal circumstances that we are able to identify doubtful cases as doubtful, say why they are doubtful, and reasonably consider and decide how we wish to treat such cases.141
139 Wittgenstein's theories of language have been applied to legal problems in many different, and even contradictory, ways. Some argue that language indeterminacy impedes the following of rules, so law is uncertain altogether; while others have adopted a less pessimistic posture and maintain that language indeterminacy prevents the existence of only one right answer to legal questions but still allows people to find ways to obey the law. The bibliography about Wittgenstein's implications on law is vast; however, a set of articles published in the McGill Law Journal presents in detail such different interpretations of Wittgenstein. See Brian Langille, "Revolution Without Foundation: The Grammar of Scepticism and Law" (1988) 33 McGill L.J. 451; Alan Hutchinson, "That's Just The Way It Is: Langille on Law" (1989) 34 McGill L.J. 145. 140 A. Smith, "Sceptical Fallacy" in Wittgenstein and Legal Theory (Oxford: Westview Press, 1992) at 166- 67. In the same sense, see H. Pitkin, Wittgenstein and Justice (Berkeley: University of California, 1992) at 61. 141 Smith, supra note 140 at 171. 52
Despite language indeterminacy, communication between individuals is possible due to the existence of specific contexts and of what Wittgenstein calls language games. Smith points out:
Meaning is custom, use. It consists in the way words function in what Wittgenstein called "language games", the infinitely various practices of usage we learn when we learn a language. The same word with identical mental images accompanying it, might occur in a wide variety of contexts, with very different meanings from context to context. It is the context, the function that language is performing, which makes these distinctions of meaning possible
Language is therefore irreducibly institutional, or communal. There could be no misunderstandings if there were not understandings, common accepted language practices. To use language is to engage in language games, the context and rules of which are established by a community which in Wittgenstein's terminology shares a "form of life". Moreover, language games are concrete and they are functional. They have a point. There could be no "meaning" which others could not understand, for there would be nothing in which such meaning could then 142 consist.
Smith concludes that, according to Wittgenstein, language indeterminacy by no means
implies that people can capriciously attach whatever meaning they like to words or
concepts:
[L]anguage is in important sense "contingent", for it depends upon the practices of an existing community, and there is no reason to presume that all or perhaps any of those are "necessary". However, it in no way supports the view that language is "up for grabs" and is, in this sense, "political". Language cannot, except in a very limited ... way, be a matter of individual choice The established community of understanding, which is not a matter of individual and personal choice ... is the very condition for those limited choices about language usage which we can make.143
In summary, Wittgenstein contests the belief that one is able to create concepts and
definitions that can predict their correct meaning in new situations. So, word definitions
Ibid, at 184. See also, Pitkin, supra note 140 at 73. Ibid, at 185. 53 are not capable of establishing their precise boundaries. Additionally, Wittgenstein maintains that meaning is custom and that meaning depends on language games and the relevant context.
Language indeterminacy affects legal certainty for the very reason that law is another vehicle of communication within societies.145 Thus, the existence of language uncertainty plus variable contexts leads to unpredictability in some cases regarding the right solution to a given legal problem. There might sometimes be many possible solutions—a menu of options—with none of them being inherently and in advance the right one.147
Wittgenstein's legal indeterminacy is quite clear in the case of open texts, namely, norms broadly worded whose precise content is left to courts to determine according to the evolution of the society to which they are applied. U.S Justice Holmes' well-known maxima, "General propositions do not decide concrete cases," (U.S. Supreme Court, Lochner v. New York, 198 U.S. 45, 76 (1905), Justice Holmes dissenting) and United States Justice Cardozo's motto, "A great principle of constitutional law is not susceptible of comprehensive statement in an adjective," (Justice Cardozo's statement in his separate opinion in Carter v. Carter Coal Co., 298 U.S. 238 (1936)) describe this situation and its potential consequence that legislation will have different meanings depending on the circumstances. 145 Legal indeterminacy is a concept many associate today with the Critical Legal Studies movement (CLS). Herget showed that the CLS is the heir of the Realist movement of the beginning of the twentieth century in the United States. However, the creator of the concept is the German scholar Oskar Bulow (1837), under the influence of the German Free Law Movement, and Rudolph von Jhering. Bulow contradicted the idea that judges were always applying the facts to a general norm. He denied that legislative intent could be ascertained and thus be valuable for interpreters. Bulow also stated that judges made law because abstract legislation cannot apply itself and also said that judges made law because of the inherent problems of the sources of law, in the sense that formal sources of law contradict themselves; for example, legislation goes one way and custom, another. According to Bulow, "[I]t is the duty of the judge to pick and chose among these various legal directions in arriving at a decision. The judges make the law." See James E. Herget, "Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy" (1995) 39 Am. J. Legal Hist. 59 at 69. 146 Timothy Endicott claims that law's precision may be undesirable in many fields, and that even if it is written precisely, it can produce unexpected results depending on the techniques used to interpret it. See Timothy Endicott, "Law is Necessarily Vague" (2001) 7 Legal Theory 379 at 381. 147 Herget defines the term legal indeterminacy as follows: (1) The formal legal authorities (legislation, precedent, custom, scholarly doctrine), do not bind the courts in their decisions, and the judicial power may even be exercised to contradict those authorities. (2) The authoritative sources themselves contain ambiguous and contradictory principles. (3) Law is consequently not fixed and objective, but indeterminate and subjective. ... (4) To explain the judicial process it is necessary to go outside the authoritative sources to other social phenomena. Herget, supra note 145 at 60. 54
The second source of the existence of options at the disposal of courts to resolve legal questions is due to a legislature's inability to envisage all of the potential factual situations to which the legislation may be applied. More than two centuries ago, Portalis made the following clear and poetic introductory speech when he presented the draft of the French
Civil Code regarding the incompleteness of any legislation:
Un code, quelque complet qu'il puisse paraitre, n'est pas plus tot acheve que mille questions inattendues viennent s'offrir au magistrat. Car les lois, une fois redigees, demeurent telles q'elles ont ete ecrites. Les hommes, au contraire, ne 149
se reposent j amais.
Courts then have the power to interpret the legislature's silences. They may interpret silences concerning procedural or substantial issues related to themselves as prohibitions to carry out future innovations. Alternatively, courts may see silence as tacit permission to introduce certain changes, thereby self-transforming.150
Third, the existence of different interpretative options for courts may also be associated with diverse methods of interpretation of the applicable norms. A strict textual
On the whole, the impossibility of irrefutable right answers in adjudication is another expression of the uncertainty associated with the evolution of science during the twentieth century, and in particular with. Albert Einstein's theory of relativity, which had a deep impact on social sciences too. The Spanish philosopher Jose Ortega y Gasset defined the theory of relativity as "la maravillosa justification de todos los puntos de vista" (the marvelous validity of all viewpoints). (Jose Ortega y Gasset, Sentido Historico de la Teoria de Einstein (1947), as quoted in Sobre la Teoria de la Relatividad. Albert Einstein (Madrid: SARPE, 1986) at 7). Recent research in physics has led another Nobel Prize winner, Ilya Prigonine, to argue that uncertainty is the central reality of the universe. (See Immanuel Wallerstein, La decadencia del poder estadounidense Mexico: Editores Independientes, 2005) at 47. The original title in English is The Decline of American Power (New York: The New Press, 2003). If uncertainty is today the goddess of the hard sciences, how could the situation be different in law and adjudication? 148 Regarding the so-called impossibility of the U.S. Founding Fathers to envisage the type of situations the United States would face after the enactment of the U.S. Constitution, see William F. Swindler, Court and Constitution in the 20th Century. The Old Legality, 1889-1932, vol 1. (New York: The Bobbs-Merrill Company Inc, 1969) at 25. 149 As quoted by Koopmans, supra note 112 at 224. 150 More on this in Chapter II below. 55 interpretation may provide one result; an interpretation of the text in light of other provisions of the legislation may provide another choice. An additional one may present itself if the provision is seen in light of the purpose of the legislation or in light of the intention of the legislature; and another choice may appear when the text is seen from the point of view of the consequences that a ruling adopting it may provoke.151 152 The relative legitimacy of each interpretation may vary from one court to the next. For instance, the
European Court of Justice is seen as favouring a method of interpretation guided by the purpose of the treaties of the European Union;153 the same can be said of the European
Court of Human Rights.154 By contrast, the WTO AB has leaned towards an interpretative method closely following the text to the WTO agreements and disfavours interpretations guided mainly by the object and purpose of the WTO agreements.155 The AB has also been cautious in its use of the historical method of interpretation based on the negotiating history of the covered agreements,1 6 an approach that received considerable more
To be sure, it is also possible that some of these perspectives combined lead to one single interpretation, or that one can be grounded on all of them. 152 But these legal interpretative techniques are not the only ones able to legitimize an interpretation. The Chicago school of the law & economics movement promotes those interpretations that lead to more efficient allocation of resources, without claiming that efficiency must be the only criteria. Posner points out that "there is a broad area of law in which judges can properly bring economics to bear on law, but they cannot make it the sole guide to their job...". (Richard Posner, Law and Literature. A Misunderstood Relation (Cambridge: Cambridge University Press, 1990) at 314). And other schools argue that the source of legitimacy may lie in increasing the well-being of the greater number of people. Therefore, the legitimacy of each potential interpretation may depend on the tradition of each court. 153 See Paul Craig & Graine de Burca, EU Law. Text, Cases, and Materials (Oxford: Oxford University Press, 2003) at 98. 154 See Bruno Simma, "How Distinctive Are Treaties Protecting Collective Interests? The Case of Human Rights Treaties" in Vera Gowlland-Debbas, ed., Multilateral Treaty-Making (The Hague: Martinus Nijhoff Publishers, 2000) 83 at 84. 155 See Donald McRae, "Treaty interpretation and the development of international trade law by the WTO Appellate Body" in Giorgio Sacerdoti, Alan Yanovich & Jan Bohanes, eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 360 at 363. [McRae, "Treaty Interpretation"]. 156 James Bacchus, former founding member of the AB pointed out: Some have suggested that the negotiating history of the WTO treaty would be a useful; source for the Appellate Body in determining the meaning of the text of the treaty when addressing legal issues raised on appeal in WTO dispute settlement. And, in some cases, it 56 currency during the GATT era. But the prevalence of a certain method of interpretation within a specific court does not rule out the flexibility to select one from a set of plausible alternatives. The textual meaning does not always provide a clear answer, and several interpretations may exist depending on whether the given provision is interpreted in isolation or in the context of other provisions, the contextual interpretation eventually providing other alternatives, depending on the specific contextual provisions used in the interpretive process. Finally, the interpretation of provisions in light of the object and purpose of the legislation may offer another set of alternatives, because it is normally the case that legislation attempts to achieve multiple objectives that may not always be compatible each other and which eventually may even be contradictory under certain circumstances, leading to opposite interpretations. In sum, the existence of various methods of interpretation of legislation that may be relevant in a particular case offers some courts a set of different plausible alternatives to select from when deciding a case, including those in which a party to the dispute has raised a point that has a direct bearing on the court as an institution. Judge Read of the International Court of Justice openly recognized this situation when he said in his dissenting opinion in the Peace Treaties case
(I.C.J., 1950, 240).
The problem of interpretation with which the Court is confronted is a choice between two possible constructions, neither of which does violence to the language of the Treaty and both of which are based upon inferences drawn from the expressions actually used in the text.
would. But our experience thus far in WTO dispute settlement teaches us that there is very little preparatory work that can rightly be described as 'negotiating history' of the Uruguay Round agreements for the purpose of resolving trade disputes. James Bacchus, "Appellators: The Quest for the Meaning of And/Or" (2005) 4 World Trade Review 495 at 506 [Bacchus, "Appellators"]. 157 See Robert Howse, "Adjudicative Legitimacy and Treaty Interpretation in International Trade Law. The Early Years" in J.H.H. Weiler, ed., The EU, the WTO, and the NAFTA. Towards a Common Law of International Trade? (Oxford: Oxford University Press, 2000) 35 at 57 for an analysis of the interpretative method of GATT texts. 57
In these circumstances, it seems to be clear that the Court is not precluded from adopting either of the foregoing interpretations. ...
The possibility of making a selection regarding possible outcomes has a third source associated with the recursive operations of some courts.159 By virtue of it, present members of some courts have also to interpret what their fellow colleagues decided in the past, before adjudicating actual disputes. In discussing the two previous factors, I was referring to the courts' interpretation of the applicable legislation of the case. Here I deal in essence with the interpretation by courts of their own previous jurisprudence regarding such legislation and the additional flexibility such interpretation offers to courts.
New judges in a court may find problems in sensing the real purposes of certain obscure arguments in rulings their predecessors made and extract from their actual assessment different options in their adjudication of new issues related to procedural or substantive matters of the court. Or in other words, the interpretation of legislation by a court can vary depending on whether it is seen in light of a certain line of previous decisions or in light of others, and each possibility may lead to a different outcome in terms of the self- transformation of the court and its extent.
But in addition to factors associated with linguistic indeterminacy, legal incompleteness, and the recursive operation of courts, political scientists have found another source that reinforces the existence of a "menu of plausible options" at the disposal of courts to
As quoted by G. G. Fitzmaurice, "The Law and Procedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points" (1951) Brit. Y.B. Int'l L lat 20. 58 adjudicate cases generally. Speaking of the U.S. Supreme Court, Murphy points out that
"other factors may force the Court into a policy-making role. Over a period of years
Congress may enact several pieces of legislation which embody contradictory public policies without repealing earlier statutes.. ."160 Such inconsistent behaviour by legislators, which is a common feature of the rule-making process in many national and international jurisdictions, may leave some courts with room to interpret in different ways the final scope of their legislation.
More generally, some political scientists, who see courts as important political actors that put in place policies, have no trouble with the recognition of courts' alternative choices to decide cases. In effect, Hammond, Bonneau, and Sheehan make the following observation referring to the U.S. Supreme Court:
[I]f the Court's primary concern is in establishing some general legal policy (by using a particular case as its vehicle), then the Court's decision-making agenda should be seen as endogenously determined, at least to some degree. That is, the Court should be seen as determining for itself what the available set of options will be on the final vote. The reason for this is clear, when establishing some general legal policy, the justices do not want to constrain themselves to just the ruling of the lower court and the associated evidence and arguments from that case; instead the justices will feel free to consider a wide variety of previous cases, rulings, and arguments. ... 61
In sum, for legal, political, and operational reasons, courts may choose from a menu of interpretative approaches, which constitutes a pre-condition for the existence of the autonomy to self-transform. In many circumstances, interpretation is, ultimately, at the discretion of the courts,. This allows them a certain flexibility to decide when, how, and to
See above Parts 1.1.3 and 1.2.4 for a discussion of the circularity of autonomous systems and of the recursive operation of courts. 160 Murphy, supra note 78 at 15. 59 what extent to transform themselves. Referring to the general process of interpretation, but wholly applicable to the particular interpretation by some courts of legislation that have a bearing on them, MacCormick confirms this view when he says that "resolving the ambiguity in effect involves choosing different rival versions of the rule ... once that choice is made, a simple deductive justification of a particular decision follows. ..."162
As a partial conclusion regarding how the existence of a multiplicity of interpretations may contribute to the autonomy of a court to transform itself, one may say that the existence of multiple plausible interpretations as to a specific issue that has a direct effect on a court as an institution implies that the court is in the position to select which of these different interpretations will be included in a given ruling. To this extent, some courts may satisfy the second requirement set forth by Luhmann regarding the self-creation of autonomous systems, namely, that "the selection of the (self-recreation) action is placed within the system itself."163
But the satisfaction of the two above-mentioned requirements is still not enough to allow the conclusion that a court is self-transforming, if an external actor is able to impose on the court or to prevent it from engaging in any transformation not in accordance with the terms desired by such external actor. In these circumstances, a court may have the flexibility to interpret its laws in the abstract, but in practice it is an external actor, such as a legislative body, the executive, or a powerful private interest, who is materially making the decision for the court, even though such decision is formally rendered by the latter.
161 Hammond et al, supra note 80 at 16. 162 Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press 1989) at 67-68. 60
This is why it is important to ascertain what is steering the transformation. Courts do so when they are able to select the opportunity, sphere, and justification of the self- transformation in question through the operation of their internal collegial decision making process, which constitutes Luhmann's third requirement for the existence of courts' autonomy to self-transform.
1.2.6.1.3. Courts' Ability to Steer Their Self-Transformations by Determining Their Timing, Extent, and Justification
It could be said that some courts steer their self-transformation when they are able to determine the timing, scope, and rationale of any new institutional feature of courts through the operation of the collegial rules of their internal operation.164
To demonstrate that courts steer their self-transformations by selecting their timing, extent, and justification through the operation of the courts' collegial decision-making process, this section will proceed as follows. First, it will offer a general account of the collective decision-making process on the basis of the theory of public choice school of law and economics by presenting the costs associated with the operation of the process due to the bargaining that takes place among members of collective institutions. Second, the section will illustrate how this general description of the costs of the operation of collective bodies can also be applied to collegial courts. Third, the thesis will go further
163 See supra text accompanying note 126. 164 Certainly, courts that operate autonomously will take into account the external environment when adopting a decision to self-transform, which is very different from saying that their decisions whether or not to adopt a self-transformation are determined by this environment. 61 and describe with much more detail the steps of the collegial decision-making process and the strategies open to members of courts of last resort, on the basis of an analysis of the
U.S. Supreme Court developed by political scientists. Fourth, this section will finish the account of the decision-making process of collegial courts by providing a description of what judges on collegial courts bargain about prior to deciding a self-transformation or any other legal question. To present this description, the thesis will make use of discourse analysis in order to show that any collegial courts' ruling is part of an ongoing communicative process with external actors, which forces judges not only to bargain internally about how to decide the particular case and its justification, but also about the external actors positively or negatively affected by the decision, their power, past behaviour in relation to the court, and potential reactions to the ruling in the case at hand.
Once the description of the collegial decision-making process is complete, the thesis will attempt to demonstrate why its operation allows some courts to direct their process of self- transformation by permitting them to select the timing, extent, and justification of their self-transformations. Finally, this whole Section 1.2.6 will end with a discussion of the main constraints on the self-transformative autonomy of collegial courts of last resort: namely, the external environment; the opposition to self-transformation that may come from within as a result of the reluctance of some of members of collegial courts to adopt a decision of this nature; the self-observation of some courts in the sense that they may not adopt a self-transformation that may put the performance of their obligations at risk by consuming large proportions of their resources; and finally, the fact that courts cannot act 62 on their own motion, which prevents them from setting in advance a course of self- transformations.
1.2.1.6.1.3.1 Public Choice Theory's Description of Collective Decision Making
To understand how some collegial courts determine the timing, scope, and justification of their self-transformations through the operation of their internal decision-making process, an analysis of the nature of such process is required. In order to do so, the thesis will first make use of the public choice theory of law and economics. Buchanan and Tullock have looked in detail at the democratic decision-making process, and their analysis can be applied to collegial bodies like courts, which adopt decisions by some type of majority.165
Buchanan and Tullock's analysis is based on the following general premises. First, the decision-making process has costs for the individuals that participate in it. These costs are of two types: external and internal. External costs are defined as those that the collective entity can impose on any given member of the group, who opposes the decision but has to accept it. This type of cost decreases as the proportion of members required to adopt the decision is increased, and it is zero when the rule is unanimity, because any member can prevent the decision from taking place and can use this power in order not to bear any external cost.1 Internal costs are defined as those which members of the group incur in
165 See James M. Buchanan & Gordon Tullock, The Calculus of Consent. Logical Foundations of Constitutional Democracy, 2d ed., (Ann Arbor: University of Michigan Press, 1967). 166 See ibid, at 64. Specifically, they state that [A]n external cost may be said to be imposed on an individual when his net worth is reduced by the behavior of another individual or group. ... The damaged individual has no recourse; he can neither prevent the action from occurring nor can he claim compensation after it has occurred ... 63 order to adopt a collective decision. Buchanan and Tullock state that "the rational individual will ... recognize that time and effort will be required on his part to participate in all such decisions and that that these costs will mount as the share of the group required for decisive action is increased."
Once Buchanan and Tullock define the costs of the decision-making process in collective groups, they show that specific rules to adopt decisions have different costs. Unanimity has the largest internal costs, because of the efforts and bargaining to convince all the members and to assure them that they will not face external costs. The existence of these costs means that groups operate differently depending on the majority rule they embrace to adopt decisions. Single majority rules have fewer costs than qualified majority rules, and these even less than unanimity, meaning that the bargaining between members of collective groups is less complex and intense for a single majority than for a qualified majority, and the bargaining process to achieve the latter is also less complex than the one to obtain unanimity.
A second important facet of the analysis of Buchanan and Tullock is the recognition of different preferences within the members of the group, meaning that decisions have a different degree of importance among the members. For some, a particular determination may involve significant relevance, while for others this may not be the case.169 These authors reject the assumption that preferences are the same for all members of a group.
Ibid, at 71. 167 Ibid, at 75. 168 See ibid, at 90. 169 See ibid, at 125. 64
They say that "intuitively the assumption of equal intensity of preferences seems unacceptable. Clearly the more general assumption is that individual 'tastes' for collectively obtained 'goods' vary in both subject and intensity..." This is certainly the case with legislatures. Despite the fact that, normatively, they must pursue the common good of their societies, in reality their members represent specific interests of varied sorts.171
This analysis of collective decision-making can be applied to autonomous courts, with some nuances, as will be seen below.
1.2.1.6.1.3.2. The Costs of Collective Decision-Making in Collegial Courts
The decision-making process of collegial courts, although it has some differences from the collective process depicted by Buchanan and Tullock, can be described in their terms. A collegial decision-making process has costs for the members of the courts, although the external costs differ to a certain extent. Judges in minority coalitions do not suffer economic costs associated with being in a minority coalition, for the obvious reason that
110 they do not have interests at stake in the outcome of disputes they adjudicate. The
™ Ibid, at 126. 171 See ibid. 172 It is plain that, according to basic rules of neutrality adopted by virtually all courts, national and international, if a judge has an interest in the conflict, she is under the duty to disclose the interest and declare herself unable to participate in the decision. See Article 17 of the Statute of the International Court of Justice, Article 17.3 of the DSU and Article 2.2 of the Working Procedures of Appellate Procedure for the conflict of interest rule in these judicial bodies. 65 external cost these judges bear is non-economic, and it is associated with the fact that a decision that does not correspond to their preference has been taken by the court.17
The internal costs of the decision-making process in collegial courts are conceptually the same as those defined by Buchanan and Tullock. Indeed, collegial courts have to decide according to a certain majority, and it takes time and effort by their members to seek and achieve a given majority that will allow the court to adopt its decision in a particular dispute.
Having established the costs of the collective decision-making process of collegial courts, it is important to describe how such a process takes place, as a preliminary step in order to show how some courts may steer their self-transformations by selecting the timing, scope, and rationale of them, through the operation of their internal rules of collegial decision making.
1.2.1.6.1.3.3. General Description of the Operation of the Decision-Making Process in Collegial Courts
The operation of a collective decision-making process in collegial courts will be assumed here to be similar to that described by Maltzman, Spriggs, and Wahlbeck regarding the
U.S. Supreme Court. This specific process will be fully presented in Chapter II;174 however, this thesis will rely on these authors' work to provide a general description that
173 This is not to say that courts do not have stakes in certain decisions. For instance, decisions regarding jurisdiction do involve the particular interest of the given court. 174 This thesis will test in Chapters II and III to what extent the collective decision-making model described by Matzman et. al. (see infra note 180) operates in practice for the ICJ and the AB. 66 can be applied to any collegial court in which dissenting and concurring opinions are permitted. The bargaining process in collegial courts implies that the judges' positions are determined in part by those of their fellows and are not fixed but, on the contrary, evolve during the successive phases of bargaining. The tools judges have to bargain with are their votes, which can be to support the decision, to concur in a separate opinion, or to dissent and write a dissenting opinion, and the process may be full of tactics and threats, depending on the particular court and the people involved. The significance of the threat is that, in courts where concurring and dissenting opinions are allowed, the value of the decision may be impaired by the division in the court, which has a majority opinion and a minority opinion. In such a case, the conclusion and the justification of the decision may be contested, opening the door to a potential strategic behaviour by the affected external actors aimed at not fully complying with the given decision. In fact, depending on the size of the majority and of the minority, the whole decision may offer opportunities for strategic interpretations by public or private external actors, undesired by the majority of the court, which can impair compliance with the decision in similar situations, undermine the rationale for the decision, and ultimately affect the court's power to alter external actors' behaviour.177
The bargaining process may be seen from two different perspectives: that of the judge or judges who are in charge of writing the ruling and that of the other judges. The former
175 The analysis of the judicial decision-making process will be a detailed presentation regarding the U.S. Supreme Court, the International Court of Justice, and the WTO AB. For the moment, it is important to exclude the European Court of Justice, given that its law does not permit concurring or dissenting opinions. 176 The authors of concurring or dissenting opinions may be disclosed, as in the case of the United States Supreme Court, or have to remain undisclosed, as in the case of WTO panels and the AB. See Articles 14.3 and 17.11 of the DSU. 177 See below Part 1.2.1.6.1.3.4 of this chapter for further discussion of this topic. 67 seeks to write a draft of the ruling that will gather majority support, so she has to accommodate her fellows' main concerns or legal comments or criticisms to a certain extent within the draft in order to obtain their support. The judge's decision about what comments to incorporate and to what extent depends on her calculation about how each of the other judges will respond, based on her understanding of their positions regarding the issue, and on how these positions are reflected in the draft. The process is a dynamic one in which changes to the draft are negotiated between the writer and the other judges.
From the other judges' viewpoint, the bargaining process is aimed at deciding whether, ultimately, they will be in the majority or in the minority and at ensuring that their views are incorporated in the rulings as closely as possible. These judges may engage in tactics and threats in order to achieve these goals. Their threats may be to announce that a concurring or a dissenting opinion will be appended to the ruling or, in effect, to circulate a draft of a separate or dissenting opinion. The writer, for her part, may also respond to these threats by attempting to rewrite her draft in a way that satisfies the judges who have announced a concurring or dissenting opinion or handed out a draft of any of this sort.
Judges of collegial courts are expected to have different preferences and varying intensities in their preferences, as Buchanan and Tullock generally posit, so, in reality, for each judge not every single case before the court has the same importance. The
importance of cases may depend on external views of political or private actors and on the judge's particular concerns. 68
The foregoing analysis has sought to provide an insight into how the decision-making process may generally work in collegial courts and to display the types of costs involved in its operation. The thesis will proceed to add a new layer to the analysis by detailing specifically what judges in collegial courts bargain about. The need to embark on a discussion arises because it is by virtue of the bargaining regarding those specific subjects that will be specified below that some courts are able to decide on the appropriate moment to introduce a self-transformation, as well as its extent and justification. It reveals the
i no steering of their self-transformation process.
1.2.1.6.1.3.4. What Do Judges in Collegial Courts Bargain About?
Given that courts must usually provide reasons for their decisions, it is possible to say that the internal costs of collective decision-making in some collegial courts are associated with bargaining between their members in relation to three issues: (i) the decision of the case, (ii) its justification, and (iii) the external environment affected by the decision.179
The first issue affects the particular result for the parties to the dispute. The second issue contains the policy statement of courts and determines the scope of the decision, and it is
The relevance of discussion of the internal costs of operation of courts carried out in this section will particularly be evident when we come to the description of the operation of the collegial decision-making process of the AB in Part III.3.5.3.1 of Chapter III. 179 As will be seen below, this bargaining—although deliberation may be a better term—deals with the evaluation of the political, economic, or social external actors that may be benefited or adversely affected by the decision. Collegial courts debate about the power of these actors, how they have acted in the past in relation to the court, what reactions a given court may expect from them, and how likely it is that such reactions may affect the given court. 69 the one that affects the expectations of public and private actors in relation to future similar cases.
However, given that highest courts are communicative actors, surrounded by a highly varied political, social, and economic external environment comprising multiple actors with different degrees of interests and power, it is hardly thinkable that courts, particularly those of last resort, bargain exclusively regarding legal outcomes and legal justifications.
They may also bargain for instance about how to perceive the external environment faced by courts prior to their rulings and how their decisions must take into account such environment. The reason for this bargaining is that courts have an ongoing relationship with their external actors, which is conducted through a communicative process.
The existence of such a communicative process brings us to the consideration of discourse analysis. This form of analysis of the operation of courts in real-life situations helps explain the elements that collegial courts may consciously or unconsciously take into consideration at the time they bargain about the external environment that a court faces when adjudicating a particular dispute in which an institutional issue of the court is involved.
See Forrest Maltzman, James F. Springgs II & Paul J. Wahlbeck, Crafting Law on the Supreme Court. The Collegial Game (Cambridge: Cambridge University Press, 2000) at 5. If one is to qualify which of these two issues is more important in collective terms, it is clear that, while the first makes justice for identified individuals, the greater impact is produced by the second. See in this regard, for instance, Felix Frankfurter, Mr. Justice Holmes and the Supreme Court (Cambridge: Harvard University Press, 1938) at 4-5 [Frankfurter, Holmes]. 70
For Foucault, according to Black, "[discourse ... governs the way that a topic can and cannot be meaningfully talked and reasoned, and influences how ideas are put into practice and used to regulate the conduct of others." How courts justify a decision is not then a mere legal requirement; it is part of their communication process with their public and private audiences. In fact, the justification of decisions plays a key role in the effectiveness of the "regulatory" character of courts.182 As Black states, in reference to regulation and wholly applicable to the justification of rulings as another means of regulation, "Regulation is in large part a communicative process. Communications between all those involved in the regulatory process concerning that regulatory system are an important part of their operation."183
However, it is worth mentioning that actors participating in communications also have a previous background related to the type of information contained in communications with
actors of certain kinds, which plays a role in how the information is perceived and understood. As Black says:
Furthermore ... understanding always implies a pre-understanding which is a function of prejudices (pre-judgements) of the interpreter. ... variation arises because the pre-interpretative position of each differs and each interprets according to his or her own position and purposes.184
181 Julia Black, "Regulatory Conversations" (2002) 29 J.L. & Soc'y 163 at 168. 182 As was mentioned before in Part 1.2.2 of this chapter, dealing with the identity of some courts, it is widely accepted that courts' rulings seek not only to decide the case at hand but also to affect the future behaviour of public and private actors. In this sense, rulings are another tool of regulation, and courts are regulatory institutions. I understand here the term "regulation" in a broad sense and as any measure stemming from any organ of the state aimed at affecting future public or private behaviour. 183 Black, supra note 181 at 164. I share Black's suggestion of the definition of regulation as a "process involving the sustained and focused attempt to alter the behaviour of others according to identified purposes with the intention of producing a broadly identified outcome ..." Ibid, at 170. 184 Black cites H.G. Gadamer, Truth and Method (New York: Crossroad, 1989). See Black, supra note 181 at 174. It is important to highlight that Luhmann shares these views of selectivity regarding communication, when he says: 71
One should expect the highest courts to be generally mindful of how their decisions will be understood or interpreted by the relevant public or private external environment, and one should also expect from such courts an effort to act strategically to shape these interpretations, which in turn may also have an impact on how the courts justify their own decisions prior to releasing them to the public. The reason some courts should and usually do make these assessments is so that their judgments will not be understood by public and external actors merely as orders that must be obeyed in their entirety and according to their terms. As discourse analysis shows in theory, and many know in practice, interpretation is also a strategic activity. Black describes the process of interpretation in this way.
[H]ow people interpret a text... is a function of their pre-interpretive positions, their knowledge of particular register of language and the tacit assumptions being invoked in its use, the interpretive conventions that they might adopt, and strategic behaviour on their part as to whether or not they choose to use the interpretive approach they know should be used in the particular context in which the interpretive activity is being performed.. ..185
So, one could assume that when courts are crafting the rationales of their decisions they will be aware of the communication problems their justifications may produce for the interpretive community to which the courts belong and that they will try to ensure, to the extent possible, that their external actors interpret their justifications in the way the courts
[CJommunication grasps something out of the actual referential horizon ... and leaves other things aside. Communication is the process of selection ... Communication constitutes what it chooses ... Luhmann, Social Systems, supra note 7 at 140. 185 Black, supra note 181 at 175. 72
i oz: desire. Thus, it would be rational for courts to set forth the content of justifications with an aim to preventing strategic misinterpretations.
It is also possible to think that courts see each decision as part of an ongoing dialogue with the external environment. In fact, courts, legislatures, administration, and public and private actors are then all part of a regulatory community, whose operation is key for the correct application of the given regulation, expressed in terms of the change of behaviour of those actors the regulation is aimed at.187 It is then expected that individual members of collegial courts are aware today of all these elements of the regulatory process, of which the courts' decisions and reasons are an important part, when they embark on the collective decision-making process aimed at rendering a decision and at providing its rationale.188
186 Many domestic and international courts have developed particular means to make their decisions accessible, in ways that the broad public at large can easily understand. The use of press releases is one strategy; public appearances of judges before the media to explain courts' rulings is another. See Staton, supra note 106 at 107. However, particularly at the international level, members of international courts or tribunals do not give interviews and therefore do not have the opportunity to explain the content and scope of the rulings they author for their courts. See, Theodor Meron, The Humanization of International Law (Leiden: Martinus Nijhoff Publishers, 2006) at 168. 187 Black says: [T]he creation of inter-subjective interpretive communities ... for the interpretation of both written norms and practices will be critical to the regulatory process. Without that socio- linguistic competence, there will be little effective regulation, even where there is the will and capacity to comply. The development of shared understandings and tacit knowledge will help to address issues of certainty, rule entrepreneurship ..., of 'honest perplexity', and will also contribute to the development of 'instinctive compliance: the inculcation of the habit of compliance on which successful regulation depends. As a site of analysis regulatory 'conversations' are thus significant, for they are likely to be vehicles through which attempts may be made to build meaning and to change existing pre-interpretations by creating new interpretive communities with a view, ultimately, to changing behaviour. Black, supra note 181 at 179. 188 Judges do not need to be experts in philosophy, sociology, or communication theory to realize all these elements of the regulatory process. The national, regional, and world-wide availability of some judicial decisions thorough the Internet is enough to expose their decisions and reasoning to deep scrutiny by quite a broad audience. 73
One important situation in which courts have a strong incentive to take into account the external environment is a case in which a self-transformation may also have as an additional consequence an adjustment in the allocation of power between external actors.
And power does matter. The institutional law and economics movement has emphasized this consequence of legal changes, and although it does not specifically allude to judicial decisions, it can be applied to courts too, so they should take it into account. According to
Mercuro and Medema, this movement posits that
Justice ... reflects not some given set of high foundational principles, but rather a normative valuational process that determines the laws, norms, and values that are to govern living. The legal-economic nexus is that sphere of decision making that reflects the working out of whose interests are to count as rights, whose values are to dominate, and who is to make these decisions. The resolution of these issues determines not just rights, but the allocation and distribution of resources in society, and hence power, income, and wealth.189
Although this passage does not specifically refer to courts' assessments of their external
environment, it is relevant here, because the allocation of power produced by judicial
decisions affects not only courts but also external actors. Given this consequence of courts' rulings, it is pertinent for them to examine, prior to the adoption of any decision, what allocation of power among external actors any of the alternatives available to self- transform produces.
So, as part of this process of identifying the external environment, members of the highest
courts may well debate the nature and significance of this reality, and specifically, the
following five aspects: the external actors affected,190 their power, their past behaviour
189 Mercuro & Medema, supra note 104 at 110. 190 This is so because, as the institutional law and economics movement posits, "[virtually every legal change impose both benefits and costs." Ibid, at 116. 74 after the courts' decisions, pending cases related to such actors, and expected behaviour after self-transformation. The courts may look at all these issues.
In sum, the subject matters members of collegial courts bargain about are generally three:
(i) the particular decision of the case, (ii) its justification, and (iii) the external environment. Then, as part of the performance of their collective decision-making process, each member of collegial courts may:191
1. discern and ponder the set of plausible alternatives to choose from as the final
decision of the legal question related to the court itself.
2. discern and ponder the set of justifications for each plausible alternative of
transformation.
3. discern and ponder the external actors benefiting from any of the plausible
alternatives of self-transformation.192
4. identify and debate the external actors adversely affected by any of the plausible
alternatives of self-transformations.
5. reflect on how the favoured external actors responded in the past to the court's
self-transformations.
6. reflect on how the harmed external actors responded in the past to the court's self-
transformations .
7. reflect on the power each favoured external actor has.
191 This is not to say that courts only take a decision on the basis of full information on all these factors. 192 For instance, the support of one of the most powerful external actors may well be enough to pave the way for courts to self-transform, even knowing that the majority of the relevant external actors are against the self-transformation. This may be the case of the WTO AB decision to accept unsolicited amicus curiae briefs. The decision received strong opposition from virtually all Members, save the United States. Also important in this case was the fact that the AB rulings got the support of an increasingly influential global 75
8. reflect over the power each negatively affected actor has.
9. discuss the state of the relationship of each affected actor with the court.
10. assess what actors' actions can be interpreted as pressure on the court.
11. reflect on how positively affected actors use their power to support the court.
12. ponder about how likely it is that an external actor will react to any of the
possibilities of self-transformation.
13. discuss how likely it is that the reaction will obtain the external actor's goal against
or in favour of the court.
14. discuss how pending cases can affect such reactions.
15. determine the appropriate decision regarding all these external concerns.
16. assess together the proper justification of the final decision regarding self-
transformation by the accommodation of judges' different views.
The evaluation of each of these elements is by no means a clear-cut issue for courts for a set of reasons. First, judges have different backgrounds and preferences, as Buchanan and
Tullock argue. Second, judges may have diverse pre-understandings of the ongoing regulatory relation between the court and those prominent external actors, as Gadamer said generally regarding any assessment of reality.194 And third, not all judges have the same information; some may have more recent information than others, and the reliability of different sources of information may be also a matter for assessment.195
community of non-State actors, in moments in which the legitimacy of the organization was severely contested world wide. More on this below in Part III.3.5.4.1.1.3 of Chapter III. 193 See above Part 1.2.1.6.1.3.1 of this Chapter. 194 See supra text accompanying note 184. 195 It is important to emphasize that this discussion is relevant to but not limited to decisions that have or could have self-transformative implications. 76
Having said this, it is now important to highlight how the operation of the collegial decision-making process allows some courts to steer their self-transformation process by permitting them to select the timing, scope, and extent of any self-transformation. It will be shown, in particular, how such collegial decision-making process gives some courts important room to respond to the most extreme external pressures when facing decisions involving issues that, in addition to affecting the interests of the parties, have institutional relevance for the court.
In this sense, collegial decision making contributes to the ability of a court to determine the timing, scope, and justification of a self-transformation, because, in addition to any external factors that may affect the court's decision-making process, the decisions of a collegial court must systematically take into account the preferences of other members of the court in various ways through bargaining. In this way, the collegial nature of the decision-making process introduces decision-making criteria that compete with external factors, such that collegial courts will exhibit a greater degree of autonomy from external factors in the decisions they render. This is not to say that external factors do not affect or, in some cases, even determine a court's decision but that the collegial decision-making process itself introduces other factors internal to the court and the preferences of its members that will be given effect in terms of the extent and manner of a court's response to the external environment. 77
Finally, it is important to say that the mere operation of a court's collegial decision making process does not always allow a court to steer its self-transformations. For instance, in those situations in which a government controls a court by having an overwhelming influence over a majority of its members, it may well be able to direct the court on how to decide cases in which self-transformations are at issue. In this particular case, the court may perform its collegial decision-making process in which all its members, those controlled by the government and those who are not, participate, and it is the government, through its controlled majority, that determines how the court decides the institutional issue in question. Under these circumstances, it is clear that the fact that the court performs its collegial decision-making process does not mean that it steers its self- transformative autonomy; the steering is done by the given government.
1.2.1.6.1.3.5. Collective Decision-Making and Courts' Steering of Their Self- Transformations by the Selection of Their Timing, Extent, and Rationale
It is possible to say that the external environment a court faces when deciding a case in which a self-transformation is at issue may vary according to the following three general situations: external actors' indifference, external actors' majority opposition, or external actors' majority support.196 On the other hand, it must be underscored that the analysis to be presented below is not limited to dealing with external actors seeking to get courts to adopt decisions they want; the analysis also attempts to argue that, even when courts face
Majority opposition or support is understood both in quantitative and qualitative terms. These situations are chosen for descriptive reasons and should not be seen as those frequently existing when courts are dealing with cases with potential effects on their institutions. Indeed, the most likely scenario would be a combination of these three situations in varied degrees, depending on the particular case. 78 powerful external pressures, they may be able to handle such pressure and adopt a decision to self-transform that can be attributed to them.
1.2.1.6.1.3.5.1. Courts' Direction of Self-Transformation in the Face of External Indifference
When the self-transformation at issue is neither expressly supported nor opposed by powerful external actors at the time of the decision, it is the court virtually alone, through the bargaining among its judges, which takes the decision to self-transform or not.
However, the external environment may still play a role regarding the potential reactions to the transformation, depending on how the given ruling is interpreted and the strategic options it may open to external actors, as was mentioned before. But such potential and external reactions are sifted through the collegial decision-making process, because each judge may have different perceptions regarding the existence and magnitude of the potential strategic interpretations and eventual reactions by certain actors, which depend in turn not only on the specific decision but on the overall pre-existing, ongoing, and future relationship or regulatory dialogue199 between the court and the given actors whose reactions may be expected.
197 This may occur if the case at hand is considered as unimportant by powerful external actors, or because they are unaware of it due to the fact that they are not involved. Nothing prevents apparently "trivial" disputes from raising complex legal issues of potential systemic consequences for courts. 198 See above Part 1.2.1.6.1.3.4. 199 It is important to recall that any decision regarding self-transformation having an impact on certain external actors is assessed within the framework not only of past decisions but also of pending decisions related to them. So, for instance, a court may adopt a self-transformation that is likely to be opposed by a powerful actor if it knows that it may rule in favour of this actor in another ongoing case, thereby diluting adverse responses by this actor. 79
1.2.1.6.1.3.5.2. Courts' Direction of Self-Transformation in the Face of Powerful External Opposition
The second extreme circumstance a court may face is when all the most powerful external actors are openly against the self-transformation.200 Even in this situation, however, some courts may still be able to steer their self-transformation process due to the operation of their collegial decision-making rules. Assume that the majority of a court is certain regarding the existence of pressure against a self-transformation from a powerful external actor. There is still room for selecting a decision regarding the self-transformation. Indeed, judges of the given collegial court still may have different perceptions of the type and magnitude of the reaction that the self-transformation may prompt from these external actors. Such variety of perceptions may exist based on the judges' different interpretations of the past experience of the court with such actors and of the ongoing relationship with them. Judges may deliberate regarding their individual views, and as a result of this collective process, a majority of the court may arrive at a more or less concrete assessment of how likely and with what magnitude the external actor will react against the court or its decision. If the likelihood of the reaction and its magnitude is regarded as low by the court, because, for instance, after the internal deliberation among its members it comes to the conclusion that the actor cannot take the risk of challenging the court for fear of the outcome in another pending case or the actor's action may not be well received by another powerful external actor, then the collective decision-making process of the court prevents the former actor from really influencing its decision.201
200 This opposition may be related to the direct allocation of power against this actor that the self- transformation of the court may produce. 201 It is possible that a single-judge court may also carry out a similar analysis. However, the different information, perceptions, past experience, and interpretations of external actors' past and ongoing behaviour 80
But assume that a majority of the court recognizes the existence of pressure from the external actor and concludes that its reaction is likely and of an important magnitude against the court. Its members still can bargain regarding the degree of self-transformation that triggers such reaction, and members may negotiate about a decision that implies a self-transformation, not of a greater but of a lower extent, leaving for another occasion a further self-transformation in the same direction. Instead of an all-at-once self- transformation, the already-mentioned flexibility of interpretation of legislation offers the court the opportunity to adopt a decision and a justification that launch a self- transformation in several phases and contained in various rulings. For instance, the court may have in its docket pending cases that provide a basis to do so, or if not, it may call off for the near future the adoption of further steps in the path. Powerful external actors may influence the court's decision, and its timing, but it may not entirely prevent the court from self-transforming in the medium or long run.
1.2.1.6.1.3.5.3. Courts' Direction of Self-Transformation in the Face of Open and Powerful External Support
Finally, the third most extreme scenario for a court is to have powerful external actors publicly or privately supporting its self-transformation, which could lead one to conclude that, apparently, any self-transformation introduced by a court under this circumstance
that members of collegial courts bring to the discussion yield a more accurate assessment of external actors' threats. 202 The existence of different degrees of self-transformation is also illustrated by the WTO AB's handling of the issue of amicus curiae briefs. For a detailed analysis of this self-transformation, see below Part ffl.3.5.3.2 of Chapter III. 203 See above Part 1.2.6.1.2 of Chapter I. 81 would be the result of the external pressure. Again, the internal decision-making of some collegial courts permits them to direct their self-transformation. First, judges may deliberate regarding the extent and of veracity of the support and find that the change should not be so large as initially perceived by each judge. Second, even if a majority of judges assess this support as true, they still may negotiate about the desirability from the court's perspective of adopting a self-transformation to the extent that external actors are pressing for. They may select a decision that does not go that far. Even assuming that the pressure is enormous, the collective decision making may allow individual judges to negotiate the speed of the self-transformation, whether in a single decision or in a set of decisions.
Finally, the question arises whether a court that self-transforms to the full extent desired by the majority of external actors is still directing its self-transformation process. It may not be the case if the court simply, after its collegial decision-making process, determines that it does not have any option but self-transformation in the ways that external actors regard as appropriate. But one should not jump to an immediate conclusion that, by doing this, a court would be prevented from having an effect on this particular self- transformation. One has to take into account that there is an ongoing relation of the court with these external actors, and subsequent cases with a slightly different external environment may offer the court the opportunity to assess its previous self-transformations and to determine on the basis of its collegial decision-making process whether to maintain, broaden, or narrow them. Therefore, the existence of an ongoing relationship may leave in 82 the court's hands the direction of its self-transformation process even if, in a particular case, the external pressure was unbearable for the court and it had to bend to it.
Equally, one should not assume that a court's decision to self-transform to the extent desired by external actors means that they successfully imposed their views on the court.
Indeed, all the internal deliberations between the members of the court may lead to the conviction that the most desirable self-transformation is precisely that for which external actors are advocating. If this is what occurs, and the court internally had the opportunity to select other less broad self-transformations had it wished to, there is a coincidence between the court and its external environment and not an imposition; therefore, it can be said that the court directed its self-transformation process.
1.2.1.6.1.3.5.4. Summary
In conclusion, as can be seen, the operation of the internal rules of collegial decision making allows courts to steer their process of self-transformation by selecting the appropriate moment to introduce changes to their institutions, and the extent and rationale of such changes, in the face of the three extreme external circumstances courts may face, namely, first, indifference of the environment; second, powerful external actors' strong opposition; and third, these actors' strong support.204
The above section cannot be seen as standing for the proposition that courts are able to ignore most external pressures. The section stands for the proposition that some courts facing such significant pressures may still be able to handle them, through the operation of their collegial decision-making process, in a way 83
For these reasons observed, it is possible to say that some courts meet the three requirements that Luhmann has specified as conditions for the self-creation of autonomous systems.
(i) The system must be in a position to adopt an action regarding itself, because
courts have the capacity to interpret their own law.
(ii) The selection of the action must be placed within the system itself, since
courts' law offers courts flexibility to choose among a set of plausible
interpretations of the law, some of which involve self-transformation,
(iii) The action that recreates the system is directed by the system's own rules of
operation in the sense that some courts select the timing, scope, and rationale
of their self-transformations through the operation of their collective decision
making process and in light of their past and ongoing relationship with the
relevant actors of the external environment.
Therefore, it could be said that it is possible that courts meeting these requirements have the autonomy to self-transform.
1.2.6.2. A Note of Caution: The Limits of the Self-Transformative Autonomy of Autonomous Courts
While some courts may have the autonomy to self-transform, it is also true that such autonomy has important constraints.
that allows the courts to genuinely adopt a decision regarding self-transformation that can be attributed to them. 84
1.2.6.2.1. The External Environment as a Constraint to Some Courts' Autonomy to Self-Transform
The openness of courts to the external environment, their constant observation of such environment, and the need to ensure courts' continued operation all mean that the external political, social, and economic milieu is a significant limit on the courts' self- transformation ability. Thus, autonomous courts may adopt decisions with an eye on the impact they may have on the political branches of the State and other powerful external actors.205 This would be so, because external actors have the power not only to reverse a court's self-transformation by the enactment of new legislation, but also to alter the structure of the court by reducing its jurisdiction or changing the rules of operation through the same means, by reducing the court's budget, or by enacting laws changing the composition of the court or its members' tenure.206 It is a power that is held in reserve but that does exist, and collegial courts of last resort are aware of it. The existence of this power may have two impacts on a court: either such power is exercised against a court, or it forces the court to change its behaviour in anticipation of such exercise and to prevent it.
In effect, the autonomy of a court might be severely limited if legislative bodies can remove judges of the court for their decisions contrary to legislative will. Although this
For an analysis of how the U.S. Supreme Court, the ICJ and the AB observe their external environment; see below Parts n. 1.1.4 and II.2.1.4 of Chapter II, and Part III.3.4.2 of Chapter III, respectively. 206 See Staton, supra note 106 at 99. 2071 do not refer here to the legislatures' power to amend the Constitution to overrule courts' decisions. This is certainly a possibility that may diminish a court's reputation at a specific point in time. I refer here to a legislature's more critical determination to amend either the Constitution or the given legislation that set the structure of the court in order to affect its operation. This is a much more complex scenario for a court given that the potentially affected court lacks the possibility of defending itself in the political process leading to this change. All that can prevent the adoption of such a determination is the court's reputation and the willingness of its allies to protect the operation of the court. 85 phenomenon might be uncommon today, it was not so in the past. For instance, the U.S.
Supreme Court lived through one of the darkest moments in its history when Justice
Samuel Chase was unsuccessfully threatened with impeachment in the U.S. Congress under the argument that impeachment could be possible whenever Congress considered that a member of the Court should be replaced by another and without his having committed any crime. Had this theory prevailed, McCloskey states, "...the doctrine of the independent judiciary would have foundered and the whole future history of the Court might have been profoundly altered."208
The risk of political interference with the operation of courts might also come from legislative changes aimed at allowing the appointment of members sympathetic to legislatures' or governments' views and policies, as was the case, for instance, of U.S.
President Theodore Roosevelt's Supreme Court packing plan.209 Similar attempts have been made to rein in the Supreme Court of Mexico. There the size of the Court has been changed four times since 1917, and the tenure of its members has been modified on five occasions.210 A similar problem has arisen in Venezuela, where the Supreme Court has been expanded from 20 to 32 members, and it is now controlled by President Hugo
Chavez.211
Given these difficulties, courts may keep a close eye on the extent of the potential legislatures' reactions against their rulings. 208 McCloskey, supra note 84 at 29. As recently as March 2007, a situation of this sort took place in Pakistan, where General Pervez Musharraf, the country's ruler, removed the Supreme Court Chief Justice, Iftikhar Chaudhary. Although General Musharraf did not provide details for his decision, observers linked the Chief Justice's removal to his strong stance regarding violation of human rights by the government. See Financial Times (12 March 2007) online: FT
However, courts also have to assess other external actors, such as public or private interest groups and even public opinion in general, despite the fact that these actors do not have the ability to take actions against courts. This is so because if the actors are powerful enough, they may press legislatures to oppose courts, thereby having an indirect capacity to adversely affect courts and their decisions.
It is then possible to assume that courts should only introduce a self-transformation that they assume will be accepted by their political, economic, and social external environment, and in consequence, this environment constitutes an important restriction of the autonomy of some courts to introduce self-transformations. The following words of
Robert McCloskey, referring to the constitutional interpretations of the U.S. Supreme
Court in its first decades, may be also applicable to any court interpreting its legislation and introducing a self-transformation: "The judges [of the Court] have begun to learn the arts of judicial governance; the necessity to avoid, if possible, head-on collisions with the dominant political forces of the moment, the undesirability of claiming too much too soon
.. ,"213 "[Constitutional law, like politics itself, is a science of the possible."214
1.2.6.2.2. Collegiality as an Internal Constraint
This is why judicial independence is a variable affecting the degree of courts' self-transformative autonomy. 213 McCloskey, supra note 84 at 34. 214 Ibid, at 14. 87
The second restriction courts may have on their autonomy to self-transform is their collegial decision-making process. Indeed, the collegial character and the internal decision-making process may operate as an important constraint to the self-transformation autonomy of courts. Referring to the U.S. Supreme Court, Murphy maintains that
"obtaining a majority for a decision, however, is relatively easy compared with the problem of getting five or more intelligent, strong willed and individualistic Justices to agree in whole with an opinion written by one of their number. The degree of difficulty is likely to increase with the importance and complexity of the issues which the case presents ..." U.S. Justice Oliver Holmes expressed dramatically the constraining effect of his fellows' interventions in the decision-making process of the Court. According to
Murphy, "Holmes once complained ... about his fellow Justices, that 'the boys [and today the girls too]216 generally cut one of the genitals' out of the opinion he circulated."217
The impact of courts' decision-making process on deliberations in which one of the issues litigated has an impact on the parties, and also implies an institutional transformation for courts, is significant given that such outcome must receive the approval of the majority of judges, at a minimum, not only in terms of the determination of whether or not to self- transform, or on the scope of the self-transformation, but also on its grounds. I use the term "minimum" because it may not be unlikely that a court would wish to introduce such institutional changes not by majority, but by unanimity or by consensus so as to
5 Murphy, supra note 78 at 23. 6 My addition. 7 Murphy, supra note 78 at 24. 88 demonstrate that the court is strongly united behind its self-introduced innovation.
Otherwise, the presence of dissenters could eventually undermine the courts' authority and trigger discussion and criticism from the courts' external environment: politicians and public or private interest groups.
In this sense, the strategic desirability of making a self-transformation by unanimity means that those judges opposing the timing, the scope, or the very decision to self- transform a specific feature of the given court would hold significant power during the judicial decision-making process. Only once concerns of each member regarding timing, scope, and grounds are fully addressed will the court be able to introduce a particular transformation. One could expect that potential dissenters' explicit or implicit "veto power" would influence, for instance, the scope of the self-transformation, in the sense that dissenters would support the institutional development on the basis of the majority's assigning it a narrow ambit in the given ruling, although it is also possible that they may favour broader changes. Therefore, the internal costs of the decision-making process of collegial courts leading to a self-transformation may well be assumed to be considerable given the potential need for unanimity, and they may operate as a considerable constraint.
For instance, the internal requirement to adopt decisions by unanimity took place in the U.S. Supreme Court ruling in Brown (supra note 98). See Fisher, supra note 109 at 153. See also in this regard, Rehnquist, Supreme Court, supra note 14 at 197. The concern for a single voice has also existed for the AB since the beginning of its operation. See below Part III.3.2 of Chapter III. 219 Referring to the U.S. Supreme Court, Maltzman et al. stress: [B]y providing alternative ways to view the legal rule underlying the majority opinion, separate opinions can influence how the majority opinion will be perceived, and even implemented, by judges, political decision makers, or private interests. In this sense, separate opinions possibly weaken the precedential basis of the opinion. We know that opinions accompanied by concurrences are at greater risk of being overruled in the future
Maltzman et al, supra note 189 at 68. Dissents are a normal feature of the ICJ's decisions, and its adverse effect on their legitimacy has been highlighted by some of its own judges. See below Part II.2.1.5.3.1 of Chapter II. 89
As can be seen, the internal constraints courts face regarding their autonomy to transform themselves effectively work as a constraint on such autonomy, and one loses sight of the situation if one is tempted to think that the fact that autonomous courts steer their self- transformation autonomy means that self-transformation is internally a peaceful enterprise always leading to the endless and repeated expansion or contraction at will of the given court. Internal constraints may prevent this from happening. It is possible to envisage a situation in which a court's external environment may not oppose a court's new institutional self-development, but the court does not introduce it, because its internal decision-making process makes it impossible, due to strong disagreement within its members about the specific issue. In this case, the court's self-transformation autonomy is restricted by its internal rather than by its external constraints.
Collegiality may also operate as a constraint in situations in which the external environment is strongly supportive of a change. Even then, internal factors may cause a court not to transform. Collegiality might be considered to increase autonomy from external factors but may function as a constraint on action. 90
1.2.6.2.3. Courts' Self-Observation as a Constraint
A third source of restraint stems from what Luhmann has labelled self-observation. In effect, whatever the amount of resources courts may have at their disposal to carry out their duties, they are limited, and courts will prevent themselves from adopting self- transformations that may lead to inefficient allocation of such resources in a way that impairs courts' ability to perform their functions.
1.2.6.2.4. Courts Cannot Bring Cases
This thesis shows that some courts have autonomy to self-transform, but this autonomy does not mean that courts set out on a route of change and are able to achieve it on a case- by-case basis. This is not a realistic proposition, since courts are not self-starters and need litigants to operate. Although one can expect frequent litigation concerning courts' law, it may well be the case that courts are not given the opportunity to interpret certain provisions, just because the issue does not arise.
This situation means that there is perhaps a great deal of randomness in how courts evolve through the years. In fact, no court may know ex-ante the type of institutional question it will have to resolve; therefore, it is impossible to think of courts as being able to fully plan their own evolution. However, what autonomous courts do is to assess whether or not, when, and to what extent to self-transform with respect to each concrete occasion in which an institutional feature of a specific court is at issue in a given dispute. 91
Finally, it is worth highlighting that this constraint also has its limitations. First, there are various kinds of issues that may be of a recurring nature, and it is conceivable that a court may decide on an approach to develop the law in a particular way through a succesion of decisions. Second, it is certainly possible that a court may make a decision in a way that effects a transformation that was not part of any request by any party.221
In sum, this whole section 1.2.6 has illustrated that the conditions courts must satisfy to possess autonomy to self-transform and the restrictions on such autonomy. This thesis will move on to analyze the final criterion derived from Luhmann' theory of systems to argue that a court operates as an autonomous system: the court's ability to influence its external environment.
1.2.7. Some Courts' Influence over External Autonomous Systems
It was illustrated above in Part 1.1.6 that autonomous systems evolve along with other systems that are part of their external milieu. It has also been shown above in Part 1.2.1.5 that the external environment, although it may not determine some courts' self- transformative decisions, does contribute to shaping them. Now it is important to highlight that this process also takes place the other way around: from some courts to their external environment.
See in this regard above Part 1.2.3 of this chapter. 221 See Part II.2.1.5.4 of Chapter II and Part III.3.5.4.2.2.2 of Chapter III for illustrations of self- transformations introduced by the International Court of Justice and the AB that were not raised by parties. 92
There is little doubt that some highest courts play an important role in shaping the evolution of other autonomous systems and of society as a whole. Those carrying out judicial review of legislation make decisions that force societies to follow their path in some fields and to rethink it in others. The courts also allocate power between the
000 branches of the State, and courts' decisions may have significant present and future economic impact.
However, it is not only through judicial review of States' legislation that some courts influence their external environment. They also do so when adjudicating particular cases, by way of the expectations their rulings generate in others placed in similar circumstances.
These rulings may prompt those favoured by them to pursue litigation in order to get the
00~\ benefit of the rulings. The new rulings may end up with a mixture of results: ratification of the previous ruling in some cases, rectification based on new facts not initially considered in others, deepening or broadening of the previous conclusions to cover new situations, and reversal, whether in part or total. This process, by its constant repetition, may lead to changes of varying degrees and timing in part or in the whole of courts' external environment.224
For instance, the U.S. Supreme Court was instrumental in the consolidation of the federal state, and of the Presidential institution, during its fist century of operation. More recently, it has increasingly been protecting states' powers from the federal state's intrusions on them (Further analysis is provided below in Part II. 1.1.6.1 of Chapter II). The European Court of Justice has also played a key role in this regard by setting important pillars on which the whole European integration process has rested. (See Craig & de Burca, supra note 153 at 87). 223 See in this regard, for instance, Scott A. Comparato, Amici Curiae and Strategic Behaviour in State Supreme Courts (Connecticut: Praeger, 2003) at 8. 224 No change is also a possibility. 93
1.3. Conclusions of Chapter I
Chapter I of this thesis has shown the basic features of the operation of autonomous systems, as posited by Niklas Luhmann. In this sense, autonomous systems are characterized by the following attributes. They possess an identity, carry out a process of self-observation, and function in a recursive way by which they continuously repeat their processes of operation and re-create their elements. Autonomous systems are open to their external environment in the sense that they' do observe it and are able to re-create themselves and to self-transform in light of it. Finally, autonomous systems, with their operation, may also shape other systems that make up part of their external environment.
Attributing to the operation of some collegial courts at the apex of the judicial system the main characteristics of the functioning of autonomous systems does not pose major difficulties. They have an identity that distinguishes them from other public organs; judicial bodies of last resort may also perform a process of self-observation and operate with recursivity in the sense that they reinterpret their own previous interpretations in an endless and circular process. Such highest courts are far from being isolated actors. They observe their external environment, namely, the actions and omissions of political branches of states, political parties, or public opinion and private interest groups.
These courts also have the power to introduce by themselves transformations to their institutions, satisfying Luhamann's three requirements for an autonomous system to re create itself. First, such courts are in the position to adopt decisions regarding themselves. 94
Second, these courts may virtually always have a set of persuasive interpretations at hand to choose from before deciding to self-transform or not. And third, these courts direct their process of self-transformation, because through the operation of their collegial decision making process their members bargain and deliberate regarding the decision to self- transform or not and determine the timing, scope, and justification of any self- transformation in light of the past and ongoing relationship with the relevant actors of the external environment.
Nonetheless, the autonomy to self-transform that some courts possess has significant constraints. First, the external environment operates as such, given that political actors on their own or in response to pressures from other social or economic sectors are able to adopt legislative measures affecting the functioning or structure of courts. Therefore, some courts may exert this autonomy with an eye on potential reactions of this sort. Second, the collective decision-making process of some collegial courts may also constitute an important constraint if some members regard as inconvenient or unlawful either the self- transformation or its timing, scope and justification, and such opposition prevents a majority to be gathered for the adoption of the self-transformation at issue. Finally, the existence of autonomy to self-transform by no means implies that these courts have an unlimited power to set a self-transformation route, since courts cannot bring cases on their own, and legal questions with institutional implications may not be raised by parties before them. 95
Ultimately, autonomous courts, with their decisions, are in a position to contribute to the shaping of external autonomous systems in different ways, because these courts can sometimes specify the type of actions that other external actors are able to perform.
With these elements in mind, it is now useful to see cases of specific operation of some domestic and international courts, such as the U.S. Supreme Court and the ICJ, on the basis of the above-mentioned characteristics of autonomous systems, in order to show generally how they may operate in ways similar to autonomous systems, but most importantly, to illustrate how they have an autonomy to self-transform and have carried out important changes to their institutions during their existence. This analysis will be subsequently used to describe how the operation of the AB resembles that of an autonomous system as well, and how such analysis can shed light on our understanding of the AB. 96
CHAPTER II
THE SELF-TRANSFORMATIVE AUTONOMY OF SOME NATIONAL AND INTERNATIONAL COURTS IN LIGHT OF LUHMANN'S THEORY OF AUTONOMOUS SYSTEMS
As discussed in Chapter I, the purposes of this thesis are two. The first one is to expand the use of Luhmann's theory to show under which particular conditions this theory can be applied to judicial institutions, a task Luhmann himself did not address. The second purpose is to illustrate why Luhmann's theory helps to explain the operation of the AB, and particularly, how it has some autonomy to change the WTO dispute settlement system, how it has exerted this autonomy in the past, and what institutional changes could be introduced in the future.
Chapter II will present the application of Luhmann's theory to two judicial institutions, the
United States Supreme Court and the International Court of Justice, in order to confirm that these two judicial bodies have operated as autonomous systems by satisfying all the criteria mentioned in Chapter I and, particularly, that they have adopted decisions that have transformed their own institutions. This chapter then is linked to the first objective of this thesis by serving as a test that will confirm that Luhmann's theory can be expanded and applied to collegial judicial bodies.
In relation to the second objective of this thesis, Chapter II seeks to provide a means to better understand the structure and operation of the WTO AB. The choice of the U.S.
Supreme Court has been made for a number of reasons: this court is the most analyzed 97 judicial institution in the world, not only from the strictly legal standpoint, but also from the political science perspective. There are also complete accounts of the relationship of the Court with its external environment as well as of the Court's internal collegial decision-making process, accounts that it may be quite useful to try to apply to the AB, with some adjustment. On the other hand, the selection of the International Court of
Justice is grounded on the fact that it is the most established international judicial institution, whose operation has also been comprehensively scrutinized and which shares with the AB the status of an international court set with the task of resolving inter-State disputes. Both institutions also have significant differences in terms of the nature of their jurisdictions and the subject-matters both deal with, among many others, but analyzing such differences contributes to better understanding of them as well. In sum, looking at how the U.S. Supreme Court and the International Court of Justice operate can provide useful insights into the functioning of the AB and can illustrate how it acts like an autonomous system, as described by Luhmann, and particularly, how the AB is in a position to introduce changes to the WTO dispute settlement system. The analysis of these courts, and particularly of the International Court of Justice, will also provide an important context to explain the self-transformations of the AB and to suggest other transformations in which the AB may engage modelled on those carried out by the ICJ.
For this purpose, Chapter II is divided into three parts. The first will seek to answer the question of whether the U.S. Supreme Court has operated as an autonomous system, and particularly, whether it has self-transformative autonomy and has exerted it. The second 98 part will examine the International Court of Justice with regard to the same criteria. The third part provides the conclusions of the chapter.
II.l The U.S. Supreme Court as an Autonomous System and Its Autonomy to Self- Transform225
Section 1 of Article III of the U.S. Constitution created the Supreme Court, and Section
2 established that it has two sources of jurisdiction: original jurisdiction, related to cases affecting ambassadors, ministers, and consuls, and appellate jurisdiction regarding decisions on lower courts as to facts and law, as Congress may determine. The number of
Justices of the Court is fixed by the U.S. Congress and has varied throughout the years.
Today, it has nine members appointed for life, who can only be removed in the event of illegal behaviour. Members are proposed by the U.S. President and confirmed by the U.S.
Senate through a process in which the candidate's background is the subject of strict
227 scrutiny.
225 The analysis that follows does not pretend to exhaustively demonstrate the operation of the U.S. Supreme Court as an autonomous system, but simply to present some hallmarks of its jurisprudence that suggest an operation of this character. The history of the Court is so rich in topics and trends in different phases, and some of its trends emerge as a result of multiple decisions. Justice Felix Frankfurter put it nicely when he said that "the Court's influence has been achieved undramatically and imperceptibly, like the gradual growth of a coral reef, as the cumulative product of hundreds of cases, individually unexciting, but in their total effect powerful telling in the pulls and pressures of society ..." Frankfurter, Holmes, supra note 180 at 3. Given this particularity, all that remains to say is that, here, some of the most important decisions of the Court will be highlighted in order to suggest that it has operated as an autonomous system in the way described by Luhmann and in spite of the fact that each of these decisions may have been altered by subsequent rulings. 226 Section 1 of Article III provides as follow: The judicial Power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the Supreme Court and inferior Courts shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. [Capital letters in the original]. 227 See Fisher, supra note 109 at 124. 99
This structure provides an important degree of independence both to the Court and to its
Justices. Indeed, the fact that U.S. Justices have a life appointment frees them from trying to sway future nominators by adopting positions or deciding cases in ways that would please them in order to ensure renewal of their tenure in office, which could affect the overall independence of the Court. Nonetheless, life tenure does not isolate the U.S.
Supreme Court from external pressures, some of them described by Warren as follows:
The Supreme Court was not entirely independent; for its members were subject to confirmation by the Senate; its membership could be added to, or (in case of death or resignation of a Judge) reduced in number, by Congress; its salaries were dependent on appropriations by Congress; ...228
However, this is not to say that the U.S. Supreme Court has not acted independently from the U.S. Congress and Executive at times throughout its history. The same author states that the "Court has, from the outset, proved itself to be fully as ready to curb the President as Congress, if either had exercised power not granted ..."
The rulings and history of the U.S. Supreme Court provide much evidence to show that it has operated as an autonomous system, based on Luhmann's criteria as developed in
Chapter I. In effect, the U.S. Supreme Court possesses an identity determined by the functions it carries out: it self-observes and observes the external environment when performing its duties. The U.S. Supreme Court operates by recursivity in the sense that it interprets and re-interprets legislation and its own prior jurisprudence, and it has autonomy to self-transform, which it has, in effect, exercised during its already long
228 Charles Warren, Congress, the Constitution, and the Supreme Court Reprint (Holmes Beach: Gaunt, Inc., 2001) at 250. 229 Ibid, at 259. For detailed specific cases illustrating such independence, particularly during the nineteenth century, see ibid, at 257-72. 100 existence. Finally, the U.S. Supreme Court has had a significant influence in shaping its external environment, and particularly the U.S. Federal State.
In order to develop these arguments, the first part of this chapter will be divided into seven subparts that will deal with each of the features of autonomous systems as identified by
Luhmann, although particular emphasis will be placed on the Court's autonomy to self- transform, on how it has exerted this autonomy, and on what its main constraints are.
II.l.l. Features of the U.S. Supreme Court as an Autonomous System.
II.l.l.l. The Identity of the U.S. Supreme Court
The U.S. Constitution empowers the Court with the capacity to decide only cases or controversies, imposing the well-established requirement of justiciability as a precondition for the Court to adjudicate a given issue. The U.S. Supreme Court is fundamentally a judicial institution and has taken steps to preserve this exclusive character. For instance, the Court declared in its early years that it was not within its functions to advise the U.S. administration or Congress and decided not to render advisory opinions. " By so doing, the Court refused to play a role akin to a part of the executive branch of the government, as is sometimes the case with the International Court of Justice, which also acts as advisor to the UN organs.
230 As to justiciability, see Geyh, supra note 108 at 225-26. 231 U.S. President George Washington asked the Court to render an interpretation regarding treaties the United States had celebrated with England and France. See in this regard, McCloskey, supra note 84 at 20, regrettably without mentioning the specific ruling. See also Geyh, supra note 108 at 225. 232 A detailed analysis of the advisory role of the International Court of Justice is provided below in Part II.2.1.1.1 of this chapter. 101
The judicial character of the U.S. Supreme Court has been also highlighted by the fact that the Court has required that the disputes before it be legal and not political. The justiciability requirement means that pure political issues cannot be resolved by the Court but must be left to federal or state legislatures, or the citizens through the polls. An expression of this jurisprudence is the "political questions doctrine" according to which the Court does not intrude on matters falling within the scope of the U.S. President's powers when they are strictly political.233
However, the U.S. Supreme Court is not only a body empowered to decide disputes between individuals. Its identity also has a political or quasi-legislative dimension, recognized even by some of its members. For instance, U.S. Justice Lewis F. Powell once stated:
The judicial branch of government in the United States, of course, is a political branch in the broad sense. ... A good many of the questions that involve constitutionality of statutes, and executive branch conduct, fairly can be viewed as political in the broadest sense. I suppose one could say our function, in that sense and to that degree, is politically oriented, yet we think of ourselves as judges guided by the Constitution as the law of the land.234
This political character derives from the type of cases that the U.S. Supreme Court chooses to decide and from the impact of its decisions. The cases the Court chooses to adjudicate are generally those with considerable impact, because they involve unsettled
See Colegrove v. Green, 328 U.S. 549 (1946) [Colegrove]. For a complete analysis of the political question doctrine see Laurence H. Tribe, American Constitutional Law (Mineola: The Foundation Press, Inc, 1978) at 72-79; Fritz W. Scharf, "Judicial Review and the Political Question: A Functional Analysis" (1966) 75 Yale LJ. 517, and Martin H. Redish, "Judicial Review and the 'Political Question" (1984) 79 Nw. U. L. Rev. 1031. 234 Interview with Lewis F. Powell published in Kenyon College Alumni Bulletin (Summer 1979) as quoted by Fisher, supra note 109 at 61 [Powell, Interview]. 102 questions of federal constitutional law or issues of general interest.235 So, the consequences of the Court's rulings are broad and go well beyond those for the parties of the case, and these rulings no doubt shape future public and private behaviour in ways similar to those of legislation.
Finally, it is important to highlight that, while the U.S. Constitution broadly defines the
U.S. Supreme Court's identity, it is for the Court to determine in practice what it understands this identity to be, as posited by Luhmann regarding autonomous systems.236
So, it is within the domain of the Court to decide which issues are justiciable and which are not. The discretion the U.S. Supreme Court has in determining its identity is evidenced once it is realized that disputes that were considered to be strictly political at a certain moment were subsequently regarded as legal ones the Court could adjudicate. Legislative reapportionment and the greater weight assigned to rural voters than to urban ones is a clear illustration. Some Illinois residents challenged the legislation, but the U.S. Supreme
Court applied the political question doctrine in Colegrove and refused to deal with the legislation. Fifteen years later, some Tennessee citizens made the same claim, and the
9^8
Court in Baker v. Carr determined that such controversy was not a political but a legal one.
See Rehnquist Supreme Court, supra note 14 at 238. See above Part 1.1.1 of Chapter I. Colegrove, supra note 233. Baker v. Carr, 369 U.S. 186 (1962). [Baker]. 103
Summarizing, the U.S. Supreme Court has an identity determined by its function; it is an identity that the Court itself determines to a great extent, defined by a mixture of purely judicial and also political features.
II.1.1.2. Self-Observation in the Operation of the U.S. Supreme Court
The U.S. Supreme Court may exert self-observation either during the first stage of the proceedings before it, when the Court evaluates requests for certiorari, or in the exercise of restraint to adjudicate disputes. The U.S. Supreme Court may determine, through self- observation, the type of cases that it will and will not decide. It has the power to do so through its writ of certiorari.240 Thanks to its power to select its cases, the Court may choose not to adjudicate complex issues in which it believes—for reasons associated to self-observation, among others—that it should not be involved, in the hope that the
94.1 political process will cope with them.
Self-observation is also involved in some issue-avoidance techniques aimed at preserving the rational use of the limited resources of the Court. For instance, as was mentioned, the design of the doctrine of mootness permits the Court not to rule on disputes that have
949 disappeared at the time of the ruling, rendering the pronouncement useless. Under these
Part 1.1.2 of Chapter I described the way autonomous systems observe themselves, and how this action also involves observation of their external environment and has an impact on how autonomous systems define their distinct identity. This part will illustrate only the way in which the U.S. Supreme Court assesses the consequences that its decisions may have on itself, and Part II. 1.1.4 will provide the reasons why the Court also has to look at its external environment. 240 See Geyh, supra note 108 at 231. See above Part 1.2.3 of Chapter I for a description of the doctrines the U.S. Court has designed to determine the cases it hears and resolve. 241 See McCloskey, supra note 84 at 250. 242 See Doremus (supra note 109), in which the U.S. Supreme Court refused to render an opinion regarding whether the reading of the Bible in schools was unconstitutional, because the claimant had already graduated 104 circumstances, the Court preserves the value of its decisions and save its resources to be used in other controversies where its intervention is needed.243
The same can be said with regard to the design and use of the doctrine of ripeness, which allows the Court not to adjudicate disputes against the Administration, when the plaintiffs have not exhausted the remedies available. Under these circumstances, the Court precludes itself from wasting its resources by taking cases that still may be resolved by the
Executive through review of its decisions. In this way, the Court also avoids interfering with the normal functioning of the administration, which has not yet made a definitive decision.
Self-observation is also present when the Court applies the political question doctrine, because it is the Court itself, after having considered the nature of the case, who assesses whether it has the capacity to solve the dispute at issue effectively or concludes that it is not the appropriate fora to provide a solution. The Court sees itself and concludes that the controversy goes beyond its powers. The doctrine of mootness already mentioned may
at the time of the decision. However, the doctrine of mootness has its exceptions, and it is not applied to prevent the U.S. Court from rendering its decision in cases it regards as important. In Roe {supra note 109), the Court issued its landmark decision despite the fact that the pregnancy of the woman had terminated, on the ground that the issues was capable of repetition. See Fisher, supra note 109 at 96. 243 An author in the Harvard Law Review states that the doctrine of mootness "prevents the useless expenditure of judicial resources and assures that the courts will not intrude prematurely into policymaking in a manner that will necessarily constraints other branches of government." Unidentified author, "The Mootness Doctrine in the Supreme Court" (1974 - 1975) 88 Harv. L. Rev. 373 at 376 [footnotes omitted]. 244 See generally Curtis et al., supra note 111 at 451. 245 It is worth highlighting that nothing prevents the association of the use of the political questions doctrine by the U.S. Supreme Court to the development of its identity and also here to self-observation. Since autonomous systems carry out simultaneously all the activities that have been identified here as criteria, one can say that it is through self-observation and also observation of the environment that a court defines its identity. In consequence, the design and use of the political questions doctrine is an action that is intimately 105 also be used with the same objective. Fisher tacitly linked the use of this doctrine of mootness to the Court's self-observation, when he stated that "[i]f the judiciary is unprepared or unwilling to decide an issue, mootness is one avenue of escape."247
However, self-observation is not only associated with events of restraint. In other situations, the Court may determine that it is not feasible to expect that solutions to certain problems will come from political organs, because of political deadlocks or lack of political will, and that the Court is the only organ able to provide the solution. For instance, this was the view of Justice Powell who held that judicial independence gives the court "a freedom to make decisions that perhaps are necessary for our society, decisions that the legislative branch may be reluctant to make."
Concluding, among the instances in which it can be said that the U.S. Supreme Court carries out self-observation are the assessment of the request for certiorari; the design of doctrines aimed at, among other objectives, making effective use of its resources, such as mootness and ripeness; the elaboration of doctrines in which the Court recognizes its limits as an adjudicative body, such as the political questions doctrine; and the decision to adjudicate complex issues with respect to which responses from political organs may not be expected.
related to self-observation and observation of the external environment, which also has a direct consequence on the U.S. Supreme Court's identity in the sense that it determines the extent of its adjudicative function. 246 See above Part 1.2.3 of Chapter I. 247 Fisher, supra note 109 at 96. 248 Powell, Interview, supra note 234 at 15. As quoted by Fisher, supra note 109 at 141. 106
11.1.1.3. The Recursive Operation of the U.S. Supreme Court
Luhmann claims that autonomous systems operate by recursivity, meaning that they reproduce their internal processes. In the case of courts, it was posited that recursivity for them means that they interpret and reinterpret legislation and their prior interpretations thereof in a permanent process. There is no doubt that the U.S. Supreme Court satisfies this feature of autonomous systems. Such recursivity was demonstrated in Part of 1.2.4 of
Chapter I on the basis of the U.S. Supreme Court's practice, and it is not necessary to return to it to make this point here.
11.1.1.4. The U.S. Supreme Court and the External Environment
The U.S. Supreme Court has operated as an autonomous system by carrying out a careful observation of the political, economic, and social external environments. Congress is an important element of the Court's external environment. Among the reasons for such observation is the fact that the design of important structural elements of the Court has been assigned to the U.S. Congress. Indeed, Article III of the U.S. Constitution provides that "the Supreme Court shall have appellate jurisdiction, both as to law and as to fact, with such exceptions, and under such regulations, as the Congress shall make."249
Therefore, the U.S. Congress is vested with the power to introduce changes to the structure of the Court if it so wishes.
Italics added. 107
It is important to say that this power has not merely been in the books; it has been exerted a few times to the detriment of the Court throughout its history. In ExParte McCardle the Supreme Court upheld the constitutionality of a legislation that was enacted by
Congress with the precise aim of preventing the Court from hearing a particular case, in which it had already asserted jurisdiction. The Court stated that it was not "at liberty to inquire into the motives of the legislature. We can only examine into its power under the
Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words."251
Perhaps the most blatant attempt to interfere with the operation of the U.S. Supreme Court was carried out by U.S. President Franklin D. Roosevelt. During his first period as
President, Roosevelt introduced social and economic legislation such as maximum working hours and minimum wages in many industries, aimed at mitigating the consequences of the Great Depression. The Supreme Court, which had been developing a consistent body of jurisprudence favouring the business community, was striking down such legislation.252 In his bid for the second term, Roosevelt made the New Deal a campaign issue and obtained a huge victory that gave him control over the U.S. Congress.
The New Deal legislation continued to be enacted and went before the Court, which kept striking it down. In order to change this situation, Roosevelt proposed to increase the
ZMJ ExParte McCardle, 74 U.S. 506,514 (1869). 251 Ibid. 252 See Louiseville Joint Stock Land Bank v. Radford, 295 U.S. 555 (1935), declaring unconstitutional New Deal legislation aimed at protecting farmers from the risk of seeing their farms foreclosed; Humphrey's Executor v. United States, 295 U.S. 602 (1935), declaring unconstitutional Roosevelt's removal of a member of the Federal Trade Commission for differences of views, Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935), declaring unconstitutional the Congressional delegation to the National Recovery Administration due to its vagueness and lack of limits on the Administration; Carter v. Carter Coal Co., 298 108 number of Justices of the Supreme Court, which would allow him to appoint six new members, sympathetic to his views and political program.253 The attempt failed completely in the U.S. Congress.
However, this was not the end of the confrontation, and despite the proof of support from
Congress for the Court as an institution, or perhaps because of it, the Court started changing its jurisprudence, ensuring the constitutionality of the New Deal legislation.255
The reason for this change is associated with the fact that Roosevelt did not have the opportunity to appoint additional Justices, but was able to replace two who retired.
Finally, Justice Roberts, who had supported the unconstitutionality of the New Deal legislation, switched his stance to support it and made it possible to overcome the political impasse.256 Ultimately, Roosevelt was able to appoint eight members of the Court due to
U.S. 238 (1936) [Carter], declaring unconstitutional maximum working hours and minimum wages in the coal industry for violation of the Commerce Clause. 253 For a description of the Court packing plan, see Rehnquist, Supreme Court, supra note 14 at 116-50. 254 The Senate Report concluded emphatically: This is the first time in the history of our country that a proposal to alter the decision of the court by enlarging its personnel has been so boldly made. Let us meet it. Let us now set a salutary precedent that will never be violated. Let us ... declare that we would rather have an independent Court, a fearless Court, a Court that will dare to announce its honest opinion in what it believes to be the defense of the liberties of the people, than a Court that, out of fear or sense of obligation to the appointing power, or factual passion, approves any measure we may enact. We are not the judges of the judges. We are not above the Constitution. S. Rept. No 711, 75* Congress., 1st Sess (1937). As quoted by Fisher, supra note 109 at 1036. 255 Among others, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), declaring constitutional minimum wages for women, and NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), declaring constitutional the regulation of labour relations in the steel industry. 256 Historians have said that Justice Roberts changed his views before U.S. President Roosevelt sent the Court-Packing plan to Congress. See Tribe, supra note 233 at 111. For a complete analysis of how the New Deal legislation was implemented and the strategies deployed by the Roosevelt administration before the Supreme Court, see Robert L. Stern, "The Commerce Clause and the National Economy, 1936-1946" (1945- 1946)59Harv. L. Rev. 645. 109 the deaths or retirement of previous Justices,257 and the approval of the New Deal
Legislation was assured.
With Congress having the power to alter the structure of the U.S. Supreme Court, it is virtually unavoidable for the Court to observe the external environment involved in each particular decision, and the Court has designed doctrines to avoid clashes with powerful political actors in particular. One is the political question doctrine already mentioned; the other is the presumption of constitutionality. According to a recent statement of the U.S.
Supreme Court in United States v. Morrison, using words virtually identical to the first formulations of the presumption, "Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds."260 But the Court has also developed other techniques aimed at accomplishing the same result. In a concurring opinion in Ashwander v. Tennessee Valley Authority, Justice Brandeis set out the following techniques:
(i) "The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it'"; (ii) "the Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.
257 See Rehnquist, Supreme Court, supra note 14 at 134-38. 258 It must be said that this is not the only reason why the U.S. Supreme Court observes its external environment. Its rulings have not only political consequences, but also social and economic ones, and in order to obtain what in the Court's eyes are the right consequences according to its policy determination, the Court must carry out a careful observation of the external environment. See Justice Brennan's statement in text accompanying note 119. 259 See James B. Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law" (1893) 7 Harv. L. Rev. 120 at 140. 260 United States v. Morrison, 529 U.S 598 (2000) [Morrison]. 261 Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345 (1936). As quoted by Geyh, supra note 108 at 227. Likewise U.S. Justice Felix Frankfurter stated: The restriction of our jurisdiction to cases and controversies within the meaning of Article III of the Constitution is not the sole limitation on the exercise of our appellate powers, especially in cases raising constitutional questions. The policy reflected in the oft-quoted 110
But this degree of deference to Congress by no means implies that the Supreme Court excessively fears Congress's attempts to impair the Court's jurisdiction or composition.
Although the weapon exists, it has been little used. Some authors have found that, when the Court has changed its positions, such changes have not been to respond to alterations in Congress's preferences.262
But the situation may not be the same regarding another powerful external actor: the U.S.
Attorney General. In particular, Segal, Spaeth, and Benesh found that the Court pays great attention to requests for certiorari issued by the U.S. Attorney General, which means that the Executive has a privileged access to the Court.264 But the Court does not stop here regarding the government. These authors identify a trend according to which the party supported by the Attorney General won the case 87% of the time in the years 1943, 1944,
1963, and 1965. Evaluations of decisions during the 1980s also indicate such a trend.265
statement of Mr. Justice Brandeis: 'The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. Poe v. Ullman, 367 U.S. 497,502 (1961), as quoted by Geyh, supra note 108 at 226. 262 For Segal, Spaeth and Benesh "most scholars who have systematically examined the question have found that the Court's statutory decisions change as its own preferences change, but not as congressional preferences change." Jeffrey A. Segal, Harold J. Spaeth & Sara C. Benesh, The Supreme Court in the American Legal System (Cambridge: Cambridge University Press, 2005) at 325 [Segal et. ai, Court & System]. 263 To be sure, one must be cautious about making far-reaching statements in this regard. The influence may vary from one issue to the other and from one specific point in time to another. This is due to changes of composition of the Court, changes in the U.S. Presidency and in the U.S. Congress, or changes in how issues evolve through time and how this evolution shapes the Court's views. 264 They say that "the evidence is overwhelming: Solicitor general requests for review enormously increase the probability of acceptance." Segal et. ai, Court & System, supra note 262 at 294. 265 See generally, Fisher, supra note 109 at 141. Ill
Another external actor that the U.S. Supreme Court has observed is public opinion.
Although Segal et.al. have found no evidence supporting the proposition that the Court has merely followed public opinion regarding specific subject matters,266 public opinion has played a role in the development of the Court's jurisprudence. According to one of its most recognized historians, the U.S. Supreme Court has operated with a close eye on the external political, economic, and social external environment of the time. McCloskey states, "The Court seldom strayed very far from the mainstream of American life and seldom overestimated its own power resources."267
In sum, accounts of the U.S. Supreme Court provide ample evidence supporting the proposition that it observes its external political, economic, and social external environment but is not entirely defined by it.
H.l.1.5. The U.S. Supreme Court and Luhmann's Requirements for the Existence of Its Autonomy to Self-Transform
It was shown in Part 1.2.6.1.2 of Chapter I that on the basis of Luhmann's theory some
Courts are able to introduce self-transformations when they satisfy three requirements: (i) they can adopt decisions about themselves; (ii) they have a menu of alternative options to choose from when adjudicating a case in which a self-transformation is at issue; and (iii) they can direct their autonomy to self-transform by being able to select the timing, scope, and rationale for each self-transformation, through the performance of their internal rules of collegial decision-making. It can be said that the U.S. Supreme Court satisfies these
See Segal et. ai, Court & System, supra note 262 at 328. McCloskey, supra note 84 at 247. 112 three requirements and that, therefore, it possesses autonomy to self-transform. To demonstrate this conclusion, this section will evaluate each of these requisites and will also show the major institutional alterations introduced by the Court to itself. The section ends with a discussion of the major constraints the Court faces when exercising the said autonomy.
II.l.1.5.1. The U.S. Supreme Court Adopts Decisions Regarding Itself
The U.S. Supreme Court is sometimes called on to adopt decisions that, in addition to affecting the parties to the dispute in question, have institutional consequences for the
Court. It was shown above in Part II. 1.1 of this Chapter that the Court is in the sole position to determine when a dispute before it is a legal dispute. On one side, this power allows it to preserve its identity as a judicial body, but on the other hand, it gives the Court the power to set its boundaries and, through interpreting what is a political question, to broaden or narrow the scope of its jurisdiction.
But not only can the U.S. Supreme Court interpret the scope of its jurisdiction, it is also in a position to interpret those provisions that exclude the jurisdiction of the Court. In at least one important case, the Court has interpreted narrowly such exclusions, thereby expanding its jurisdiction materially. The Eleventh Amendment of the U.S. Constitution prohibits suits against States. The U.S. Civil War of the mid-nineteenth century caused many
Southern states to accumulate significant amounts of debt, reaching US$ 200 million in
1883, in order to finance their military operations, which they could not honour once the 113 conflict ended. States were repudiating the debts on the assumption that the Eleventh
Amendment would prevent any suit against them. The Amendment provides that "the
Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another
State, or by Citizens of any Foreign State." Such suits were presented, and in 1883 the
U.S. Supreme Court found the Eleventh Amendment an invincible obstacle to forcing
States to pay their obligations.270 The business community was alarmed, given the prospect of municipal repudiation, and pressed even for a repudiation of the
Amendment.271 The proposal did not need to go far, because the U.S. Supreme Court changed its jurisprudence by narrowing the scope of the Eleventh Amendment and offered a solution to the problem in Poindexter v. Greenhow decided in 1885 Virginia had repudiated part of its debt by legislation.273 The Supreme Court overcame the Eleventh
Amendment hurdle in this decision by stating that a distinction had to be made regarding suits against States or their officials to force them to carry out an obligation of the State and regarding a suit against an official to recover damages for acts performed on the basis of unconstitutional State legislation.274 The Eleventh Amendment was not available in relation to the latter,275 and US Federal Courts, among them the U.S. Supreme Court, had
268 See Charles Warren, Supreme Court in U.S. History (Boston: Little Brown & Company, 1922) at 663 [Warren, History]. 269 See ibid, at 664. 270 Those cases were Lousiana v. Jumel, 107 U.S. 711 (1883), Cunningham v. Macon & Mrunswick, 109 U.S. 446 (1883), and New Hampshire v. Louisiana, 108 U.S. 76 (1883). See Warren, History, supra note 268 at 664-45. 271 See ibid, at 666. 272 Poindexter v. Greenhow, 114 U.S. 270 (1885). See Warren, History, supra note 268 at 667. 273 See ibid, at 667. 274 See ibid. 275 See ibid. 114 the power to compel State officials to honour States' obligations. The Court declared void and null Virginia's repudiating legislation. 76
This brief summary of examples illustrates that the U.S. Supreme Court adopts decisions that may have profound institutional implications for the Court as such as well as for the given parties of the case or the social, economic, or political groups benefited or harmed by the content of its self-transformations. There is little doubt that the Court satisfies this first requirement set by Luhmann when considering that a system possesses the autonomy to self-transform.
II.1.1.5.2. The U.S. Supreme Court Has a Set of Possible Alternatives to Choose From When Deciding Cases, Including Those In Which a Self- Transformation Is at Issue
It was illustrated above in Part 1.2.6.1.2 of Chapter I that, for a court to be able to self- transform, it must be in the position to make a selection regarding its self-transformation and that this is possible when the court has at its disposal a set of plausible alternatives to choose from in order to adjudicate a dispute in which an institutional transformation is at issue. All the elements supporting the existence of such set of alternatives are present in the U.S. Supreme Court.277 In effect, (i) language indeterminacy also applies to US legislation; (ii) the U.S. Congress is not expected to legislate with a perfect identification of the universe of possible situations that may arise when the Court decides disputes involving its own institution, leaving room for different views in this regard; (iii) the U.S.
Congress may over the years enact legislation that has a bearing on the Court and
276 114 U.S. 270, 305. 115 possesses different policy objectives, which leaves in the hands of the U.S. Supreme Court the task of determining how to make sense of all of them; (iv) the U.S. Constitution and legislation can be interpreted in very different ways, from the most strict originalism to the most pragmatic and policy-oriented approaches, which in themselves offer a variety of possible options to dispose of the case at hand and the institutional feature in question; and
(v) the Court's own jurisprudence regarding itself may be the subject of subsequent interpretation by Justices who did not take part in their deliberation and writing, by virtue of the recursive operation of the Court,279 and who have to interpret such prior jurisprudence in order to ascertain the scope of the institutional features of the Court. All these phenomena, whose presence in particular disputes may vary in importance, put together and carefully considered, offer the U.S. Supreme Court a set of persuasive options to choose from at the time it has to take a decision that has institutional implications for itself.
There is no need to repeat here what was already said in the previous chapter, and it is safe to say that the U.S. Supreme Court satisfies this second requirement established by
Luhmann as a necessary condition for the existence of the self-transformative autonomy of the Court; it has the power to choose the nature of its self-transformation.
277 See above Part 1.2.6.1.1 of Chapter I. 278 See Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence: University Press of Kansas, 1999). 279 In fact, they were presented in light of the U.S. experience. See above, Part 1.2.4 of Chapter I. 116
II.1.1.5.3. The U.S. Supreme Court's Steering of Its Autonomy to Self-Transform by Its Ability to Select the Timing, Scope, and Justification of Its Self- Transformations
As was mentioned in Part 1.2.6.1.3 of Chapter I, the third of Luhmann's requirements for a system to self-transform is that it steers the process through the operation of its internal rules of operation. It was also said that some courts direct their self-transformation process, because they decide the timing, extent, and rationale of the institutional change at issue through the performance of their collective decision making and in light of the past and ongoing relationship with courts, among other factors.
Part 1.2.6.1.3 of Chapter I illustrated the general framework of this third requirement.
Basically, it was shown that the collective decision-making process involves internal and external costs, as defined by Buchanan and Tullock. The functioning of the process in collegial courts results in internal costs associated with the bargaining and deliberation among judges in order to arrive at the final decision of the case in question. Justices bargain regarding which of the set of possible options to select in order to self-transform, the rationale thereof, and the nature and effects of the external environment associated with the case at hand. Part 1.2.6.1.3 also posited that the performance of the collegial decision-making process allows some courts to steer their self-transformation, because it permits them to select the scope, extent of, and justification for any institutional change self-introduced, even in the face of the three most extreme types of external environments a court may have to deal with: total indifference, majority opposition, or majority support. 117
As was illustrated, this is so because the collective decision-making process of autonomous courts allow them to incorporate not only information related to external factors relevant to the case at hand, but also the different preferences, backgrounds, and perspectives of the members of the courts, which are taken into consideration during the bargaining process leading to the rendering of the ruling in question. In this way, the collegial character of the courts brings in internal elements that compete with external factors, such that collegial courts will possess a greater degree of autonomy from external factors in the decisions they hand down.
The analysis of the U.S. Supreme Court's steering of its self-transformations will not duplicate all the discussion presented in the above-mentioned part. Instead, it will proceed with a description of the internal operation of the collegial decision-making process of the
Court and will provide some evidence to illustrate that the Court can select the timing, extent, and rationale of its self-transformations, through the operation of its collegial decision-making process.
On this basis, this sub-part will be divided into three sections. The first section will present the reasons why it can be claimed that the Court has operated as a collegial body since the beginning of its inception in the sense that US justices have always bargained regarding the above-mentioned issues. The second section will illustrate the contemporary decision-making process of the Court. Finally, the third section will display how the Court directs its processes of self-transformation by selecting the propitious moment and the 118 extent and justification of any change introduced by itself through the operation of its collegial internal rules of functioning.
II.1.1.5.3.1. The Collegial Decision-Making Process in the First Decades of the U.S. Supreme Court
The operation of the past and contemporary internal rules of operation of the U.S.
Supreme Court permits the argument that it did and does direct its process of institutional transformation in the sense just mentioned. In effect, the past direction of the Court's self- transformation can be found to exist because the Court has always been a collegial body; bargaining and deliberation among members have taken place since the early years of the
Court, and proof of this exists in dissenting opinions in important rulings of the time.
Indeed, during this time, the members of the Court expressed their own views regarding each case, so the public got the final Court decision in the form of separate opinions by each Justice. However, once James Marshall became Chief Justice, he put in place a strict rule according to which only he would speak for the Court.281 However, given the past practice, it is unlikely that only James Marshall's views were expressed in the rulings of the Supreme Court in those days and that, therefore, the other members played merely a
"decorative" role in the operation of the Court. Some evidence supports the conclusion that deliberation took place despite the significant influence that Marshall had over his colleagues. Indeed, Marshall wrote opinions that he had voted against, as Justice Johnson made clear in a letter to Jefferson:
See McCloskey, supra note 84 at 19. 119
While I was on our state-bench I was accustomed to delivering seriatim opinions ... and was not little surprised to find our Chief Justice in the Supreme Court delivering opinions in cases in which he sat, even in some instances when contrary to his own judgement and vote ...
So, even in the case of the Marshall Court, it is important to say that the internal decision making process, although led by Marshall, did not come up with rulings that reflected only
Marshall's views but the views of the Court as a whole. It is possible to envisage that a dominant figure of the Court is always in a position to impose her visions on the rest of her colleagues in all cases,284 up to the point that the Court is for practical purposes a single-judge institution. But this is unlikely and was not definitely the case of the U.S.
Supreme Court as the Marshall Court. Moreover, there were important dissenting opinions even in the Marshall Court. For instance, in the very important decision in Fletcher v.
Perk, 285 Justice Johnson wrote a separate opinion in favour of States' powers that were impaired in his view by this decision.286 In another significant decision, Trustees of
Dartmouth College v. Woodward, adopted in 1819, Justice Story wrote a concurring opinion, which further demonstrates the true operation of collegial decision making. In fact, after 1819, the unanimity of the U.S. Supreme Court ended, and a period of dissents
281 See ibid, at 25. See also in this regard Kevin M. Stack, "The Practice of Dissent in the Supreme Court" (1995 - 1996) Yale L. J. 2235 at 2238. 282 Quoted in Donald Morgan, Justice William Johnson (Columbia: University of South Carolina Press, 1954) at 181-82. 283 To show the level of influence that John Marshall had over his fellow Justices, it suffices to highlight that, as McCloskey shows, of the seven judges the Court had in Marshall's day, two were nationalist, Marshall himself one of them, and five were federalists. Nonetheless, he managed to set a nationalist imprint on the Court. See McCloskey, supra note 84 at 40. 284 See Murphy, supra note 78 at 40. 285 Part II. 1.1.5.3.4.2 below in this chapter provides a description and an assessment of this decision. 286 See George Lee Haskins, History of the Supreme Court of the United States, vol 2. Part One. (New York: MacMillan Publishing Co., Inc., 1981) at 344. For an analysis of this dissent, see Robert C. Palmer, "Obligations of Contracts: Intent and Distorsion" (1986-1987) 37 Case W. Res. L. Rev. 631 at 662. 287 Trustees of Dartmouth College v. Woodward, 17 U.S. (Wheat.) 517 (1819). 120 started that put even Marshall in a minority position and led him to write two dissenting opinions in Hudson and Smith v. Guestier and The Venus.
II.1.1.5.3.2. The Collegial Decision-Making Process of the U.S. Supreme Court in the Twentieth Century
The internal operation of the U.S. Supreme Court became more deliberative thanks to the changes introduced by Chief Justice Fuller at the end of the nineteenth century, allowing
Justices to circulate opinion drafts. Today the collegial operation of the Court has evolved towards a significant degree of deliberation and sophisticated, strategic behaviour by US Justices, which results in significant internal costs, as defined by Buchanan and
Tullock, since decisions are usually taken with the intervention of all nine members of the Court.
The internal decision-making process of the U.S. Supreme Court starts with the decision to grant certiorari in a specific case, which must be approved by four Justices. This stage constitutes the first element of direction by the U.S. Supreme Court, because the Court may well avoid a case with deep and controversial institutional implications for itself, even without justifying its determination not to hear the case. Indeed, pursuant to Rule 10 of the U.S. Supreme Court, a review of writ of certiorari "is not a matter of right, but of
2S* Hudson and Smith v. Guestier, 11 U.S. 1(1812). 289 The Venus, 12 U.S. 253 (1814). See Herbert A. Johnson, History of the Supreme Court of the United States, vol 2 Part Two. (New York: MacMillan Publishing Co., Inc, 1981) at 387. This analysis helps confirm that the two most important transformations made by the Court to its own institution under Marshall's leadership—namely, the judicial review of federal and state legislation—were carried out through the operation of a deliberating process, in which bargaining took place between U.S. Justices. 290 See Maltzman et al, supra note 180 at 99. 291 See above, Part 1.2.1.6.1.3.1 of Chapter I. 121
9Q9 judicial discretion." So a direction of the process of institutional transformation may well occur not in the final ruling, but at this preliminary stage if the Court decides not to take the opportunity offered by the case at hand to introduce institutional modifications to itself.293
However, if the case is chosen for certiorari, there is a phase of oral arguments in which parties present their case before the plenum of the Court.294 Subsequently, the Court gathers to openly discuss the case, and each Justice indicates the sense of her or his vote and its justification. This meeting allows the Court to gauge the view of its majority,295 although Justices may change their vote later in the process. Once an initial majority has been made to dispose of the case, the opinion-writing process begins, starting with the selection of the opinion writer. This is an important step, because of the agenda-setting character of the opinion draft:296 The first comprehensive analysis of the Court in the initial draft frames its further debate among justices. 297
If the Chief Justice is part of the majority, he has the right to assign the opinion to one of its members, included himself. If he is in the minority, the most senior associate Justice has the right to make the assignment.298 Once the assignment has been made, the opinion
292 See in this regard, Fisher, supra note 109 at 141. 293 This may be a wise strategy. See generally Peter Linzer, "The Meaning of Certiorari Denials" (1979) 79 Colum. L. Rev. 1127. 294 For a description of this phase, see Rehnquist, Supreme Court, supra note 14 at 224-38. 295 See Maltzman et al, supra note 180 at 7. 296 See ibid, at 33. 297 The importance of who is the opinion writer is evidenced by the following statement of a past U.S. Justice, Fortas, quoted by Maltzman et al. "If the Chief Justice assigns the writing of the Court to Mr. Justice A, a statement of profound consequence may emerge. If he assigns it to Mr. Justice B, the opinion of the Court may be of limited consequence." Ibid, at 8. 298 See ibid, at 7, 29,56. 122 writer circulates an opinion draft, and a full negotiating process starts between the opinion writer and her fellows in order to obtain the majority for the opinion.
Matlzman, Spriggs, and Wahlbeck provide a good insight into the U.S. Supreme Court decision-making process and the different tactics that its members engage in. For them,
"One cannot fully understand the decision making of any collegial court without researching the dynamics of judicial process and politics."
In any case, a majority of judges must be obtained for the Court to adopt a decision regarding the outcome of the particular dispute, and its rationale, which generally determines the legal grounds and the policy reasons of the result.300 This rationale serves public and private interests in assessing the scope of the ruling and its applicability in similar circumstances. William Rehnquist nicely recognized the bargaining process in the
U.S Supreme Court: "There must be an effort to get an opinion for at least a majority of the Court ... To accomplish this, some give and take is inevitable, and doctrinal purity may be muddied in the process."
This bargaining process in the U.S. Supreme Court, according to Maltzman, Spriggs, and
Wahlbeck, means that the judges' positions are partially influenced by those taken by their fellow judges and evolve throughout the subsequent phases of bargaining and
299 Ibid, at 152. 300 See ibid, at 153. 301 William Rehnquist, "Remarks on the Process of Judging" (1992) 49 Wash. & Lee L. Rev. 263 at 270 [Rehnquist, "Remarks"]. 302 See Maltzman et al„ supra note 180 at 121. In this sense, collegial decision making differs from collective deliberation in that in the former participants are to a great degree obliged to remain open minded to others' opinions, while this is not the case in the latter. See Jason Barabas, "How Deliberation Affects 123 deliberation. The bargaining tools at the disposal of judges are their votes, which can fall within the following range of options: endorsing in full the decision, concurring but expressing a different rationale in a separate opinion, or opposing the decision by means of a dissenting opinion.
The opinion writer needs to write a draft of the ruling that obtains the endorsement of at least the majority of the Court, and therefore, she is compelled to show receptivity to her fellows' main concerns, legal comments, or criticisms to a certain extent within the draft in order to obtain their support. The judge's decision about which comments to incorporate and to what extent depends on her calculation of how each of the other judges will respond to the writer's understanding of their positions regarding the issue and on how these positions are reflected in the draft.304 The process is a dynamic one in which changes to the draft are negotiated between the writer and the other judges.
For their part, the other Justices negotiate with the opinion writer in order to make sure that their views are incorporated in the ruling to the greatest extent possible. These judges may adopt strategies and issue threats aimed at achieving this objective. Their threats may be either to announce that a concurrent or a dissenting opinion will be annexed to the ruling or, in effect, to circulate a draft of a separate or dissenting opinion. Such threats or drafts by one judge may affect the bargaining process leading to the ruling, because, as
Policy Opinions" (2004) 98 Am. Political Science Rev. 687 at 689. Political scientists have found that collective deliberation may allow participants to acquire new information, so they change their initial position relating to a specific issue; though it may also be the case that a strong idea is reinforced after the deliberation, if the idea is embraced by other strong-minded fellows. See ibid, at 690. 303 These phases depend on the internal procedure in which the judges intervene in order to write the court's ruling. 304 See Maltzman et al„ supra note 180 at 98. 124 is the case in the United States Supreme Court, her fellows may not endorse the writer's draft until they have access to the concurring or dissenting draft.306
The writer for her part may also respond to these threats by attempting to rewrite her draft in a way that satisfies the judges who have announced a concurring or dissenting opinion or handed out a draft of either of this sort. Sometimes it may be enough for any of her fellows simply to threaten or to write a separate opinion, while in other cases an effective circulation of a draft of this type may be required in order to achieve the incorporation of the specific judge's views in the ruling. The U.S. Justice Antonin Scalia says that "the first draft of a dissent often causes the majority to refine its opinion, eliminating the more vulnerable assertions and narrowing the announced legal rule."
The opinion writer must be under pressure to accommodate the concerns reflected in any of these separate drafts if she has not obtained the majority yet, but again the bargaining process is one of calculation. The writer knows that she is expected to respond neither to all of her fellows' concerns nor to the full extent desired by her colleagues, so it is always a matter of a strategic assessment regarding how far to go.309
If the opinion writer receives the approval for her draft by some of her fellows but not of a
majority of them, she needs to convince others to join and is under even more pressure to
305 See ibid, at 66-70. 306 See ibid, at 63. 307 See ibid, at 122. 308 Antonin Scalia, "The Dissenting Opinion" (1994) Journal of the Supreme Court History 33 at 41, as quoted by Maltzman et ah, supra note 180 at 107. 309 See ibid, at 98. 125 positively respond to the reluctant judges with whom she is still bargaining by way of further changes to her draft, while at the same time making sure those changes do not alienate the judges who had previously committed to support the opinion. However, elusive judges do not possess limitless power to seek more changes, because they do not know when others of the group will join the draft and make a majority, and once the majority is formally obtained, the remaining elusive judges considerably lose their power to pressure, given that the writer no longer requires their endorsement. Then it is up to them to decide whether or not to write a concurring or a dissenting opinion.
The bargaining may continue, however, if the rule for adoption is unanimity, which makes the process more troublesome and raises internal costs, because the writer must keep negotiating changes with the unconvinced colleagues. The negotiating process may even lead the opinion writer to vote for a solution that she disfavours, just because of the need to preserve her capacity as opinion writer in the case. As Maltzman et al show, this situation was at the heart of Justice William Brennan's behaviour in Pennsylvania v.
Muniz. He had been a permanent supporter of civil rights but ended up voting for an exception to one of them in this case. The strategic reason for that was revealed in a memo he sent to one of his colleagues, Thurgood Marshall, in which he confessed:
Everyone except you and me would recognize the existence of an exception to Miranda for 'routine booking questions,' ... I made the strategic judgement to concede the existence of an exception but to use my control over the opinion to define the exception as narrowly as possible.313
310 See ibid, at 105. 311 See ibid, at 70 & 129. 312 See ibid, at 121. However, the attaining of majority may not mean the end of the bargaining process if the writer thinks that a full court endorsement is convenient, so she will keep bargaining with the elusive judges even after her draft has received majority support. 313 As quoted in ibid, at 3. 126
As can be seen, the internal decision-making process of the U.S. Supreme Court operates as an important source of direction over the result and justification of each case. The final decision is then the result of intense debate and bargaining among the members of the
Court, which at the end allows the Court to determine the timing of the decision of self- transformation, its ambit, and justification. In sum, as Maltzman et al maintain :
[T]he opinion writing process is a strategic, interdependent process with responsive accommodation resulting in part from the signals sent by other 314 justices. [T]he final Court opinions cannot be exclusively attributed to justices' strict reading of the law, simple accounting of justices' policy preferences, or strategic calculations about the response (or non-response) of political actors exogenous to the Court. The hallmark of this approach is its focus on the interdependencies inherent in judicial decision making. To achieve policy outcomes as close as possible to their own preferences, justices must at a minimum take into account the choices made by their colleagues, with whom they must negotiate, bargain, and compromise.31
US Chief Justice William Rehnquist described this process in the following terms:
"[J]udging inevitably has a large individual component in it, but the individual contribution of a good judge is filtered through the deliberative process of the court as a
Having shown the nature of the internal collegial decision-making process of the U.S.
Supreme Court, it is now time to display how the operation of this process has permitted the Court to select the timing, scope, and justification of its self-transformations, thereby allowing the Court to steer its self-transformative autonomy.
Ibid, at 121. Ibid, at 17. 127
II.1.1.5.3.3. The U.S. Supreme Court's Selection of the Time, Scope, and Justification of Self-Transformations
The U.S. Supreme Court steers its autonomy to self-transform by determining through its collegial decision-making process the extent, timing, and rationale of each of its self- transformations. However, it is important to say that direct evidence that shows that each of the U.S. Justices concretely bargained about the timing, extent, and particular rationale of a particular self-transformation is not available, at least with regard to the self- transformations analyzed in this thesis: the creation of the judicial review of first federal and then state legislation. In consequence, this requirement will be demonstrated with the use of indirect evidence based not on what U.S. Justices say, but on what the U.S.
Supreme Court does and did. To this end, this section will provide examples of self- transformation and non-self-transformation cases that reveal that the U.S. Supreme Court has directed the scope, the timing, and the justification of certain rulings, which provides evidence that it does the same regarding decisions involving self-transformations, which is completely rational, since the Court itself is affected by its own decisions. Finally, given that these rulings resulted from the operation of the collegial decision-making process of the U.S. Supreme Court, it follows that the steering of the self-transformations was determined through such operation.
In order to illustrate this, this section will present an example of how the Court directed the scope of its transformation when it created for itself the judicial review of legislation, the most important self-transformation carried out by the Court, which resulted from the
Rehnquist, "Remarks", supra note 301 at 270. 128 collegial decision-making process of the time and which will be analyzed in some detail below in Part II.l.1.5.3.4 of this chapter. Then, this section will illustrate a case in which the Court selected the timing for its ruling regarding an important social subject- matter. It is not a case in which a self-transformation was at issue, but, to reiterate, it reveals the fact that the Court controls the opportunity to pronounce on certain matters, which also evinces the possibility of doing the same with regard to self-transformative decisions. Both examples were the result of the collegial decision-making process of the
Court, and therefore, it is possible to say that the selection of the extent and of the timing of these decisions was made through the operation of the said collegial process.
As regards the steering of the scope of self-transformations, some historians have suggested that the members of the U.S. Supreme Court acted cautiously in introducing the judicial review of legislation. This review regarding federal legislation was first created by the Court in Marbury v. Madison, and its expansion to include state legislation took place in Fletcher v. Peck.319
In Marbury, the Court could well have declared the existence of the judicial review of federal and state legislation; however, it decided in this case to deal only with the former.
Although it planted the seeds of the latter, the members of the Court left the expansion of the judicial review to also cover state legislation for a specific occasion in which a norm
317 If there is no a significant familiarity with the creation of the judicial review, it may well be convenient to proceed first to Part II. 1.1.5.3.4 of this chapter. 318 Marbury v. Madison, 5 U.S. (lCr.) 137 (1803) [Marbury]. 319 Fletcher v. Peck, 10 U.S. 87 (1810) [Fletcher].A full analysis of these self-transformations is provided below in Part II. 1.1.5.3.4 of this chapter. Here, it suffices to show how the Court introduced them on a step- by-step basis. 129 of this character was directly at issue, which it did in Fletcher. The steering of the extent of the self-transformation in the sense that it was adopted on a step-by-step basis can be derived from the following analysis carried out by McCloskey:
The decision [Marbury] does suggest... that Marshall, though choosing the path of discretion in the immediate occasion, did not for a moment forget the long- term objectives—enhancement of judicial power in general and diminution of state autonomy in particular. The relevance of the Marbury case to the struggle against state autonomy is easy to miss, because the Chief Justice's specific target is a national statute. But the argument for holding an unconstitutional law void is phrased in very broad terms, and it applies equally whether the enacting body is Congress or a state legislature ... Marbury is ... not ... a digression from the long-run struggle against excessive localism; on the contrary, it is a crucial skirmish in that campaign, for when state laws are later judicially challenged, the precedent of Marbury stands ready to back up the challenge.320
But the Court not only steers the extent of its self-transformations, it also steers their timing. Such steering can be inferred from evidence suggesting that the Court selects as well the opportunity of transformations affecting its external environment. For instance, regarding the issue of racial discrimination in the U.S., right after the Supreme Court's decision in Brown in 1954,321 a case concerning Virginia legislation prohibiting mixed marriages was put before the Court. After carrying out its collegial decision-making process, the Court decided not to grant certiorari because it would have further infuriated the Southern states. The Court waited ten years before it declared state legislation of this character unconstitutional. Fisher describes this selection of the timing and extent of the transformation of the social external environment of the Court in the following terms:
In 1955, the Court received a miscegenation case from Virginia. Rather than strike down a law against mixed marriages, the Court decided to dodge this socially explosive issue. The Court's ruling on desegregation in 1954 prompted opponents to predict that integrated schools would produce 'mongrelization' of
McCloskey, supra note 84 at 28. See Brown, supra note 98. 130
the white race. A state court, in upholding the Virginia statute, said that natural law forbade interracial marriage ...
The Supreme Court quickly returned the case to Virginia, giving time for its ruling to establish itself as the law of the land. Nairn v. Nairn, 350 .S. 891 (1955). A decade later, a unanimous ruling held that Florida's statute prohibiting the cohabitation of unmarried interracial couples, singling them out for punishment, was a denial of protection. McLaughlin v. Florida, 379 U.S. 184 (1964). By 1964, with the Civil Rights Act of 1964 in place, the Court was prepared to strike down miscegenation laws and did so unanimously. It pointed out that fourteen states in the previous fifteen years have repealed laws prohibiting interracial marriages. Contemporary public opinion, operating through legislatures, thus played a part...
If the Court, after the operation of its collegial decision-making process, selects the timing, scope, and rationale of transformations affecting its external environment, it is possible to infer that it does the same today regarding its self-transformations. More generally, referring to the whole jurisprudence of the Court, McCloskey makes this situation clear when he states that, for the U.S. Supreme Court, "the judicial empire, if there was to be one, had to be conquered slowly, piece by piece. An idea could be implied today, obliquely stated tomorrow, and flatly asserted the next day."
Thus, the most important elements of any decision are carefully crafted in a deliberative process involving negotiations with the combined intervention of nine independent and usually strong individuals,324 which leads to the emergence of a majority decision in
Fisher, supra note 109 at 826. McCloskey, supra note 84 at 23. In effect, referring to the U.S. Supreme Court, Murphy maintains that [Obtaining a majority for a decision, however, is relatively easy compared with the problem of getting five or more intelligent, strong willed and individualistic Justices to agree in whole with an opinion written by one of their number. The degree of difficulty is likely to increase with the importance and complexity of the issues which the case presents
Murphy, supra note 78 at 23. 131 which the timing, scope, and rationale of the self-transformation at issue is determined, thereby steering the Court's self-transformation process.
As can be seen, it is possible to argue that the U.S. Supreme Court satisfies the three requirements that, according to Luhmann, must be met for an autonomous system to have autonomy to self-transform.326 Indeed, the Court is able to take decisions about itself, can select the self-transformation from a set of persuasive alternatives of interpretation of the applicable legislation, and steers the process of self-transformation by determining the timing, scope, and justification of any new institutional feature in light of the past and ongoing relationship with relevant external actors, through the operation of its collegial decision-making process in the sense that the decisions referred to result from a such a process.
Having said this much, this thesis proceeds to assess in more detail the main self- transformation introduced by the U.S. Supreme Court: its establishment as a powerful institutional actor within the U.S. through the creation of the judicial review of legislation.
325 It is important to recall that the effect of this collegial decision-making process is not restricted to the U.S. Supreme Court's decisions regarding institutional self-transformations, but it also extends over other subject-matters. 326 It should be borne in mind that this thesis does not purport to demonstrate that the U.S. Supreme Court is in itself an autonomous system, but only that there is evidence suggesting that it operates like one, which is a proposition of much less ambition. 132
II.1.1.5.3.4. The Self-Transformation of the U.S. Supreme Court: The U.S. Supreme Court as a Powerful Institutional Actor
The powerful institution the Court has been during the last century and a half is something that would have surprised the founding Members of the U.S. had they risen from their graves today. At its inception, it was not envisaged that the U.S. Supreme Court would have an important role. In fact, on February 2, 1790, the day when the Court started its functions, two of its appointees declined the honour. Robert Harrison did so because, in his view, being a chancellor of Maryland was a more important position, and John
Rutledge resigned to become chief justice in South Carolina.327 In other words, state justices were regarded as being more important than those seated on the Supreme Court.
This was understandable, given that there were uncertainties regarding whether the U.S.
MO
Constitution created a league of nations or a single State. In practical terms, states were still powerful actors, and the federal State still had a long way to go to find its place within the existing institutional and political framework.
Alexander Hamilton said that, among the three branches of the State, the judicial was the least dangerous of all. His words have come to symbolize the magnitude of the institutional change undertaken by the U.S. Supreme Court since its creation. He said:
Whoever attentively considers the different departments of power must perceive, that, in which they are separated from each other, the judiciary, for the very nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in the capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the
See McCloskey, supra note 84 at 2. See ibid, at 3. 133
sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever ...
The U.S. Supreme Court was established as a mere judicial body, although an important one, to operate essentially as an appeal Court, dealing mostly with particular cases without significant impact beyond issues affecting the respective parties. However, the institutional dynamics of the Union called upon the judiciary to perform a more active institutional role, because, from the very creation of a Federal State, conflicts regarding the scope of states' prerogatives and up to what point the Federal State could encroach on the states would plague the Court. Not only was this an important issue, the very institutional construction of the Federal State was also a matter for the Court to decide, when those favouring more powerful states complained about the aggrandisement of the
Federal State.
Such pre-eminence is due obviously to a significant number of factors, but paramount among them is Chief Justice Marshall and the role he played in locating the Supreme
Court at the centre of the U.S. political and institutional processes. Indeed, the late
William H. Rehnquist pointed out:
[W]hen he was appointed in 1801, he found the Supreme Court functioning much like the highest court in England, supervising a judicial system designed to resolve disputes between individual litigants. He left the Court a genuinely coequal branch of a tripartite national government, having added to its normal functions the awesome responsibility of being the final arbiter of the meaning of the United States Constitution. He found the national government with its fate as yet determined by any binding judicial interpretation as to the extent of its powers. He left a limited but strong central government equal to the large tasks that would confront it.330
Alexander Hamilton, The Federalist (Cambridge: Belknap Press of Harvard University Press, 1966) at 490. 330 Rehnquist, Supreme Court, supra note 14 at 40. 134
Being catalogued as the least dangerous branch of government is not a good institutional start for a judicial body, and the Supreme Court took two decades to adopt a definitive step to transform itself by establishing the judicial review of federal legislation. Since then, the U.S. Supreme Court has dealt with the greatest challenges and trends that U.S. society and its institutions have faced. Initially, the Court had to deal with the very problem of creating a Nation State, followed by the challenges of responding to the incredible expansion of the U.S. economy in the nineteenth century and the origin of the regulatory State, and third, the emergence of the civil rights revolution and of the active role of the State in making these rights effective. In all these areas, the Supreme Court has contributed to shaping the legal framework of the U.S. The Constitution provided some guidance, but the room for its interpretation was so wide that nobody could conceivable argue today that, as Marshall himself stated quite paradoxically, "Courts are the mere instruments of the law, and can will nothing".
This thesis turns to present the more important transformation introduced by the U.S.
Supreme Court to itself: the creation of the judicial review of legislation.
II.1.1.5.3.4.1. Marbury v. Madison and the Judicial Review of Federal Legislation
By its ruling in Marbury™ the U.S. Supreme Court decided that it had the power to review federal legislative acts. This was the first and, until today, the most important self-
331 Osborn v. Bank, 9 Wheat 738, 866 (1824), quoted by Miller, supra note 93 at 4. 332 Marbury, supra note 318. 135 transformation carried out by the Court. Marbury was the first time in which the Supreme
Court struck down an act of Congress, served as a model for judicial review worldwide, planted the seeds of the supremacy of the U.S. Constitution, and imposed restrictions on the U.S. Congress and states that nobody at the time of the ratification of the Constitution by the original states of the Union had expected would exist.
In Marbury, the Court had to resolve the issue of whether it had to apply federal legislation that was unconstitutional. U.S. Chief Justice John Marshall's analysis is a model of impeccable reasoning, and his decision provided what law could not by itself: a solid basis on which un-elected judges could strike down federal law enacted by people's representatives. The Court stated:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. ... The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.
The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any
According to McCloskey, this ruling had a precedent, Hayburn (2 Dall. 409 (1742)), in which the possibility of unconstitutional legislation was found for the first time. See McCloskey, supra note 84 at 20- 21. 334 See infra text accompanying note 346. 136
legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. ...
Then, the Supreme Court proceeded to analyze whether or not it could apply unconstitutional legislation to adjudicate cases. It said:
If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? ... If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. .. .336
On this basis, the U.S. Supreme Court created the judicial review of federal legislation, without much controversy in 1804337 given that the Federal State was in construction and states still held considerable importance within the U.S. political and institutional landscape.338 Undeniably, it was a significant ruling for states, then a powerful political actor, because it imposed a material limit on Congress. But important for the purpose of this thesis is the fact that it was a transformation that the Court made for itself, demonstrating that it had the power to determine the scope of its own jurisdiction.
The complex political circumstances surrounding the creation of the judicial review of federal legislation indicate that such creation was the only way to resolve the ongoing clash between the Court and the U.S. President, and the Court's response illustrates how it decided this case with a careful eye on its external environment. When Marbury was put before the Court for decision, the U.S. Congress passed legislation postponing the next
335 Marbury, supra note 318. 336 Ibid. 337 See Rehnquist, Supreme Court, supra note 14 at 34. 137 session of the Supreme Court for one year, apparently fearing its decision. The U.S.
Supreme Court was able to transform itself in a way that avoided a clash with Jefferson. A historian of the U.S. Supreme Court says:
From a political standpoint, Marshall's opinion has been considered as both expedient and tendentious, in that the ultimate refusal to grant Marbury's petition avoided a head-on collision with Jefferson, who had ordered that Marbury be denied his commission. A decision in favor of Marbury would have resulted in a direct confrontation between the power of the Presidency and the power of the Court. ... this was a confrontation that would have been ill timed. ... The position of Marshall and also of the Court, was precarious, and a decision in favor of Marbury would hardly have been welcomed. Moreover, the House of Representatives, at the beginning of the 1803 session, had impeached District Judge John Pickering, and already definite plans were afoot to impeach Judge Chase of the Supreme Court. There were open threats by the Republicans to impeach Marshall himself if he were to decide in favour of Marbury.
In this political climate, it was perhaps particularly understandable that Marshall should seize the opportunity to write an opinion that would avoid a political confrontation by turning to and relying upon the less controversial doctrine of judicial review.340
The U.S. Supreme Court's self-transformation in Marbury deserves a further analysis, in the sense that it could be labelled as a transformation forced, not imposed, by the political external environment of the Court at the time of the ruling. It was not imposed, because the Executive and Congress certainly did not press the Court to create the judicial review of legislation; however, the self-transformation was forced by the external environment, because it was the only way possible to avoid a clash with the then U.S. President and the dominated Congress. Finally, it can be highlighted that the fact that the Court felt
338 See ibid, at 36. 339 See Haskins, supra note 286 at 184. 340 See ibid, at 185-86. Glennon holds a similar view. He says: Chief Justice John Marshall's cunning decision in Marbury saved the United States Supreme Court. Ultimately, the decision enhanced its power, laying the groundwork for the establishment of judicial supremacy ... 138 compeled to self-transform does not impair the finding that in this circumstance it was exerting its autonomy to self-transform, because the Court still had freedom to set the scope and rationale of the creation of the judicial review, which it did in a way that planted the seeds of its subsequent self-transformation: the creation of the judicial review of state legislation, as McCloskey pointed out,341 and as will be illustrated in the next section.
II.1.1.5.3.4.2. The U.S. Supreme Court and the Judicial Review of State Legislation
More challenging for the U.S. Supreme Court of the nineteenth century was to decide the question of whether it could also declare state legislation unconstitutional. The question was troublesome for the Court, because states retained significant power at the time of the dispute in which the Court answered this question in the affirmative. Fletcher set the tone for this significant institutional step forward. The facts of this case are generally known as the Yazoo land-grant scandal. Georgia had sold at a ridiculously low price an immense portion of land that consisted of most of today's Alabama and Mississippi. It was later discovered that, with the sole exception of one individual, the members of Georgia's legislature who had voted for the sale had been bribed. A newly elected legislature enacted legislation rescinding the grant, but by the time it did so, the original purchasers had already sold millions of acres to innocent third parties.
Michael J. Glennon, "Protecting the Court's Institutional Interests: Why Not the Marbury Approach? (1987) 81 A.J.I.L. 121 at 121. 341 See supra text accompanying note 340. It will be shown below in Part II.2.1.5.1.7 of this chapter how the International Court of Justice has also self-transformed in a particular case, compelled by the situation of the external environment. 139
Georgia's revocation of its legislation was declared unconstitutional for violating the
Contract Clause provided for in Article I Section 10 of the U.S. Constitution, the first time in which a state legislation suffered this fate.344 There, Marshall said:
"[G]eorgia cannot be viewed as a single, unconnected sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is part of a large empire; she is a member of the American Union; and that Union has a constitution the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass."345
But critical for the analysis of this thesis is that the U.S. Founding Fathers did not have a
Supreme Court of this institutional stature in mind when they created it and that the self- transformations made by the Court under Marshall's leadership—particularly the judicial review of state and federal legislation—were made from within, as autonomous systems do today according to Luhmann and Teubner. McCloskey supports the view that a judicial review power constituted a transformation of the Court that was not in the U.S. Founding
Fathers' minds:
[W]as there anything in the Constitution to guarantee that the Supreme Court's opinion would prevail, that the Supreme Court authority was superior to state courts? Or suppose, to carry the matter a step further, that the state had held a federal law invalid as conflicting with the national constitution and the Supreme Court agreed with this holding, thus asserting its authority to overthrow an act of Congress. Does the Constitution make it clear that the
Fletcher, supra note 319. 343 For a complete description of the facts of this case, see Haskins, supra note 286 at 339-45. 344 Gary Hartman, Roy M. Mersky & Cindy L. Tate, Landmark Supreme Court Cases. The Most Influential Decisions of the Supreme Court of the United States (New York: Facts on File, Inc., 2004) at 143. 345 McCloskey, supra note 84 at 33. Apparently, in an effort to calm potential fears that the U.S. Supreme Court would easily declare unconstitutional federal or state legislation, the Court stated: The question whether a law be void for its repugnancy to the constitution is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligation which that station imposes. But it is not on slight implication and vague conjecture that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. As quoted by Haskins, supra note 286 at 352. 140
Court has his final authority of "judicial review" over national legislative enactments?
The answer for these questions is a fairly solid "no". ...
In short, neither the words of the Constitution nor the provable intent of those who framed and ratified it justified in 1790 any certitude about the scope or finality of the Court's powers to superintend either the states or Congress. The most that can be said is that the language and intent did not preclude the Court from becoming the puissant tribunal of later history.346
A U.S. Justice, Learned Hand, said in 1958 that the U.S. Supreme Court judicial review is
"not a logical deduction from the structure of the Constitution but only a practical condition upon its successful operation."347 Lawrence Tribe holds a similar view. For him,
"On this fundamental issue ... the Constitution is indeterminate."348 349
Obviously, this is not to say that judicial review of legislation was a complete novelty and
-2cr\ never in the minds of any of the framers of the U.S. Constitution. Such conclusion would not be supported by the historical perceptions at the time of its ratification.
However, what it is important to highlight here is the fact that the judicial review of federal and state legislation was a feature that the U.S. Supreme Court introduced on its
346 McCloskey, supra note 84 at 4-5. 347 Learned Hand, Holmes Lectures (1958) as quoted in Raoul Berger, Congress v. the Supreme Court (Cambridge: Harvard University Press, 1969) at 6, n. 23. 348 Tribe, supra note 233 at 22. 349 For an evaluation of Marbury see the oft-cited article by William W. Van Alstyne, "A Critical Guide to Marbury v. Madison" (1969) 18 Duke L. J. 1. 350 The framers were aware of Coke's statement in 1610: "When an Act of Parliament is against common right and reason ... the common law will control it and adjudge such act to be void." Quoted by Berger, supra note 347 at 23. 351 Indeed, at this time, the U.S. people and the states feared that Congressional power would be so broad that it would embark on "legislative despotism," so the Constitution had to have some control on Congress, and the seeds of judicial review were discussed. (See ibid, at 2). Specifically, during the Virginia convention, George Nicholas, answering the question regarding who would determine the scope of Congress's powers, stated that "the same power which in all well-regulated communities, determines the extent of legislative powers. If they exceed these powers, the judiciary will declare it void." (Ibid, at 2). 141 own. This feature was explicitly provided for neither in the U.S. Constitution nor in the extant legislation related to the Court. The Court expanded its own jurisdiction thanks to the power it had to adopt decisions regarding itself and, in particular, to determine such jurisdiction. In that way, the court acted in ways similar to those of autonomous systems today.
Having shown that the U.S. Supreme Court meets Luhmann's three requirements for possessing autonomy to self-transform and has in fact exerted itself to erect itself as a powerful actor within the U.S. State and society, this thesis moves on to display the main constraints the Court faces in the deployment of the said autonomy.
II.l.1.5.4. Restrictions on the U.S. Supreme Court's Self-Transformative Autonomy
It was seen in Part 1.2.6.2 of the previous chapter that autonomous courts do not have an unfettered autonomy to self-transform and that the external environment and even the collegial decision-making process of some courts may act as a powerful constraint every time an issue raised by parties for their own benefit also has institutional repercussions for courts.
Certainly, this is also the case of the U.S. Supreme Court, despite the fact that the U.S.
Constitution contemplates perhaps the strongest protection a judge may enjoy in terms of her independence: lifetime tenure. Although some have assumed that life tenure allows
Others made similar statements, such as Samuel Adams in the Massachusetts convention, and Oliver Ellsworth in the Connecticut convention. See ibid, at 15. 142 justices to decide virtually at will, it cannot be deduced from this protection that the
Court as a whole can act at will. Indeed, the Constitutional protection accorded to U.S.
Justices individually for their decisions does not equate to the invulnerability of the
Supreme Court to institutional changes introduced by the U.S. Congress in response to the
Court's rulings. The Court as an institution has real constraints. From a neo-institutional perspective, Maltzman, Spriggs, and Wahlbeck stress the existence of these constraints with regard to the Court. They say that "Justices ... are strategic actors who take into consideration the constraints they encounter as they attempt to introduce their policy preferences into the law. ..."353
The external environment is a first source of formal constraint, particularly the political external environment. The history of the U.S. Supreme Court is already long enough to have experienced the vicissitudes of defying powerful political actors and how they may respond against the Court. The prosecution of Justice Chase in the nineteenth century,354
Roosevelt's unsuccessful Court packing plan a century later,355 and the enactment of legislation aimed at preventing the Court from hearing a particular case, Marbury,356 are
352 There is a trend amongst U.S. scholars on judicial decision making within the U.S. Supreme Court, the attitudinal approach, which argues that the judges of this court simply follow their preferences without caring too much about Congress's reaction to their rulings. Segal found little evidence of shifts in the U.S. Supreme Court in response to changes in the Presidency or of the dominant party within the US Senate or House of Representatives, given the difficulty of passing overriding legislation and the US Justices' lifelong tenure. See Jeffrey Segal, "Supreme Court Deference to Congress: An Examination of the Marksist Model" in C. Clayton & H. Gillman, eds., Supreme Court Decision Making New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 237. 353 F. Maltzman, J. Spriggs & P. Wahlbeck, "Strategy and Judicial Choice: New Institutionalist Approaches to Supreme Court Decisions" in Clayton & H. Gillman, supra note 354, eds., Supreme Court Decision Making New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 43 at 46,47. 354 See supra text accompanying note 208. 355 See supra text accompanying note 253. 356 See supra text accompanying note 339. 143 three examples in which attempts have been made by political actors to rein in the Court.
By no means have these efforts been forgotten.
The operation of the Court, particularly in the middle of the nineteenth century, as described by Chief Justice Rehnquist, suggests that external actors occasionally had an important role in shaping the Court's decisions that would be unacceptable in contemporary days. For instance, the interplay between partisan politics and judicial activity was particularly intense in relation to the Court's ruling in Dred Scott. There, a member of the Court, Justice Catron, wrote paragraphs related to the dispute for President
Buchanan's speech, and the President himself wrote a letter to another member of the
Court, Justice Grier, suggesting to him that the decision should involve a determination regarding the constitutionality of the Missouri compromise.358 The letter may have
•ICQ accomplished its goal, since the Court declared the compromise unconstitutional.
But in addition to the constraints provided by the external environment, it was also mentioned in Part 1.2.6.2.2 of Chapter I that the decision-making process of collegial courts operates as another important restriction on courts' self-transformative capacity.
The internal rules of operation of the U.S. Supreme Court also have this restraining effect.
Without having to return to this point in detail, it suffices to quote US Justice Scalia. He
357 Although, according to the French historian Michel De Certeau, historians have the power to determine what remains to be remembered and what must be forgotten (Michel De Certeau, "Escrituras e Historias" in Francisco Ortega, ed., La Irrumpcion de lo Impensado (Bogota: Editorial Pontificia Universidad Javeriana, 2004) 129 at 132). U.S. scholars have decided that these three issues must always be in the frontline of any complete history of the U.S. Supreme Court. With this raw fact, lawyers are fully aware of this constraining effect in their minds right from the first days in law school, and one should not assume that they will set aside this powerful imprint once some of them become mature and are appointed to the U.S. Supreme Court. 358 See Rehnquist, Supreme Court, supra note 14 at 60. 359 See ibid, at 61-62. 144
describes the delight of writing a dissent and reveals the pains of writing an opinion that
can get the endorsement of the majority of the Court:
To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less differing views of one's colleagues; to address precisely the points of law that one considers important and no others; ... that is indeed un unparalleled pleasure.360
As was mentioned in Chapter I, certain self-transformations may not materialize, due to the strong opposition from within the Court itself. For instance, one may speculate that the
U.S. Supreme Court's rulings in Louisiana v. Jutnel, Cunningham v. Macon &
Brunswick, and New Hampshire v. Louisiana, regarding the impossibility of suing
states on the basis of the Eleventh Amendment, was the result of internal majority
opposition to self-transform.364 The debate existed, and it is evidenced by the strong
dissenting opinions written by Justices Field and Harlan. It could then be assumed that
the internal constraints were one of the major obstacles to self-transformation at the time
of the issuing of such decisions.
Finally, the fact that the U.S. Supreme Court cannot bring cases on its own and therefore
cannot set an agenda for self-transformation, which constitutes a restriction to such
autonomy, was nicely recognized in general terms, wholly applicable to self-
360 Scalia, supra note 308 at 42. U.S. Justice Oliver Holmes held the same view: "One of the advantages of a dissent is that one can say what one thinks without having to blunt the edges and cut off the comers to suit someone else." Both quotations are taken from Lawrence Baum, Judges and Their Audiences. A Perspective on Judicial Behavior (Princeton and Oxford: Princeton University Press, 2006) at 41. 361 Lousiana v. Jumel, 107 U.S. 711 (1883). 362 Cunningham v. Macon & Brunswick, 156 U.S. 400 (1895). 363 New Hampshire v. Louisiana, 108 U.S. 76 (1883). 364 See supra text accompanying note 270. 365 See Warren, History, supra note 268 at 664. 145 transformation cases, by U.S. Justice William Brennan. Asked whether the certiorari stage allowed the Court to set an agenda, he stated:
[W]e do not set a legislative agenda ... Whether a given case is to be given plenary review depends on whether four of the nine of us think that the issue is of sufficient importance that we ought to give it plenary review. I may have one reason for thinking it should be and another colleague who decides it ought to be heard may have a different reason. But we don't sit down and lay out any agenda. It's just as the cases come along.
So far, this thesis has attempted to demonstrate that the U.S. Supreme Court satisfies all of the requirements derived from Luhmann's theory to operate as an autonomous system, and particularly, that the Court possesses a certain degree of autonomy to self-transform and that it has exerted such autonomy. The next section will assess the last of these requisites and will illustrate how the Court has contributed to the evolution of other U.S. institutions, in particular the U.S. Federal State, as an expression of the co-evolutionary
'l fin character of autonomous systems. In order to do so, this thesis will depict how the U.S.
Supreme Court has strengthened the U.S. Congress and the U.S. Federal Administration, headed by the U.S. President.
William Brennan, "Interview" in Garry Sturgess & Philipp Chubb, eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988) 310 at 313. 367 See above Part 1.1.6 and Part 1.2.7 of Chapter I. 146
II.1.1.6. The U.S. Supreme Court's Influence over External Autonomous Systems and in Particular the U.S. Federal State368
During its first century of existence, the goal of the U.S. Supreme Court was to strengthen the Union, which was an ongoing project in real and institutional terms.369 The task was not an easy one, given the power that the states retained, and the urgency of accomplishing the task was significant. Indeed, the Union was interested in participating in the European economic expansion of the eighteenth and nineteenth centuries, and European nations would not take the United States seriously, at least until it was a single, solid, sovereign nation. u
This thesis will now illustrate how the U.S. Supreme Court contributed to the construction and consolidation of the U.S. Federal State. In order to do so, the thesis will focus on the two main federal institutions: the U.S. Congress and the U.S. Federal Executive.
II.l.1.6.1. The U.S. Supreme Court and Its Role in Strengthening the Powers of Congress
The role that the U.S. Supreme Court played in enhancing the U.S. Congress was critical.
A set of decisions regarding Congress's power to establish new institutions not
368 There are other systems, such as U.S. society, that have been influenced by the Supreme Court's rulings. Those related to civil rights have had a considerable impact and shaped American society in significant ways. The jurisprudence condemning discrimination against blacks set forth in Brown (supra note 98), that protecting women's right to abortion established in Roe (supra note 109), and that protecting freedom of expression are a few examples of rulings that dealt with complex issues and allowed the Court to shape American society. 369 See McCloskey, supra note 84 at 43. 370 See Andrew Lenner, "Separate Spheres: Republican Constitutionalism in the Federalist Era" (1997) 41 Am. J. Legal Hist. 250 at 256. In this respect, Felix Frankfurter, later Justice of the U.S. Supreme Court, recognized the strengthening of the federal state as one of the leading concerns of the Court. In 1938, he wrote, "Until 1887, the national authority was exercised largely through the power of the Court to put brakes on state legislation that either discriminated against, or imposed undue burdens upon a free national market." Frankfurter, Holmes, supra note 180 at 78. 147 contemplated by the Constitution and Congress's capacity to regulate interstate commerce helped construct a powerful federal government.
11.1.1.6.1.1. The U.S. Supreme Court Allows Congress to Create Federal Institutions
The first step the Court took to help create the U.S. federal state was to endow the U.S.
Congress with broad powers to enact legislation and to create new institutions. The
Supreme Court did so in its 1819 ruling in McCulloch v. Maryland?11 The dispute arose out of Maryland's decision to tax the notes of the Bank of the United States, which had been incorporated by a law of the Congress in 1816. The federal government decided that the tax should not be paid, and Maryland argued that the law creating the Bank was unconstitutional, because Congress lacked the power to enact it. It is clear that the whole structure of the Federal State would have been at risk had Maryland succeeded in its argument, which it did not. The Supreme Court held that the law incorporating the Bank was constitutional and grounded its decision on three pillars of the Federal State. First, the
U.S. Congress's powers had to be interpreted generously, so as to allow it to respond to the changing needs of the country.373 374 Second, although the Constitution grants
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315 (1819). McCloskey, supra note 84 at 43. The Court said: "Among the general powers [vested on Congress by Article I, Section 8 of the U.S Constitution], we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of the Confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. ... Although, among the enumerated powers of government we do not find the word "bank", or "incorporation" we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct war ...The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are entrusted to its government. It can never be pretended that, that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, instructed with 148
Congress the power to "Make all Laws which shall be necessary and proper for carrying into Executions", it does not mean, as Maryland argued, that Congress has to enact only those laws that are indispensable. Instead, said the Court, "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit
one of the constitution, are constitutional." Finally, the Court concluded that states' tax decisions could not affect the supremacy of the Federal State and its national government.
II.l.1.6.1.2. The U.S. Supreme Court's Ample Interpretation of the Commerce Clause
The second step in the construction of the Federal State taken by the U.S. Supreme Court was the adoption of a liberal construction of the commerce clause of the US Constitution.
McCloskey so describes the interpretative problems associated with this clause:
[FJirst, what is interstate commerce? Does the term cover only buying and selling, or does it apply to such activities as navigation? Second, once we have determined what interstate commerce is, what is the extent of the power to regulate it? Third, what is the effect on the states of this grant of powers to Congress? Must they stay out of the field altogether, or do they have a concurrent right to control it?.. .377
such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be instructed with ample means for their execution..." As quoted in Fisher, supra note 109 at 312-13. 374 The Supreme Court had already stated this broad interpretation in 1816 in Martin v. Hunter's Lessee, 14 U.S. 304 (1816). (See McCloskey, supra note 84 at 40). However it was in McCullock where the jurisprudence produced its significant institutional impact for the Federal State. 375 As quoted in Fisher, supra note 109 at 314. 376 As quoted in ibid, at 314. 377 McCloskey, supra note 84 at 45. 149
Answers to these complex questions came from the Supreme Court. The first case, and also a landmark in the history of the Court, was its 1824 ruling in Gibbons v. Ogden, also known as the "Steamboat Monopoly Case." The dispute had its origin in the following facts: New York State granted Livingston and Fulton a licence to operate steamboats on all waters within its jurisdiction. Congress for its part enacted a law also granting Gibbons a licence to operate steamboats in the waters of the United States. He was operating steamboats between New York and New Jersey. Ogden, who had obtained permission from Livingston and Fulton to operate his ships between these two states, obtained an injunction preventing Gibbons from continuing his operations. Gibbons claimed that the New York licence violated Article I, section 8, clause 3 of the U.S.
Constitution, which provides that the power to regulate commerce between states is vested in Congress.
The U.S. Supreme Court held that navigation was commerce for the purpose of the provision. Then the Court proceeded to assign to the commerce clause a broad scope in favour of the Federal State. It declared regarding the power to regulate commerce:
It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed. This power, like others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitation, other than are prescribed in the constitution ...
More specifically, the Court concluded that the commerce clause would be applied to
"that commerce which concerns more states than one" and excludes "that commerce
Gibbons v. Ogden, 22 U.S. 1 (1824). As quoted in Fisher, supra note 109 at 321-22. 150 which is completely internal ... and which does not extend or affect other states."380 On this basis, the U.S. Supreme Court struck down the New York law. The policy reason identified was the need to give the Constitution the interpretation that would make it possible for the Federal State to respond to the tasks imposed on it by the Constitution.
The expansion of the commerce clause based on this rationale was considerable and reached even purely intrastate activity, for instance, intrastate rail tariffs, because of the
TOO ^Sl 184. impact on interstate rates (Minnesota Rate and Shreveport ). The scope of the regulatory power of the clause, the Court held in Champion v. Ames,385 included the power to prohibit interstate commerce.386
380 As quoted in ibid, at 321. 381 The Court said: [I]t has been said that these powers [of the federal State] ought to be constructed strictly. ... What do gentlemen mean, by a strict construction? If they contend for that narrow construction which ... would deny to the government those powers which the words of the grant (it refers here to the provision according to which U.S Congress is authorized "to make all laws which shall be necessary and proper"), as usually understood, import, and which are consistent with that narrow construction, which would cripple the government and render it unequal to the objects for which it is declared to be instituted, and which the powers given, as fairly understood, render it competent - then we cannot perceive the propriety of this strict construction, nor adopt it as a rule by which the constitution is to be expounded ... As quoted in Fisher, supra note 109 at 321. 382 Minnesota Rate, 230 U.S. 352 (1913). 383 Houston, East & West Texas Railway Company and Houston & Shreveport Railroad Company et ah, Appts., v. United States, the Interstate Commerce Commission et al. 234 U.S. 342 (1914). Known as the Shreveport Rate Cases. 384 Summarizing the scope of the commerce clause the U.S Supreme Court held in United States v. Darby (312 U.S. 100(1941)). [T]he power of Congress over interstate commerce is not confined to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce or the exercise of the power of Congress over it as to make regulation of them appropriate means to the attainment of a legitimate end, the exercise of the granted power of Congress to regulate interstate commerce ... As quoted in Curtis et al., supra note 111 at 169. 385 Champion v. Ames, 188 U.S. 321 (1903), known as the Lottery Case. 386 See in this regard, Tribe supra note 233 at 238-39. Recently, the scope of the commerce clause was so summarized by the Court in Morrison, where the Court stated: [Mjodern Commerce Clause jurisprudence has "identified three broad categories of activity that Congress may regulate under its commerce power." .... "First, Congress may regulate the use of the channels of interstate commerce.".... "Second, Congress is 151
However, it should not be assumed that the U.S. Supreme Court jurisprudence as to the commerce clause left states without any power to regulate commerce. This outcome could well have been politically impossible in a federal state with the characteristics of the
United States in the nineteenth century and its economy at this time, in which intrastate commerce was still dominant. So, there were occasions in which the Court recognized states' powers in this realm. For instance, in Cooley v. Board of Port Wardens, 387 the
Court established the doctrine of the "Dormant Commerce Clause" by which it allowed states to enact regulation affecting interstate commerce if Congress had not done so.388 On
-5QQ other occasions, such as the 1937 ruling on Carter, the Supreme Court interpreted the term "commerce" narrowly and distinguished it from production and mining, so states had free rein to regulate those activities.390
Finally, a few years ago, the US Supreme Court started to enhance states' powers by preventing Congress from invoking the commerce clause to enact regulation that had little
empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." ... "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, ... i.e., those activities that substantially affect interstate commerce. ... Morrison, supra note 260. 387 Cooley v. Board of Port Wardens, 53 U.S. 299. (1851) [references omitted]. 388 The Dormant Commerce Clause is by no means a legal antique appropriate for the first years of the US Congress when its legislation was scarce. The newest relevance of the Clause is due to State regulations related to the Internet. See in this regard, Unidentified author, "Constitutional Law - Dormant Commerce Clause - Washington Supreme Court Upholds State Anti-Spamming Law - Washington v. Heckel, 24 P. 3d 404 (Wash. 2001), cert, denied, 70 U.S.L.W. 3193 (U.S. Oct. 29, 2001) (No 01-469)" (2001 - 2002) 115 Harv.L.Rev. 931. 389 See Carter, supra note 252 at 256. 390 The distinction between commerce and mining and production would be later abandoned in NLRB v. Jones & Laulin Steel Corp., (301 U.S. 1 (1937)), and the U.S. Supreme Court restored the substantial economic effect test developed by Marshall in Gibbons. See in this regard, Tribe, supra note 233 at 232, 244. 152 to do with commerce, such as that aimed at typically local crimes. All these rulings exemplify the permanent tension between states and the Federal State, a subject matter that is of obvious historical concern in the United States, and which calls for a jurisprudence able to seek a balance between them.392
In sum, while in recent years the trend regarding the interpretation of the commerce clause appears to be reducing its scope for the benefit of states, the broad construction of the clause adopted by the U.S. Supreme Court during the nineteenth century allowed
Congress to fully develop a federal market in moments in which the extraordinary economic expansion of the U.S. economy was taking place.
As has been shown, in the nineteenth century, the U.S. Supreme Court played a pivotal role in strengthening the powers of U.S. Congress by allowing the creation of federal
391 In Morrison the Court pointed out that: "We accordingly reject the argument that Congress may regulate non economic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.... In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. The regulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goods involved in interstate commerce has always been the province of the States. ..." Morrison, supra note 260. 392 In the midst of the 1990s, the Court reiterated this approach in United States v. Lopez by saying the following: We start with first principles. The Constitution creates a Federal Government of enumerated powers. ... This constitutionally mandated division of authority 'was adopted by the Framers to ensure protection of our fundamental liberties.' ... 'Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.' ... United States v. Lopez, 514 U.S. 549 (1995) at 55960 [ references omitted]. The most recent trend in the U.S. Supreme Court, led by the late Chief Justice William Rehnquist, is an increasing protection of the scope of action of the states. See Mark Tushnet, "William Rehnquist's Federalism" in Craig Bradley ed., The Rehnquist Legacy (Cambridge: Cambridge University Press, 2006) 187. 153
institutions not expressly contemplated in the U.S. Constitution, beginning with the Bank
of the United States, and by expanding the scope of Congress's jurisdiction under the
commerce clause.
II.l.1.6.2. The U.S. Supreme Court's Strengthening of the U.S. Executive
In addition to enhancing the U.S. Federal State through the strengthening of the U.S.
Congress, the U.S. Supreme Court has done the same regarding another key federal
institution: the Executive. This has been done, particularly, in two specific areas: the
expansion of Administrative agencies' authority to interpret legislation393 and the granting
of broad powers to the U.S. President to conduct foreign affairs.
II.l.1.6.2.1. Deference to Administrative Agencies' Interpretation of Legislation
One of the most important decisions enhancing the powers of the federal government,
headed by the U.S. President, is Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc, which Cass Sunstein has rightly called the countcv-Marbury. This is so
because, while Marbury established that the meaning of the law is forjudges to determine,
I particularly refer to those agencies whose directors are appointed by the U.S. President, can be removed by him, and execute the President's policies, not to other U.S. agencies that act independently from the federal Executive, such as the Federal Communications Commission. 394 Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc, 467 U.S. 837 (1984) [Chevron]. 395 Cass Sunstein, "Law and Administration After Chevron" (1990) 90 Colum. L. Rev. 2071 at 2075. [Sunstein, "After Chevron"]. 154
Chevron supports a different position: judges must defer to agencies' interpretations under
396 certain circumstances.
In very broad terms, Chevron deals with the criteria judges must apply to evaluate agencies' interpretations in a complex society with massive regulation and with executive public entities explicitly created to face such complexity as well as the appearance of new, unexpected circumstances, which must be dealt with through appropriate regulatory responses by the State. The U.S. Supreme Court established a two-step process to determine if court must defer to agencies' interpretations of law by saying:
When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always is the question of whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.397
It could be said that the fact that administrative agencies are created by legislation that also determines their functions means that administrative agencies are, strictly speaking, under the realm of the US Congress. While the creation of agencies is a matter for Congress, the duty to ensure their operation is vested in the U.S. President under the so-called "Take Care Clause" provided for in Article II. Section 3 of the U.S. Constitution ("to take Care that the Laws be faithfully executed"). From such clause has been inferred the President's power to appoint and remove executive officials who by virtue of this power are accountable to the President (See Ronald D. Rotunda & John E. Novak, Treatise on Constitutional Law. Substance and Procedure, 4th ed. vol 2 (St. Paul, Minn: Thomson West, 2007) at 66), and therefore must follow their instructions within the scope of the legislative mandate of the given agency. Given that the President is the Executive administrator, Chevron allocated power to the President. Although, when analyzing the scope of the Presidential powers, U.S. scholars focus on the executive privileges, the capacity as Chief Commander, and the Capacity to Direct Foreign Relations, without mentioning the power as Chief of the Executive Branch, this does not preclude this thesis from claiming that Chevron affected the scope of powers of the President, since important scholars have seen it so. See Cass R. Sunstein, "Beyond Chevron: The Executive's Power to Say What the Law Is" (2006) 115 Yale L.J. 2580 at 2583 [Sunstein, "Beyond Chevron"]. 397 Chevron, supra note 394 at 702-03. It is important to say, first, that the mere existence of ambiguity in legislation does not immediately call for deference to an agency's interpretation. (See Sunstein, "After Chevron", supra note 395 at 2091). Second, it is not clear to what extent courts must defer to agencies' interpretations of law, while it is clear that they should defer to agencies' interpretations of facts. (Ibid, at 155
The policy reasons behind Chevron were boldly expressed by the U.S. Supreme Court in the following terms:
Judges are not experts in the field, and are not part of either political branch of the Government. ... In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments ...3 8
It is clear that the emergence of the regulatory state led to a new allocation of powers between the branches of government, because the delegation from legislative bodies to executive ones meant that law today comes in quantitative and qualitative terms mainly from administrative agencies that, although they carry out general mandates defined by the
U.S. Congress they do so under the policy choices of the Chief Executive. The Supreme
Court made this link clear when it said in Chevron that:
[W]hile agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices-resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left
2094). (See ibid for a discussion of when Chevron should be applied even to interpretations of law.) Third, Chevron also raises the question of whether agencies can determine their own jurisdiction (See ibid, at 2098), and fourth, whether it applies to agencies' changes of interpretation (See ibid, at 2103). Finally, as Andersen illustrates, Chevron was not exactly the first time in which the U.S. Supreme Court established the rule of deference to agencies' interpretations. The Court in NLRB v. Hearts Publications, 322 U.S. 111 (1944), had already done so. See Andersen, supra note 100 at 958. 398 Chevron, supra note 394 at 717. Sunstein shows some of the positive rationality of the Chevron doctrine. First, the existence of different legislation dealing with different subject-matters that are intertwined, and the regulation of which is vested on the same agency, calls for assigning it ample room to interpret the conflicting or diverging statutes. Second, the issue of new circumstances embodied in the development of new technologies, which leads to different or new problems for which corrective or updating legislative action is not foreseeable, also calls for agencies' interpretations to adjust the legislation to the new realities. In all these situations, the effect of Chevron is to give preference to the broad general view of the regulation and its application that agencies have over the case-specific view that a judge or a court has of such regulation. See Sunstein, "After Chevron", supra note 395 at 2088. Chevron has also been the object of strong criticism up to the point that for some it has become unworkable and should be reconceptualized. See Andersen, supra note 100 at 961. 156
to be resolved by the agency charged with the administration of the statute in light of every-day realities.399
The expansion of the powers of the Executive is evidenced by Sunstein. He quoted a former General Counsel of the Environmental Protection Agency, who said:
"Chevron opened up and validated a policy-making dialogue within agencies about what interpretation the agency should adopt for policy reasons, rather than what interpretation the agency must adopt for legal reasons."400
Finally, the consequence of the Chevron doctrine in the sense that it isolates agency decision making from judicial review to some extent is expressed in the following terms by Starr:
Chevron is significant for two reasons: First, ... [it] narrowed the ambit of judicial review of welfare legislation. In short, Chevron has made it more difficult for courts to overturn policy choices made by agencies when these choices are embodied in legal interpretations of statutes administered by agencies. Second, the Court's decision rendered untenable an assumption that seems to have undergirded many administrative law decisions in the past: that federal courts have a general duty to supervise agencies in much the same way that the Supreme Court supervises lower federal courts.401
The institutional result of Chevron has been a significant increase in the prominence of the
executive branch of government, because in addition to the pre-eminence obtained as a result of Congress's delegation, the Federal Executive gains from courts' deference to its
interpretation of such legislation according to its particular policy objectives.
II.1.1.6.2.2. Broad Presidential Powers to Conduct Foreign Affairs
399 Chevron, supra note 394 at 717. 400 E. Donald Elliot, "Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law" (2005) 16 Vill. Envtl.LJ 1 at 12. Quoted by Sunstein, "Beyond Chevron", supra note 396 at 2599. 157
The U.S. Supreme Court jurisprudence has also supported the Federal State by assigning the U.S. President broad powers in the conduction of foreign affairs. In United States v.
Curtiss-Wright Export Corp,402 the Court held:
[T]he President has the power to speak or listen as a representative of the nation ... As Marshall said ... 'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.
The policy reason was well explained in this ruling. The Court pointed out that the U.S.
President, not Congress,
has the better opportunity of knowing the conditions which prevail in foreign countries ... He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary and the premature disclosure of it productive of harmful results.40
The U.S. President's powers received additional expansion by the Court's application of the "political question doctrine" to issues related to foreign affairs. Indeed, in Baker the
Court said that
There are sweeping statements to the effect that all question touching foreign relations are political questions. Not only does resolution of such issues frequently turn on standards that defy judicial application, or involve the exercise of a discretion demonstrably committed to the executive or legislature, but many such questions uniquely demand single-voiced statements of the Government's views.404
401 Kenneth W. Starr, "Judicial Review in the Vosi-Chevron Era" (1985-1986) 3 Yale J. on Reg. 283 at 284. 402 United States v. Curtiss-Wright Export Corp, 299 U.S. 304,57 S.Ct 216, 81. L.Ed. 255 (1936). 403 Ibid, at 221. 404 Baker, supra note 238 at 211 [footnotes omitted]. The doctrine was applied, for instance, in Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) to allow U.S. President Jimmy Carter to terminate the mutual defense treaty with Taiwan, a decision that was contested by Senators on the grounds that it did not obtain the two-thirds votes of the Senate. See in this regard, Ronald D. Rotunda & John E. Novak, Treatise on Constitutional Law: Substance and Procedure, 3d ed. vol 1 (St Paul: West Group, 1999) at 578 [Rotunda & Novak, Treatise]. 158
A further expansion of the U.S. President's powers regarding the conduction of international affairs is found in the recognition of the existence of Executive Agreements, by virtue of which the US President commits the United States internationally without having the need to obtain the Senate's approval. The U.S. Supreme Court gave its blessing to these agreements in United States v. Pink,40 which, according to Rotunda and Novak, might deal with "the same subject matter as treaties."406
The result of the U.S. Supreme Court jurisprudence is to vest in the U.S. President very broad powers to design and implement foreign relations, which would not be clearly deducted from the text of the Constitution. In effect, Rotunda and Novak conclude that, although, according to the provisions of the Constitution, "the President has an active role in foreign affairs, the executive, in actuality, has gone far beyond these express grants in conducting international relations,"407 and it has done so with the blessing and support of the Court.
This conclusion does not imply that the U.S. President is the exclusive voice in U.S. foreign policy. The U.S. Congress also retains important powers both in constitutional and institutional terms. As Rotunda and Novak reveal, the U.S. Congress is an important check on presidential powers, because "the President relies on congressional legislation to
405 United States v. Pink, 315 U.S. 203,62 S.Ct 552, 86 L.Ed796 (1942). 406 Rotunda & Novak, Treatise, supra note 404 at 585. 407 Ibid, at 551. The scope of the political question doctrine would have some limits. In Dellums v. Bush, 752 F.Supp. 1141 (1990), a U.S. District Court declared, "While the Constitution grants to the political branches ... responsibility for conducting the nation's foreign affairs, it does not follow that the judicial power is precluded from the resolution of cases merely because they may touch upon such affairs." As quoted by Donald P. Kommers, John E. Finn & Gary J. Jacobsohn, American Constitutional Law. Governmental Powers and Democracy, 2d ed. vol 1 (Lanham: Rowman & Littlefield Publishers, Inc., 2004) at 183. 159 enact his foreign affairs policy." This prerogative gives the US Congress a significant voice regarding foreign affairs in issues such as the negotiation of treaties. Although treaty negotiation is the exclusive domain of the US President, in practice, treaties are concluded only once it is reasonably certain that the given treaty has enough congressional support to be approved by the Senate and the House of Representatives.409 Undeniably, although the
President negotiates internationally alone, Congress shapes the content of the
410 negotiations.
However, it is important to mention that the powers of the US President, although generously defined, even in the case of foreign affairs and security, have limits. These were established with particular emphasis by the Court in Youngstown Sheet & Tube Co. v. Sawyer, where the issue of implicit executive powers was specifically claimed by the
U.S. Executive and rejected by the Court.412
Rotunda & Novak, Treatise, supra note 404 at 558. 409 The power of Congress is also significant given that Congress is the organ that approves international treaties signed by the President. This power is not a formality, and significant treaties have been rejected by Congress. For instance, the International Trade Organization, whose treaty was negotiated among others by the United States in 1948, was not approved by Congress, and such decision led to its disappearance and the informal birth of the General Agreement on Trade and Tariffs (GATT). Also, changes in the majorities in Congress have forced the reopening of renegotiations of treaties already closed in order to secure the necessary support for their approval. This situation took place during the negotiation of the North-American Free Trade Agreement (NAFTA) once Bill Clinton was elected President in 1994, and it happened again. For instance, new negotiations started in 2007 between Colombia, Peru, and the United States regarding their free trade agreements, concluded in 2006, due to the new Democrat majorities in both the US House of Representatives and the Senate elected in 2007. 410 This is simply an expression of the fact that domestic and international politics are usually intertwined. See Robert D. Putnam, "Diplomacy and Domestic Politics: The Logic of Two-Level Games" (1998) 42 International Organizations 427. 411 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) [Steel Seizure]. 412 The background of the case was the Korean war, in which the United States was materially involved, although not legally since a formal declaration of war was never issued. See Rehnquist, Supreme Court, supra note 14 at 152. A labour dispute between the steel industry and its unions reached a deadlock, and the risk of a strike emerged, which, in the view of then U.S. President Harry Truman, could jeopardize the position of the US army in this country. The U.S. President took the decision of seizing the steel mills from their owners on the basis of his status as Commander in Chief of the U.S. Armed Forces. See ibid, at 156. The President later claimed before a judge that he did not have to base the seizure on any law, since he had 160
Finally, although, the Chevron doctrine and the broad powers the U.S. President retains to conduct foreign relations are but two examples of the U.S. Supreme Court's jurisprudence expanding the U.S. Federal Executive power, this is not to say that the Court has not taken decisions that have defied or adversely affected federal power. For instance, the clash between the Court and Franklin Delano Roosevelt for the New Deal Legislation was analyzed above, and other such decisions include Nixon v. the United States in which the fate of the U.S. President Richard Nixon was decided by the Court's ruling ordering the delivery of the tapes of the Watergate scandal, which in turn led to his resignation,413 and
Clinton v. Jones,AH establishing that the U.S. President lacks temporary immunity from suits involving the President's private actions occurring before his election, which in turn considerably affected Bill Clinton's presidency.
inherent powers (See ibid, at 159). The Supreme Court declared the seizure unconstitutional and put brakes on any expansion of the President's powers. The Court held: It is clear that, if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that 'The executive Power shall be vested in a President . . .'; that 'he shall take Care that the Laws be faithfully executed', and that he 'shall be Commander in Chief of the Army and Navy of the United States.'
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though 'theater of war' be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities. Steel Seizure, supra note 411 at 587. 413 Nixon v. the United States, 418 U.S. 683 (1974). 414 Clinton v. Jones, 520 U.S. 681 (1997). For an analysis of this decision, see Katy J. Harriger, "The Limits of Presidential Immunity," in Gregg Ivers & Kevin T. McGuire, eds., Creating Constitutional Change (Charlottesville: University of Virginia Press, 2004) 79. 161
II.1.7. Conclusion Regarding the Operation of the U.S. Supreme Court as an Autonomous System
In sum, what this brief account of the U.S. Supreme Court has striven to show is the fact that there is strong evidence suggesting that the Court has operated in ways similar to autonomous systems, as defined by Luhmann. In effect, the Court satisfies the criteria identified in Chapter I, namely: the existence of an identity defined by the functions the autonomous system performs; operation of the system by self-observation; constant repetition of its internal process of operation, which in the case of courts means interpretation and reinterpretation of courts' jurisprudence; careful observation of the external environment; existence of autonomy to self-transform; and capacity to contribute to the evolution of change of external autonomous systems.
The U.S. Supreme Court has all these features. As has been illustrated, the Court has an identity established on the basis of deciding legal disputes, as Section 1 of Article III of the U.S. Constitution sets forth. The Court has preserved this identity, with the scope it has determined for itself. Thus, the Court refused to transform itself into a legal adviser of the government by rendering advisory opinions to it without a prior dispute before the
Court. It can also be said that the identity of the Court is a mixture of judicial and political characters in the sense that, while the Court decides particular cases, the impact of its decisions go well beyond the specific parties at issue and shapes future public and private behaviour. Additionally, the Court determines for itself the specific orientation of its identity by deciding what type of disputes must be considered to be legal and which ones exclusively political. 162
The U.S. Supreme Court has carried out self-observation in the performance of its duties.
Self-observation can sometimes be pivotal when the Court exercises it power to grant certiorari and decides that it is not for the Court to deal yet with certain complex issues that have come before the courts embedded in disputes for which the grant of certiorari has been requested. Self-observation is also performed when the Court invokes the doctrines of mootness and ripeness, in which it seeks to preserve the use of its resources by not going to the merits of a dispute that no longer exists or that still can be resolved by the Administration. Self-observation is also performed when the Court, after seeing itself, concludes that certain disputes must be resolved by publicly elected institutions and applies the political question doctrine; or when the Court considers that solutions to certain controversies will not come from these institutions and concludes after self- observation that it is the one able to offer such solutions.
There is also abundant evidence indicating that the U.S. Supreme Court does observe its external political, economic, and social environment. It does so, first, because the U.S.
Congress has the capacity to introduce institutional changes to the Court and because the
U.S. President can seek to introduce such changes and the Court's history reveals that these powers have been used against the Court. It is in response to this reality, among other reasons, that the Court has developed doctrines such as the presumption of constitutionality of legislation and, again, the political questions doctrine, which can be used to avoid clashes with Congress. However, observation of the external political environment does not mean submission to it, and long-term assessments of the evolution 163 of the Court's jurisprudence have shown that its changes are unrelated to alterations of majorities in the U.S. Congress. The Court also observes public opinion as part of its external environment, and although it obviously does not decide according to it, the Court has not gone a long way from the general long-run trends of US society, as McCloskey argues.
Critical for the purpose of this thesis is the conclusion that the U.S. Supreme Court has autonomy to self-transform, because it fulfils the three criteria, found in Part 2 of Chapter
I, required for the existence of such autonomy, namely, that the Court can take decisions about itself, can select its self-transformations from a set of available alternatives, and directs its self-transformation by determining, through the operation of its collegial decision-making process and in light of the external environment, the scope, extent, and rationale of such self-imposed institutional changes. This Part I has also illustrated the important self-transformation carried out by the U.S. Supreme Court, namely, the creation of the judicial review of federal legislation and of state legislation, features that were not expressly provided for in the U.S Constitution.
Though this autonomy to self-transform has been found to exist, it does not mean that the
U.S. Supreme Court has complete rein to transform itself. In fact, such autonomy is constrained among others by external political actors who, although not in response to the
Court's self-transformative decisions, have exerted their power to adopt or have attempted to adopt measures aimed at affecting the operation of the Court in the past. It has also been 164 shown how the collegial decision-making process of the Court operates as an important constraint to this autonomy.
Finally, the Court, as autonomous systems do, has also contributed—in great part, thanks to the above-mentioned self-transformations—to the evolution of external autonomous systems, in this case the U.S. Federal State. In effect, the U.S. Supreme Court played an important role in the expansion of the U.S. Congress's and Federal Executive's powers, at a moment when such expansion was much required.
In conclusion, it is possible to say that there is strong evidence supporting the view that the U.S. Supreme Court has operated in ways similar to an autonomous system. This thesis proceeds to carry out a similar evaluation for a completely different judicial institution: the International Court of Justice.
II.2. The Operation of the International Court of Justice as an Autonomous System with Particular Emphasis on Its Autonomy to Self-Transform
The ICJ was established by Article 92 of the Charter of the United Nations (UN) and succeeded the Permanent Court of International Justice created by the League of Nations in 1920. The ICJ has 15 permanent Members, and this number, although high, was chosen to allow the Court to include judges coming from the major legal traditions of the world.415 Article 9 of the Statute of the Court establishes that the election of judges should
ensure "the representation of the main forms of civilization and of the principal legal
415 See Shabtai Rosenne, The Law and Practice of the International Court 1920-2005, vol. 1 (Leiden: Martinus Nijhoff Publishers, 2006) at 357 [Rosenne, Law and Practice]. 165 systems of the world." Members of the Court are appointed by the General Assembly and by the Security Council, from candidates previously chosen by national groups of the
Permanent Court of Arbitration and not directly by governments.416 To be appointed, judges must obtain majorities in both the UN General Assembly and the Security
Council,417 and their tenure is nine years, with the possibility of re-election.418 In order to secure their independence, the members of the Court cannot hold any other professional position or political or administrative function.419 In addition, the judges' annual salary cannot be decreased while they exercise their functions. 2
Institutionally, the ICJ is the judicial body of the UN and possesses universal jurisdiction as to subject-matters, in the sense that States can bring any type of international legal dispute before the Court regardless of the specific field of international law at issue in the controversy. It is also important to note that today the ICJ may be characterized as the most important interpreter of international law, by its position as the Court of the United
Nations, and its judgments are regarded as the most authoritative expression of international law.421 However, paradoxically, this strong international position that the
416 Although this is the rule on the books, a practice has developed whereby permanent Members of the Security Council always have a judge of their nationality on the Court. See Davis R. Robinson, "The Role of Politics in the Election and the Work of Judges of the International Court of Justice" in Charles H. Brower III & Nancy L. Pertkins, eds., Conflict & Coordination Across International Regimes. Proceedings of the 97th Annual Meeting, 2003, Washington (Washington: American Society of International Law, 2003) 277 at 278. 417 For a detailed description of the procedure and the practice regarding the election of members of the International Court of Justice, see Rosenne, Law and Practice, supra note 415 at 370-80. In addition to full- time judges, Article 31 of the Statute of the Court also provides for the appointment of ad hoc judges in contentious cases, when there are no judges of the nationalities of the Parties involved in the dispute. 418 See Article 13 of the Statute of the Court. 419 See Article 16 of the Statute of the Court. 420 See Article 32.5 of the Statute of the Court. 421 See Onuma Yasuaki, "Is the International Court of Justice an Emperor Without Clothes? (2002) 8 International Legal Theory 3 at 5. This view is, however, not unanimous. Eric Posner claims that the Court's importance is diminishing as a result of lack of compliance with its rulings and a reduction in the numbers of 166
Court enjoys exists along with a source of constant weakness: the Court's lack of compulsory jurisdiction, which forces the Court, as will be illustrated below, to always base its role as adjudicator on the prior consent of the disputing States and to strive to gain the trust of the community of States as an impartial adjudicator, which implies the need for a careful consideration of the Court's external environment to achieve a delicate and complex balance. The fact that it lacks compulsory jurisdiction has also led to a reduced
499 number of decisions, which, in the eyes of prominent judges of the Court, is regrettable.
It could be said, as will be illustrated in some detail below, that the ICJ has operated in ways similar to autonomous systems. And in particular, the Court has adopted decisions that have transformed itself, and that have made important contributions to external systems, in particular to the evolution of customary international law.
An analysis of the ICJ allows us to assess in a broad context the operation of the WTO
Appellate Body, including how both institutions share important institutional similarities and differences due to their character as international adjudicatory bodies, and how some self-transformation of the latter mirrors or could mirror in the future some of those that the former has introduced to itself. In sum, given that the Appellate Body has declared that
WTO agreements cannot be interpreted in clinical isolation from international law, and
States subject to the Court's jurisdiction and permanent Members of the UN Security Council that have accepted such jurisdiction. See Eric Posner, "The International Court of Justice: Voting and Usage Statistics" in Heifer & Lindsay, supra note 2, 130 at 132. 422 For instance, Judge Waldock pointed out that "clearly the Court cannot make its full contribution to the development of international law and the settlement of international disputes until greater use is made of it by States and by the United Nations. ..." Judge Sir Humphrey Waldock, "The International Court of Justice as Seen From the Bar and Bench" (1983) 54 Brit. Y.B. Int'l L. 1 at 5. 423 United States—Standards for Reformulated and Conventional Gasoline (1996), WTO Doc. WT/DS2/AB/R at 17 (Appellate Body Report), online: WTO
Body.
In order to show that how the ICJ has performed its functions can be explained in terms of the operation of autonomous systems, the second part of this chapter will comprise seven subsections. The first six will deal with each of the criterion identified in Chapter II to assess whether a court operates as an autonomous system, and the seventh subsection will illustrate the general conclusions about the operation of the ICJ as an autonomous system.
II.2.1. Some Features of the ICJ as an Autonomous System.
As was illustrated in the case of the U.S. Supreme Court, there is abundant evidence showing that the ICJ operates in ways similar to those of autonomous systems, as described by Luhmann. It was seen in Chapter I that the basic features of autonomous systems are their distinct identity, their operation by self-observation, their recursive operation, their observation of their external environment, their autonomy to self- transform, and their capacity to induce changes to other external systems. This part will
[US - Gasoline AB Report]. Basically, with this statement, the AB was following what the ICJ had pointed out in Legal Consequences for States of the Continued Presence of South Africa in Namibia. (South West Africa) Notwithstanding Security Council Resolution 276(1970) that "[a]n international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation." Legal Consequences for States of the Continued Presence of South Africa in Namibia. (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] I.C.J. Rep. 16 at 31 [Namibia]. 168 analyze each of these features, placing particular emphasis on the demonstration of the existence of the Court's limited autonomy to introduce self-transformation.
II.2.1.1. The Identity of the International Court of Justice
The identity of the ICJ is multiple: a court, a quasi-legislator, a legal adviser to the UN, a trial court, and an appellate court.42 4
II.2.1.1.1. The International Court of Justice as Advisor to the United Nations
The first identity of the ICJ is determined by its character as legal advisor to the organs of the UN. It renders Advisory Opinions pursuant to Article 96 of the Charter of the UN425 and to Article 65(1) of the Statute of the Court.426 In this sense, the identity of the Court
424 See Edward Gordon, "Legal Disputes under Article 36(2) of the Statute" in Lori Fisler Damrosch, ed., The International Court of Justice at A Crossroads (New York: Transnational Publishers Inc., 1987) 183 at 185. 425 Article 96 establishes: 1. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. 2. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities. 426 Article 65(1) of the Statute of the Court sets forth: The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. It is important to highlight that politics may play a significant role in the decision of whether to ask the Court for an advisory opinion, because the request must be made with the approval of two-thirds of the members taking part in the given session of the UN General Assembly if the legal question is regarded as an important one, or the simple majority of the present members if the questions is of another nature. (There are no clear-cut criteria to determine when a question is important or not. See Mohamed Sameh M. Amr, The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer Law International, 2003) at 76-77.) The same can be said with regard to the majority in the Security Council necessary to request an advisory opinion. If the question is regarded as procedural, it requires the votes of nine out of the fifteen members of the Council. If the question is considered as non-procedural, it requires the same nine votes, including all of the permanent members of the Security Council. Again, there 169 differs from that of the US Supreme Court and even from the WTO Appellate Body, which lack advisory powers.
The nature of this role is explained by Amr in the following terms:
[The Court] might assist the organs and agencies [of the United Nations] in deciding on the course of action they should follow; it might furnish them with legal advice and guidance in respect of disputes submitted to it and for action in all future cases and situations, ... it might help by eliminating further controversy over the legal aspects of a dispute or by having a calming effect on 427 parties...
In the definition of its advisory role to the UN, the Court has made important determinations. First, it has stated that it is not available to provide answers to political inquiries attached to legal issues. For instance, according to Rosenne: "The Court ... has stressed that it is not part of its judicial function to submit the matter before it to any form of political treatment, and that it does not have the power to consider questions of political nature that might be linked to the legal question before it."428
Second, the advisory role is restricted to the UN and does not cover States. So, although
States may agree to go before the Court and retain a considerable power to set the terms of the Court's involvement in order to resolve their dispute, States cannot ask the Court to hand down only an advisory opinion regarding their dispute.
are difficulties regarding the precise categorization of questions as procedural or non-procedural. See in this regard, ibid, at 78-79. 427 Ibid, at 48 [footnotes omitted]. 428 Rosenne, Law and Practice, supra note 415 at 162, quoting the Maritime Safety Committee advisory opinion. (1960). 170
In the dispute in the Case Concerning the Continental Shelf (Tunisia/Libyan Jamahiriya),
Libya argued that the ICJ did not have to go so far as to determine how the relevant international law had to be applied in detail to the delimitation of the boundary separating the parties, but only to provide guidance regarding the application of the international law relevant to the dispute. The Court did not support Libya's request, making a distinction between a judgment and an advisory opinion:
[T]he Court ... cannot agree with the repeated reference of Libya to 'guidance' as defining the requirement of what the Court should specify. The Court is not asked to render an advisory opinion in this case, in the sense of Article 65 of the Statute and Article 102 of the Rules of Court. What the Court is asked to do is to render a judgment in a contentious case in accordance with Article 59 and 60 of the Statute and Article 94, paragraph 2, of the Rules of Court, a judgment which will have therefore the effect and force attributed to it under Article 94 of the Charter of the United Nations and the said provisions of the Statute and the Rules of Court."429
Through this distinction, the Court preserved its judicial character as an organ entrusted with the duty to resolve disputes and its advisory role exclusively in relation to UN.
II.2.1.1.1.1. Quasi-Legislative Character of the Advisory Role of the International Court of Justice
The advisory role of the ICJ has another dimension related to the identity of the Court: it offers the Court quasi-legislative capacity. In effect, the fact that the Advisory Opinions of the ICJ are not binding does not prevent them from having important consequences.
Hudson argues that advisory opinions may be even more important than judgments because of their persuasive and not coercive character. 171
First of all, such opinions are likely to affect how negotiations by States within and outside the UN are conducted, as the Court itself declared in its advisory opinion in
Legality of the Threat or Use of Nuclear Weapons:
It has also been submitted that a reply from the Court in this case might adversely affect disarmament negotiations and would, therefore, be contrary to the interest of the United Nations. The Court is aware that, no matter what might be its conclusions in any opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. .. ,430
The advisory role of the ICJ may grant, in practical terms, a considerable latitude to the
Court to shape the present and future or controversies within the UN having a bearing on key issues of international law and politics. In effect, through this mechanism, for
instance, the Court established the character of subjects of international law of
international organizations431 and got involved in the debate over the legality of the use of nuclear weapons in the middle of the Cold War.
Second, the Court itself has recognized that its advisory opinions may have a potentially
quasi-legislative effect. In its advisory opinion in Legality of Nuclear Weapons, and after having reaffirmed that it was not legislating, the Court virtually had to admit at least the
quasi-legislative character of its advisory opinion. The Court held:
[I]t is clear that the Court cannot legislate, and, in the circumstances of the present case, it is not called upon to do so. Rather its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal
429 Case Concerning the Continental Shelf (Tunisia/Libyan Jamahiriya), [1982] I.C.J. Rep. 18 at para. 29 [Continental Shelf (Tunisia/Libyan Jamahiriya)}. 430 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] I.C.J. Rep. 226 at para. 17 [Legality of Nuclear Weapons]. 431 Traditionally, only States were regarded as subjects of international law. The ICJ extended such status to international organizations as well. See Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] I.C.J. Rep. 174 [Reparation]. Legality of Nuclear Weapons, supra note 430. 172
principles and rules applicable to the threat or use of nuclear weapons. ... The Court ... states the existing law and does not legislate. This is so even if, in stating and applying the law, the Court necessarily has to specify its scope and sometimes note its general trend.433
Lachs, a former President of the Court, highlighted the quasi-legislative nature of some advisory opinions when he said that they "[o]ffer the Court a much greater potential to further develop the law than judgments in contentious proceedings: the former, unlike the latter, are not limited to a strict analysis of the facts and submissions that are presented to the Court."434
In sum, the identity of the ICJ is first determined by its advisory role to the UN. When asked to perform this function, the Court has had the occasion to define it, first, by circumscribing its role to legal, not political, debates, and second, by specifying that its advisory role is circumscribed to the UN, not to States. In addition, the advisory role, despite its non-binding nature, has a quasi-legislative character that has been recognized by the Court and by one of its Presidents.
433 Ibid, at para. 18. 434 As quoted by Amr, supra note 426 at 48. However, a former U.S. Legal Adviser of the U.S. Department of State, William Howard Taft IV holds a completely different view. He argues that [T]he Court should be circumspect in accepting invitations for advisory opinions for two reasons. First, the absence of a case involving specific parties deprives the Court of a fact finding structure that should underlie and focus the exercise of the judicial function. Second, and more importantly, the Court should be cautious because the context in which advisory opinions (such as the Wall opinion) are sought tends to be highly political, and the Court's involvement is sought, typically, with intention of influencing policy choices. William Howard Taft IV, "Remarks in Panel 'The International Court of Justice at 60: Performance and Prospects'" in Hilary Charlesworth & Donald Francis Donovan, eds., A Just World Order Under Law. 173
II.2.1.1.2. The Judicial Identity of the International Court of Justice
The second identity of the International Court of Justice is associated with its character as a judicial institution created to resolve inter-State disputes. To perform this task, the sources of the ICJ's jurisdiction are four: (i) a specific request by parties to a dispute to adjudicate it; (ii) States' ex-ante unilateral declaration accepting the jurisdiction of the
Court for specific future controversies, the so-called optional clause; (iii) inclusion in bilateral, regional, or multilateral agreements of a compromisory clause establishing that any disputes arising out of the given treaty will be solved by the ICJ;435 and (iv) forum prorogatum by which a State party to a dispute that does not fall within the jurisdiction of the Court starts proceedings before it, and the respondent accepts such jurisdiction pursuant to Article 38(5) of the Rules of the Court.436
Proceedings of the 100th Annual Meeting of the American Society of International Law, Washington, 2006 (Washington: American Society of International Law, 2006) 398 at 399. 435 As with any compromisory clause, it is for the parties to tailor the level of involvement of the ICJ in their dispute. For instance, they may assign the Court only a part of the dispute, leaving the rest in tiieir hands to be resolved through negotiations after the Court has handed down its judgment. This was the case in the dispute between the Federal Republic of Germany on one hand and Denmark and the Netherlands on the other. In their agreement to submit the dispute to adjudication by the ICJ, they determined to leave in the hands of the Court only a part of it: the identification of the international rules applicable to the delimitation of the continental shelf. But the parties reserved for themselves the negotiations as to how to apply the rules identified by the Court. See North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany /Netherlands), [1969] I.C.R. Rep. 3 at para.l [North Sea Continental Shelf Cases] The Court recognized this situation (See ibid, at para. 92), and in addition to determining the applicable law, it set guidelines regarding how to apply them. (See ibid, at paras. 92, 99). See generally, Shabtai Rosenne, The World Court. What it is and how it works, 5d ed. (Dordrecht: Martinus Nijhoff Publishers, 1995) at 84-93 [Rosenne, World Court]. Jurisdiction due to forum prorogatum has never taken place in the eight cases in which it has been sought to be applied by the complaining State. For this reason, a judge of the Court labelled this source of jurisdiction an "unrealistic institution." See Shigeru Oda, "The Compulsory Jurisdiction of the International Court of Justice: A Myth? A Statistical Analysis of Contentious Cases" (2000) 49 I.C.L.Q. 251 at 255, 262 [Oda, "Myth"]. In particular terms, from the Court's perspective, the ideal source of jurisdiction is the consent of the States to submit their dispute to the Court. The rate of compliance with the respective judgment was 100% during the last quarter of the last century. See ibid, at 262. 174
The fact that, in abstract terms, the ICJ's jurisdiction may come from multiple sources does not mean that such jurisdiction is as significant in real terms as it appears. This is why one author has graphically called the Court an "emperor without clothes."437 In particular, the so-called compulsory jurisdiction of the Court pursuant to Article 36(2) of
no the Statute may be regarded as very limited, since States that have accepted the compulsory jurisdiction of the Court have made multiple reservations.439 Some States have gone so far in these reservations as to declare that, even after the unilateral declaration, it is up to them to accept the jurisdiction of the Court.440
437 Yasuaki, supra note 421 at 5. 438 Although the term compulsory jurisdiction is used regarding the source of jurisdiction set forth in Article 36(2), this provision is also labelled the "optional clause," a term that differs considerable from the former, but which better conveys the true scope of Article 36(2), in the sense that States must always have consented previously to the jurisdiction of the Court, under the precise scope each State has wished for. Thus, the jurisdiction of the Court concerning States pursuant to this provision varies from one State to another. This is certainly not the case, for instance, of the jurisdiction of the WTO dispute settlement system. Obviously, the jurisdiction is dependent upon States' consent at the time they accede to the Organization, but once this accession has taken place, the jurisdiction of the system is compulsory for every single WTO Member. 439 The jurisdiction of the ICJ in each of these situations depends on conflicting parties' express will in this regard. In 1924, the Permanent Court of Justice stated in the Case of the Mavrommatics Palestine Concessions case that it has to bear "in mind the fact that its jurisdiction is limited, that it is invariably based on the consent of the respondent and only exists in so far as this consent has been given." Case of the Mavrommatis Palestine Concessions (1924), P.C.I.J. (Ser.A) No 2 at 16, as quoted by Hersch Lauterpacht, The Development of International Law by the International Court Reprinted (Cambridge: Grotious Publications Limited, 1982) at 91 [Lauterpacht, Development]. Most recently, the Court held: [T]he attitude of the respondent State must, however, be capable of being regarded as 'an unequivocal indication' of the desire of that State to accept the Court's jurisdiction in a 'voluntary and indisputable' manner" Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002), Decision on Jurisdiction of the Court and Admissibility of the Application of 3 February 2006, at para. 21. online: International Court of Justice
Nonetheless, the fact that the ICJ has limited jurisdiction does not mean that the Court's role is not significant when performing its judicial function. In this sense, I share
Charney's views, according to which:
The importance of the Court's influence on international behaviour may indeed be subtle and may not be dependent on compelling, by court order, a specific outcome in matters brought to it. The Court's existence and its availability can influence the behaviour of those nations which might be legally obligated to abide by its determinations. Furthermore, the very fact of a permanent court of international law with some compulsory jurisdiction serves as a symbol for the rule of international law. Such a symbol can play an important role in promoting and legitimizing that law.441
Having said that, it is worth mentioning that the ICJ's judicial function is rooted in the existence of legal disputes. There has been in the literature a vast amount of scholarship devoted to determine when a dispute is a "legal" one that should be adjudicated by the
Court.442 However, there is not a precise doctrine of justiciability in international law,443 which means that the Court has great latitude in determining the scope of its jurisdiction.
law. See for instance, Christine Gray, "The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua" (2003) 14 E.J.I.L. 867. 441 Jonathan I. Charney, "Disputes Implicating the Institutional Credibility of the Court: Problems of Non- Appearance, Non-Participation, and Non-Performance" in Damrosch, supra note 424, 288 at 301. 44 Lauterpacht developed a test to determine whether a dispute should be subject to adjudication: (a) differences capable of judicial settlement by the application of existing and ascertainable rules of international law; (b) differences in which the subject matter of the claim relates to questions of minor and secondary importance not affecting the vital interests of states, or their external independence, or internal sovereignty, or territorial integrity, or honor; (c) differences in regard to which the application of existing rules of international law is sufficient to ensure a result which is not incompatible with the demands of justice between states and with a progressive development of international relations; and (d) differences in which the controversy concerns existing legal rights as distinguished from claims aiming at a change of the existing law. Hersch Lauterpacht, The Function of Law in the International Community (Oxford: Clarendon Press, 1933) at 19-20 [Lauterpacht, Function]. 443 As to the lack of this theory, see Gordon, supra note 424 at 190. 176
In the exercise of this discretion, the Court has defined the scope of the term "dispute," and given it a very broad ambit. In effect, the ICJ held in its Decision on Jurisdiction of the Court and Admissibility of the Application in the Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002):
The Court recalls in this regard that, as long ago as 1924, the Permanent Court of International Justice stated that 'a dispute is a disagreement on a point of law or fact, a conflict of legal views or interests'. (Mavrommatis Palestine Concessions, Judgment No 2, 1924, P.C.I J., Series A, No 2, p. 11).
For its part, the present Court has had the occasion ... to state the following: 'In order to establish the existence of a dispute, it must be shown that the claim of one party is positively opposed by the other ...'; and further, 'Whether there exists an international dispute is a matter for objective determination .. ,'444
Within the scope of its judicial identity, the ICJ has sought sometimes to highlight its exclusive judicial nature. For instance, in the Case Concerning Rights of United States
Nationals in Morocco (France v. United States of America, it held that "[i]t is the duty of the Court to interpret treaties, not to revise them." However, the judicial identity may comprise quasi-legislative functions as well. Important authors, in fact, even former members of the ICJ, have held that there is little difference between making treaty law and
446 treaty interpretation.
444 Armed Activities, supra note 439 at para. 90. 445 Case Concerning Rights of United States Nationals in Morocco (France v. United States of America, [1950] I.C.J. Rep. 176 at 229. 446 Sir Hersch Lauterpacht says: [J]udicial law-making is a permanent feature of administration of justice in every society ... In the international sphere, the problem is complicated, on the one hand, by the requirement of caution and restraint called for by the sovereignty of States tribunals and by the voluntary and, therefore, precarious nature of the jurisdiction of international tribunals. It is intensified, on the other hand, by the strong inducement to supplement and remedy the deficiencies and inconsistencies of an imperfect legal system. Lauterpacht, Development, supra note 439 at 155. See also in this regard, Laurence Boisson de Chazournes & Sarah Heathcote, "The Role of the New International Adjudicator" in David J. Bederman & Lucy Reed, 177
The quasi-legislative identity of the Court is virtually inescapable given the fact that the
ICJ is called to interpret not only treaties, but also treaties in the broad context of a body of law in permanent flux: customary international law.447 It may be entirely possible that
ICJ's interpretations end up making significant contributions to specific areas of customary international law.448 Sir Hersch Lauterpacht pointed out in this regard that "[i]n many a case of treaty interpretation the effect of the treaty will depend on our view as to the position of customary international law on the question ..." 449 Another former judge, and President of the ICJ, Humphrey Waldock, recognized the quasi-legislative nature of the Court's judgments regarding the law of the sea:
[T]he Court .. is ... fully capable, if given sufficient opportunities, to make a valuable contribution both to the settlement of disputes and to the development of international law. The contribution of the Court to the modern law of the sea has, for instance, been both considerable and, in the idiom of today, progressive, without departing from the Court's judicial character. ... In its judgments ... the Court performed the classic function of a court in determining and clarifying what it conceived to be the existing law. In doing so, however, it threw fresh light on the considerations and the principles on which the law was based in a manner to suggest the path for future development...450
eds., The Visible College of International Law. Proceedings of the 95th Annual Meeting, 2001, Washington (Washington: American Society of International Law, 2001) 129 at 130. 447 For instance, as Boisson de Chazournes & Sarah Heathcote point out, ICJ judgments by themselves can make significant contributions to the development of customary international law by simply stating that a determined rule has become an international custom. That was the case of the Law of the Sea Tribunal's decision in MN Saiga, in which the Tribunal based the customary law status of the state of necessity on the Court's judgment in Gabcikovo-Nagymaros, in which it declared such principle to have this character, despite the fact that controversy surrounded this recognition before the Court's ruling. See Boisson de Chazournes & Heathcote, supra note 446 at 133. The European Court of First Instance did the same and specifically stated in Opel Austria GmbH v. Council of the European Union (Case T - 115/94) that "[T]he principle of good faith ... is a rule of customary international law, whose existence has been recognized by the International Court of Justice ... and it is therefore binding on the Community." See in this regard also Rosalyn Higgins, "The ICJ, the ECJ, and the Integrity of International Law" (2003) 52 I.C.L.Q. 1 at 8-9. 448 Lauterpacht, Development, supra note 439 at 27. 449 Ibid, at 28. 450 Waldock, supra note 422 at 4. 178
The ICJ has significant latitude to design the extent of the quasi-legislative character of its judgment dealing with customary international law. It will be shown below in Parts
II.2.1.6.2 and II.2.1.6.3 of this chapter that the Court has two approaches to the recognition of customary international rules: one, flexible and one, strict. By virtue of the first, the extent of the quasi-legislative function of the Court is enhanced, since the application of the flexible approach facilitates the declaration of customary international rules by the Court. On the contrary, by virtue of the second, the scope of the quasi- legislative character of the Court is much narrower, given that the Court applies higher thresholds for the recognition of rules of this sort, which makes such declaration more difficult and unlikely.
In sum, the Court has taken steps to determine its identity as a judicial body, but on terms the Court considers appropriate. It is not simply that the Charter of the United Nations and the Statute of the Court determine such judicial function, with the Court simply applying
these provisions. It is the Court, according to its own understanding of the rules, that
determines its identity and how to preserve it, as the Court emphatically indicated in the
Case Concerning the Northern Cameroons (Cameroon v. United Kingdom),:
There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore. There may thus be an incompatibility between the desires of an applicant, or, indeed, of both parties to a case, on the one hand, and on the other hand the duty of the Court to maintain its judicial character. The Court itself, and not the parties, must be the guardian of the Court's judicial integrity.
That [judicial] function is circumscribed by inherent limitations which are none the less imperative because they may be difficult to catalogue, and may not frequently present themselves as a conclusive bar to adjudication in a particular 179
case. Nevertheless, it is always a matter for the determination of the Court whether its judicial functions are involved. [Italics added].
As a general conclusion, it can be said that the ICJ has multiple identities, given its character as legal adviser to the UN and as the highest international adjudicator of the world. Each of these two identities includes another one: the quasi-legislative capacity of the Court, particularly with regard to the declaration of customary international law. It is the Court who, in the end, determines the real extent and nuances of each of these identities when rendering advisory opinions or judgments.452
H.2.1.2. Self-Observation by the International Court of Justice
Turning now to the self-observation feature of Luhmann's theory of systems, it can be posited that there is evidence supporting how the performance of self-observation by the
Court has been a substantial element in the adjudication of disputes and in the rendering of advisory opinions. Such self-observation has manifested itself in different ways: (i) refusal to go to the merits of the dispute because of the adverse impact the judgment may have on the institutional reputation of the Court; (ii) recognition of its limits as a judicial institution to resolve certain disputes; (iii) recognition of the weakness of the mechanism to enforce the Court's judgments and of the need to craft decisions aimed at securing high levels of compliance, thereby enhancing the prestige of the Court as a valuable means to effectively
Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, [1963] I.C.J. Rep. 15 at 29 [Northern Cameroons}. 452 It will be shown below in Part II.2.1.5.4 of this chapter how the ICJ, through self-transformations, has refined its role as legal advisor to the United Nations, and as a judicial and quasi-judicial body. 180 resolve inter-State disputes; (iv) refusal to assert jurisdiction when a highly likely lack of compliance may lessen the Court's institutional pre-eminence.
First, self-observation by the Court has been demonstrated in its decisions that it was unable to adjudicate a dispute because of the damages to the institutional reputation of the
Court the ruling may engender. For instance, the dispute between New Zealand and
France over the latter's atmospheric nuclear tests, in which their legality was contested by
New Zealand, is indicative of such self-observation. As will be seen below,453 the Court determined that the French promise not to conduct further atmospheric nuclear tests, made after proceedings had started before the Court, had ended the dispute with New Zealand, and therefore, there was no need to decide about the legality under international law of such test. Commenting on this decision, and of the then Court's President, Judge Lachs, the Dutch Foreign Minister, Professor Kooijmans, said the following words, which reveal the Court's self-observation when it adopted its decision:
By applying the law strictly and basing itself faithfully on the closed categories of formal sources of law, the Court could easily - and from a legal point of view not incorrectly - have come to the conclusion that there was no legal impediment for France to continue to carry out its nuclear atmospheric tests. But maybe more than anyone else, Manfred Lachs was aware of the devastating effects such a decision could have for the reputation of the Court, as the General Assembly had pleaded in numerous resolutions for the discontinuance of such tests. Esteem for the Court in the international community could plummet to a new low. ... as the Court's President he hoped to avoid such an outcome. So he looked for other 454 venues.
453 See Part II.2.1.4.2 of this chapter, below. 454 P.H. Kooijmans, "In Memoriam Manfred Lachs" (1993) 6 Leiden J. Int'l L. i. at ix. For further analysis of the adjudication of this case illustrating the Court's self-observation, though without making such angle explicit, see Edward McWhinney, "The International Court and Judicial Law-Making. Nuclear Tests Re-visited" in Jerzy Makarczyk, ed., Theory of International Law at the Threshold of the 21s' Century: Essays in Honour of Krzysztof Skubieszewski (The Hague: Kluwer Law International, 1996) 509 at 514. 181
A second source of evidence of self-observation exists in the ICJ's open recognition of the
limitations it faces to wholly resolve issues. In its advisory opinion in Legality of Nuclear
Weapons, the General Assembly asked the Court to determine whether the use of such weapons was lawful under international law. Several States—mainly the nuclear powers—requested the Court not to submit the opinion. Although the ICJ decided to issue the opinion, it recognized that it faced limitations in doing so, and that such limitations
would force the Court not to deal with certain aspects of the question. The Court said:
In view of what is stated above, the Court concludes that it has the authority to deliver an opinion on the question posed by the General Assembly, and that there exist no 'compelling reasons' which would lead the Court to exercise its discretion not to do so.
An entirely different question is whether the Court, under the constraints placed upon it as a judicial organ, will be able to give a complete answer to the question asked of it. However, that is a different matter from a refusal to answer at all.455
Third, self-observation is also manifested in the Court's awareness of its institutional
limitations when compared with domestic judicial institutions, which sometimes forces
the Court to seek to minimize the impact of such limitations in its decisions. It is thorough
self-observation that not only are these flaws identified, but also that the decision to tackle
them is taken by the Court. Paramount among such limitations is the weak system of
enforcement of the ICJ's judgments in the event of non-compliance by reluctant
respondent States. In effect, the UN Security Council is the organ responsible for adopting
measures aimed at pressing States to abide by the Court's decisions. Given the complexity
of the operation of this organ, it is widely recognized that in real terms compliance with
adverse rulings by defendants largely depends on the persuasiveness of the ruling in terms
455 Legality of Nuclear Weapons, supra note 430 at para. 19. A similar statement had been made by the Court in its judgment in Northern Cameroons. See supra text accompanying note 451. 182 of its responsiveness to the different claims and arguments of the parties and on public opinion.457 Sometimes, the ICJ appears to be aware of this reality—which results from self-observation—and renders solomonic judgments. In the case of decisions of this kind, both parties can portray themselves as winners before their domestic constituencies, which paves the way for the final resolution of even protracted disputes. By doing this, the Court designs judgments aimed at overcoming the absence of an effective mechanism to induce compliance with its rulings by reluctant States.
A telling example of a decision of this character is the judgment in the case Maritime delimitation and territorial questions between Quatar and Bahrain, in which the two
States were disputing sovereignty over five territories, including some islands. The Court
split the difference by ruling that some territories belonged to Quatar, others to Bahrain,
and that the former had the right of innocent passage over the territorial water of the latter.458 In other words, the virtual lack of enforcement mechanism as an institutional
456 Lauterpacht argued that Experience has shown that Governments as a rule reconcile themselves to the fact that their case has not been successful - provided the defeat is accompanied by the conviction that their argument was considered in all relevant aspects. On the other hand, however fully they may comply with an adverse decision, they do not find it easy to accept it as expressive of justice ... if they feel that their argument was treated summarily, that it was misunderstood, or that dialectics have usurped the place of judicial reasoning. Lauterpacht, Development, supra note 439 at 39. See also regarding complete justifications of the ICJ decisions, Nagendra Singh, "Interview", in Sturgess & Chubb, supra note 366,449 at 452. 457 In this regard, Singh, former Presidente of the ICJ stated: For the enforcement of the court's decisions there is a provision that the aggrieved party can appeal to the Security Council under Article 94. But the Security Council has its own limitations, so that appeal may not be effective. In that event there is no solution. The court's verdict is dependant on world public opinion ... Ibid, at 450 [italics added]. 458 See Constanze Shulte, Compliance with Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004) at 238. A similar type of judgment took place in the Gabcikovo-Nagymaros case. The dispute arose from a joint project between Hungary and Czechoslovakia to build a system of locks on the Danube River for the purpose of energy generation, improvement of navigation, and prevention of flooding. At a time when the works in Czechoslovakia were well advanced, Hungary stopped work on its territory due to its 183 feature of the operation of the Court appears sometimes to play a role in how the Court crafts its judgments. The recognition of this institutional flaw and the decision to address it with this type of judgment results primarily from the Court's self-observation.460
environmental concerns, which led the former to carry out an alternative project that Hungary considered to adversely affect its access to the river. The ICJ again laid down a solomonic judgment. It said that Czechoslovakia had the right to develop an alternative solution in response to Hungary's behaviour, which in the Court's view was not justified under a state of ecological necessity. However, the Court also stated that it made no sense to order the construction of the original designed project, and on the basis of the prior agreement among the parties, the Court set the parameters under which negotiations should have to be carried out. As Bekker argued, "This case is a good example of how the ICJ gives and takes with a view to achieving a result that is acceptable to both litigants and that, consequently, stand the best chance of being complied with by the two sovereign litigants." Peter H. F. Bekker, "Gabcikovo-Nagymaros Project" (1998) 92 A.J.I.L. 273 at 277. However, the implementation of the judgment has been difficult due to its diverse interpretations by the parties of the Court's judgment. See Shulte, supra note 458 at 245-48. Reisman is of the view that, at some time in its history, the Court reacted to the certainty of lack of compliance by refusing to assert jurisdiction. He stated in this regard: The Anglo-Iranian Oil Co. Case (Preliminary Objections), [1952] I.C.J. Rep. 93, is the most instructive example of this point. In that case, the United Kingdom sought to bring Iran before the Court on the basis of an Iranian declaration of adhesion under Article 36. It was apparent that Iran would not comply with any judgment which might have ensued. By extremely restrictive interpretation, the Court found itself without jurisdiction. In a dissenting opinion. Judge Read observed that some twenty days before the Court had upheld its jurisdiction under a similar adhesion in the Ambatielos case (Preliminary Objections), [1952] I.C.J. Rep. at 38 ... In the Case Concerning the Aerial Incident of 27 July 1955 (Preliminary Objections), [1959] I.C.J. Rep. 127, in which Israel sought to bring Bulgaria before the Court for downing an Israeli civilian carrier which strayed into Bulgarian airspace, the Court disseised itself of jurisdiction, refusing to construe the Bulgarian declaration of adhesion of 1921 to the P.C.I.J. as operative vis-a-vis the I.C.J., under Article 36(5) of the Statute. The Declaration of 1921 had been made when Bulgaria was a Kingdom. Subsequently Bulgaria became Communist. It was highly improbable that she would have complied with a judgment. ... William M. Reisman, "Enforcement of International Judgments" (1969) 63 A.J.I.L. 1 at 3. 459 This is not to say that this is always the case. In fact, the Court has at least in one decision stated explicitly that certainty about non-compliance does not play a role in how the Court performs its duties and render its pronouncements. See Case Concerning Military and Paramilitary Activities In And Against Nicaragua. (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, Decision on Jurisdiction of the Court and Admissibility of the Application of 26 November. [1984] I.C.J. Rep. 392 at para. 101 [Nicaragua Jurisdiction]. For the text of this statement, see infra text accompanying note 474. 460 It is important to say that the Court itself has not explicitly recognized that it may eventually design its judgments in a way that favours compliance with them, given the problems associated with the use of the UN Security Council to induce such compliance. However, the existence of this institutional limitation, along with the content of the above-mentioned solomonic judgments, which in fact are easier to comply with, in principle, makes it possible to think that the content of the judgment has some links with the need to ensure that voluntary compliance is more likely, thereby minimizing the adverse impact of the limitation. 184
As can be inferred from this analysis, there is direct and indirect evidence indicating that the Court does indeed self-observe when performing its duties.461
H.2.1.3. The Recursive Operation of the International Court of Justice
Luhmann posits that the autonomous systems operate recursively in the sense that they constantly re-create themselves, which, regarding courts functioning as autonomous systems, means that they interpret once and again not only the applicable norms of the case, but also the specific court's past interpretation of them. In other words, courts interpret and reinterpret themselves permanently, including their prior rulings about their own institutions.
Recursivity is a well-established feature of the operation of the ICJ. In effect, although by virtue of Article 59 of the Statute of the Court, decisions of the ICJ have no binding effect beyond parties to disputes, it is routine to find that the ICJ applies and re-interprets its prior decisions, to ratify them if they have been challenged or questioned. Examples
abound. For instance, the relationship between States and non-State actors that make the former internationally responsible for acts of the latter was first addressed in the ICJ judgment in the Case Concerning Military and Paramilitary Activities In And Against
Nicaragua (Nicaragua v. United States of America) and further elaborated in the
461 There is another example of the Court's self-observation that will be illustrated below in Part n.2.1.5.4.6 of the chapter: the Court's refusal to assert jurisdiction only on the basis of alleged violations of norms of jus cogens. The Court simply has not the resources to become the enforcer of this important body of international law. 462 Case Concerning Military and Paramilitary Activities in and against Nicaragua. (Nicaragua v. United States of America, Merits, [1986] I.C.J. Rep. 14. [Nicaragua Merits]. The dispute between Nicaragua and the United States stemmed from the U.S. mining of some Nicaraguan ports and from the financial and 185 judgment in Case Concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide. (Bosnia Herzegovina v. Serbia and Montenegro.
On other occasions, the Court has interpreted its previous rulings in order to clarify them.
For instance, according to Lauterpacht, the ICJ clarified in Mavrommatis Palestine
Concessions its previous advisory opinion in Tunis and Morocco Nationality Decrees.
In other situations, the Court has backtracked in subsequent decisions from findings or obiter dictums made in previous judgments. For instance, in its judgment in Case
Concerning the Barcelona Traction, Light and Power Company, Limited, the ICJ held that for reasons of equity it could be possible in exceptional circumstances to accept that the State of nationality of shareholders could exert diplomatic protection of their corporations, when this was incorporated under the laws of another State.465 Recently, in its decision regarding preliminary objections in the Case Concerning Ahmadou Sadio
logistical support offered to the opposition paramilitary group called contras. The U.S. alleged that the support was made on the basis of the right of collective self-defence, given the aid that Nicaragua's government was in turn supplying to leftist guerrillas in El Salvador. The ICJ concluded that the actions of the contras, even though they could not have been carried out without massive US support, could not be attributed to the U.S. Nonetheless, die Court found that the no right of collective self-defence was present in the case, since the support for the contras started before El Salvador claimed that the leftist guerrillas operating in its territory were supported by Nicaragua, and since such support, even if it had existed, could not amount to an armed attack. Additionally, the Court declared that, by financing the contras, the U.S. had violated the principle of non-intervention provided by customary international law. 463 See Genocide, supra note 439 at paras. 392, 393,400. 464 This sense of the recursive operation of the ICJ is evidenced by the following analysis made by Lauterpacht: On occasions the Court attaches importance to explaining an apparent inconsistency in relation to a previous pronouncement. Thus, when in the Judgment relating to Mavrommatis Palestine Concessions it decided to examine in detail the jurisdictional question as to whether the action could be decided by the application of the clauses of the Palestine Mandate, it hastened to add that this method of proceeding was not inconsistent with its pronouncement in the Advisory Opinion concerning the Tunis and Morocco Nationality Decrees... Lauterpacht, Development, supra note 439 at 10. 465 Case Concerning the Barcelona Traction, Light and Power Company, Limited, [1970] I.C.J. Rep. 3 at paras. 92 & 93. [Barcelona Traction]. 186
Diallo, the Court determined that only the State of incorporation of legal persons can exert their right to diplomatic protection.466
The recursive operation is even more important for an international court such as the
ICJ, given the incompleteness of international law in many fields, which forces international courts and tribunals to heavily rely on their previous judgments in order to provide sufficient and persuasive justifications for their decisions.
II.2.1.4. The International Court of Justice's Observation of Its External Environment
II.2.1.4.1. The International Court of Justice's Denial of Observation of the External Environment
Some statements made by the ICJ and its judges, in separate opinions, would suggest that the Court does not observe its external environment when deciding disputes and rendering advisory opinions, that all that is assessed is the law as it is. For instance, to respond to
South Africa's arguments that the Court should not render the advisory opinion requested by the General Assembly due to the external pressures the Court had received in the
Namibia case, the ICJ responded that it did not take into account such external pressures by arguing:
[I]t would not be proper for the Court to entertain these observations, bearing as they do on the very nature of the Court as the principal judicial organ of the United Nations, an organ which, in that capacity, acts only on the basis of the
466 Case Concerning Ahmadou Sadio Diallo. (Republic of Guinea v. Democratic Republic of the Congo, Preliminary Objections of 24 May 2007 at paras. 61, 93, 94. online: International Court of Justice
law, independently of all outside influence or interventions whatsoever, in the exercise of the judicial function entrusted to it alone by the Charter and its Statute. A court functioning as a court of law can act in no other way.467
Similarly, Judges Fitzmaurice and Spender pointed out in their joint dissenting opinion in
South West Africa Cases how they excluded any extra-legal factors from consideration in their discussions and votes in the Court in this case:
We are not unmindful of, nor are we insensible to, the various considerations of a non-judicial character, social, humanitarian and other, which underlie this case; but these are the matters for the political rather than the legal arena. They cannot be allowed to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.46
The Court seems to have also paid little attention to the economic situation, as an issue capable of influencing its decisions, of parties involved in disputes before it. In the dispute in the Case Concerning the Continental Shelf (Tunisia/Libyan Jamahiriya, Tunisia argued that the Court should take into account Tunisia's economic poverty and, particularly, the fact that it lacked natural resources, such as oil, in comparison with the significant ones
Libya possessed.469 The Court simply denied that it would take into account—observe— this external element of the controversy. It held:
"[T]hese economic considerations cannot be taken into account [in the delimitation].
They are virtually extraneous factors since they are variables which unpredictably fortune or calamity ... might at any time cause to tilt the scale one way or another."470
467 Namibia, supra note 423 at 23. 468 Joint Dissenting Opinion of Judges Fitzmaurice and Spender, South West Africa Cases (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections, [1962] I.C.J. Rep. 319 at 466. 469 See Continental Shelf (Tunisia/Libyan Jamahiriya), supra note 429 at para. 106. 470 Ibid, at para. 107. 188
It is important to highlight that the Court has also stated that compliance with its rulings, an external factor, is not an issue for the Court to evaluate. For instance, in Nicaragua
Jurisdiction the Court declared:
[A]s to the possibility of implementation of the judgment, the Court will have to assess this question also on the basis of each specific submission, and in the facts as then established; it cannot at this stage rule out a priori any judicial contribution to the settlement of the dispute by declaring the Application inadmissible. It should be observed however that the Court 'neither can nor should contemplate the contingency of the judgment not being complied with' (Factory at Chorzow, P.C.I.J., Series A, No 17, p. 63). ...
Moreover, when the U.S. Supreme Court was assessed in Part I of this chapter, the existence of the political question doctrine was presented as an illustration of the Court's observation of its external institutional environment in order to avoid clashes with political organs, or to adjudicate disputes whose solution should be left in the hands of the executive or the U.S. Congress. The ICJ has repeatedly denied the existence of such a doctrine in the international realm. For instance, in Legality of Nuclear Weapons, the ICJ held:
The question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and the rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law.
The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a 'legal question' and to 'deprive the Court of competence expressly conferred on it by its Statute'.472
Nicaragua Jurisdiction, supra note 459 at para. 101. 472 Legality of Nuclear Weapons, supra note 430 at 234. Previously, in its judgment in United States Diplomatic and Consular Staff in Tehran, the Court declared: [N]ever has the view been put forward that, because a legal dispute submitted to the Court is only one aspect of a political dispute, the Court should decline to resolve for the parties the legal question at issue between them. Nor can any basis for such a view of the Court's functions or jurisdiction to be found in the Charter or the Statute of the Court; if the Court 189
It is important to highlight that, as Gordon mentions, there is a significant difference between the political questions doctrine of the U.S. Supreme Court and the approach in the ICJ. In effect, the reason for the U.S. doctrine is the need to preserve the separation of powers between branches of government, in the sense that the U.S. Supreme Court does not adjudicate disputes that must be dealt with by the U.S. Congress. Certainly, such a need does underlie any similar doctrine by the ICJ.473 The Court explicitly said so in
Nicaragua Jurisdiction, when it responded to the U.S.'s argument that the solution of the dispute should be left in the hands of the Security Council. The Court stressed that such argument constituted
an attempt to transfer municipal-law concepts of separation of powers to the international plane, whereas these concepts are not applicable to the relations among international institutions for the settlement of disputes.474
Such a denial could be seen as providing further support for the proposition that the Court decides exclusively on the basis of the law and regardless of any external consideration.
However, there are multiple examples of the ICJ's decisions and open recognition that confirm of an opposite view.475
were, contrary to its settled jurisprudence, to adopt such a view, it would impose a far- reaching and unwarranted restriction upon the role of the Court in the peaceful solution of international disputes. Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), [1980] I.C.J. Rep. 3 at 20. [Diplomatic and Consular Staff]. 473 See Gordon, supra note 424 at 202, n. 63. 47 Nicaragua Jurisdiction, supra note 459 at para. 92. 475 The fact that the ICJ has not admitted the existence of the political questions doctrine at the international level does not mean that the Court recognizes no limit when dealing with issues characterized as legal. See Parts H.2.1.4.2 and II.2.1.5.4.1.4of this chapter, below, for concrete decisions in which the Court has tacitly recognized the existence of such limits to deal with legal questions or disputes. 190
II.2.1.4.2. The International Court of Justice's Recognition of Its Observation of the External Environment
Some authors have highlighted that international courts need to look at their external environment. For instance, Charney pointed out that:
[C]ourts must be sensitive to the society in which they operate, while at the same time remaining true to the law they are applying. In the international arena where the legal system is less developed, finding and applying international law requires even greater consideration of the international 476 environment. ...
The need to keep a careful eye on the external environment is justified by Charney as follows:
[I]nternational courts do not have the benefit of a particular sovereign that can compel adjudication or enforce court orders. The viability of such international courts largely rests, rather, on two foundations: the existence of an international legal political environment which considers adjudication preferable to other methods of dispute resolution, and a forum that has the respect of the potential litigants. 77
The ICJ and its members have accepted that considerations related to external factors have played a role in the adjudication of the case or in the answer to and justification of the
A no advisory opinion requested by the UN General Assembly. An acceptance that the Court
476 Charney, supra note 441 at 302. 477 Ibid, at 303-04. 4781 am not concerned here with the fears that some have had regarding the partiality of the ICJ to favour certain type of States. For instance, Bethlehem points out: "[T]here is also, in some quarters, a sense that the Court's judgments are informed by political considerations rather than only considerations of law. While it is appropriate that the Court is sensitive to the wider dimension of the case, the question is whether that sensitivity drives the Court's decision in the matter." Daniel Bethlehem, "Remarks in Panel 'The International Court of Justice at 60: Performance and Prospects'" in Charlesworth & Donovan, supra note 434,403 at 403. Problems of apparent partiality are exceptional. In the 97th annual meeting of the American Society of International Law, one of the members of the U.S. Department of State who acted in the Nicaragua case held that there were "widespread rumours that one of the judges sitting on the ICJ had actually assisted Nicaragua." Robinson, supra note 416 at 281. However, the account of one of the U.S. lawyers of the Nicaragua legal team indicates that there was no such assistance, but that there was only a meeting with a 191 may be sensitive to its external environment and does not act in complete isolation was provided by a former President of the Court, in the following terms:
We in the Peace Palace do not live in an ivory tower, we are aware of the turmoil and change going on in almost every part of the world. We are aware if the new social problems, the economic aspirations, and conflict of interest which advances of science and technology are bringing. ... 7
Another former President of the ICJ, Judge Mohammed Bedjaoui, while acting in that capacity, stated clearly that the ICJ keeps a close eye on its external environment, when presenting the Court's annual report to the UN General Assembly:
[S]ome States may perhaps tend to have misgivings about judicial settlement on the grounds that, unlike a political settlement, it would be completely outside their control and hence, given the reputed rigidity of legal rules, always liable in the end to turn out less favourably to themselves.
I think I can safely say here that such fears are largely groundless. The Court, by the nature of the law it applies, by the role it fulfils and by its composition, is better able than any other judicial institution to withstand blind applications of the law. While being sufficiently precise to offer those who come before it all the legal security to which they legitimately aspire, international law remains at the same time and in essence a flexible and open law. ...
The Court takes its decisions on the basis of law, following a most minute and meticulous examination of each case, without failing to take into account of the meta-juridical factors, the expectations of the parties and the imperative requirements of peace and justice ...480
judge before the Application was filed to determine whether the Court would decide the case on legal grounds or whether it would bend to U.S. pressure. According to this lawyer, the Court's judge affirmed that "the composition of the Court was such that it could be counted upon to decide the case on its merits." See Paul S. Reichler, "Holding America to Its Own Best Standards: Abe Chayes and Nicaragua in the World Court" 2001 (42) Harv. Int'l L.J. 15 at 24. 479 Waldock, supra note 422 at 5. 480 Judge Mohammed Bedjaoui, as quoted by Elihu Lauterpacht. Elihu Lauterpacht, "The Judicial and the Meta-Juridical in International Law" in Makarczyk, supra note 454, 215 at 216. Likewise, Rosalyn Higgins argued well before becoming a judge of the Court that: Reference to the 'correct legal view' or 'rules' can never avoid this element of choice (though it can disguise it), nor can it provide guidance to the preferred decision. In making this choice, especially when the balance is very fine, one inevitably must have consideration for the humanitarian, moral, and social purposes of the law. In this sense, therefore, policy considerations, even though they differ from 'rules' are an integral part of that decision-making process which we call international law. 192
There is very little need to add anything else to illustrate that the ICJ observes its external environment—the meta-juridical factors and the imperative requirements of peace and j ustice—carefully.
But in addition to declarations, concrete evidence of observation of the external environment exists in the jurisprudence of the Court, because the issues the Court is confronted with are precisely those that concern most the international community during a specific period of time. For instance, in the case Right of Passage over Indian territory, a dispute involving three remaining small colonial territories in the middle of India,
Portugal claimed before the ICJ that it had a right to passage, which passage had been blocked by India, who was asking for Portugal to relinquish the colonies, who had ousted the Portuguese rulers in the colonies, and who denied Portuguese forces passage to restore control of the colonies. The Court simply could not avoid the external environment critically marked by the post-colonial era. Colonialism in India was over, and the Court managed to avoid a strict ruling based on international law by rendering a cryptic judgment whose practical effect was to recognize the end of colonialism in India. The
Court held that Portugal had had such a right in the past but refused to answer whether it had the right at the time of the judgment.481
Another clear example of observation of the external environment by the ICJ is its judgment in the Nuclear Test Case (New Zealand v. France). France did not appear before
Rosalyn Higgins, "Policy Considerations and the International Judicial Process" (1968) 17 Brit. Y.B. Int'l L. 58 at 62. 193 the Court, did not comply with the provisional measures requesting it not to carry out
atmospheric nuclear tests, and withdrew from the Convention on the basis of which
New Zealand had based the jurisdiction of the Court.484 On all accounts, France was determined to pursue its defence policy and showed no sign of willingness to implement
an adverse ruling on the merits of the dispute, namely, that its nuclear tests were contrary to international law. The way the ICJ disposed of this case provides strong evidence of its reluctance to adjudicate this highly sensitive dispute right in the middle of the Cold War.
First, the Court interpreted New Zealand's submissions and narrowed the scope of the dispute. New Zealand had argued that nuclear tests in general contravened international law, and the Court held that New Zealand's concerns were only related to atmospheric nuclear tests. Once France declared that it would conduct another atmospheric test and that this would be the last, the ICJ paid no attention to New Zealand dissatisfaction with such declarations and created the concept of unilateral statements as a source of
international obligations. The application of this novel concept allowed the Court to conclude that France had committed itself before the international community not to carry
AQQ out further atmospheric nuclear tests and that, therefore, the dispute with New Zealand had ended. On these bases, the Court avoided having to rule in such a complex dispute
481 See Shulte, supra note 458 at 119-20. 482 See Nuclear Test Case (New Zealand v. France), [1974] I.C.J. Rep. 458 at para. 4. [Nuclear Test Case]. 483 See ibid, at para. 19. 484 See ibid, at para. 63. 485 See ibid, at paras. 29-30. 486 For New Zealand's statements in this regards, see ibid, at para. 37. The Court said that it was for it to determine the value of the French declarations announcing the termination of atmospheric nuclear tests. See ibid, at para. 50. 48^ See ibid, at paras. 46,48,49. 1 See ibid, at para. 53. 489 See ibid, at para. 54. 194 involving such a critical issue. Some authors have the view, shared by this one, that the
ICJ decided this case with a careful eye on the external environment of the dispute and made use of procedural techniques and novel substantive doctrines aimed at reaching the result that allowed the Court not to clash with a powerful actor regarding a very sensitive
491 issue.
In other cases, the observation of the external environment by the Court has been evidenced by the rejection of certain arguments on the basis of the practical consequences that embracing them would produce. For instance, in Barcelona Traction, the ICJ had to assess whether the State of nationality of the shareholders could seek the diplomatic protection of a company, despite the fact that it was not incorporated under the laws of that State. The Court rejected this possibility because of its consequences and held that
"[t]he adoption of the theory of diplomatic protection of shareholders as such, by opening the door to competing diplomatic claims, could create an atmosphere of confusion and insecurity in international relations .. ,"492
In its effects, the ICJ decision in Nuclear Test Case is virtually identical to the doctrine of mootness developed by the U.S. Supreme Court. 491 The techniques developed in this case constituted self-transformations and were the following: the creation of the inherent power to interpret complainants' applications and of the capacity to assess public evidence not produced before the ICJ, and the development of the ICJ as the agenda-setter of disputes once parties have established their framework. For a detailed analysis of these techniques, with specific reliance on the Nuclear Test Case decision, see below Parts II.2.1.5.4.1.2, II.2.1.5.4.1.5, and II.2.1.5.4.1.4 of this chapter, respectively. Thomas Franck, in an editorial comment in the American Journal of International Law, considers that "the Nuclear Test Ban case ... is a judicial avoidance of confrontation with political authority: France and, indirectly, China ... In such a confrontation, the Court's decision, if unfavourable to the two nuclear powers, might well have been ignored ..." Thomas M. Franck, "World Made Law: The Decision of the ICJ in the Nuclear Test Cases" (1975) 69 A.J.I.L. 612 at 612. For another analysis of this judgment see Serge Sur, "Les Affaires des Essais Nucleaires (Australie c. France. Nouvelle-Zelande c. France. CI.I.J. - Arret du 20 Decembre 1974), (1975) LXXIX R.G.D.I.P. 972. 492 Barcelona Traction, supra note 465 at para. 96. 195
The observation of the external environment by the ICJ is further elaborated below in Part
II.2.1.5.3.2 of this chapter. It suffices to say here that, despite the existence of certain statements suggesting that the Court does not carry out such observation, the fact is that, on one hand, even Presidents of the Court have at times recognized such observation, and on the other, concrete undesired external consequences have been declared by the Court to be the reason for rejecting some legal propositions and have even forced the Court to acknowledge its limitations.
II.2.1.5. The Self-Transformative Autonomy of the International Court of Justice
A few decades before Luhmann developed his theory of autonomous systems, and in anticipation of the application of his theories to judicial bodies, Hersch Lauterpacht described the ICJ's autonomy to self-transform when he said, "Institutions that are set up for the achievement of definite purposes grow to fulfil tasks not wholly identical with those which were in the minds of their authors at the time of their creation."493
Lauterpacht's remark confirms the argument made in this thesis, which proceeds to
determine why these changes take place, what they have been, and under which conditions
they were introduced.
As was illustrated in Part 1.2.6 of Chapter I, by applying Luhmann's theories, a court has
autonomy to self-transform when it satisfies three requirements: (i) the court has the
means to adopt decisions related to itself; (ii) it must be in a position to choose whether or
not to self-transform, and if so, what specific self-transformation it will carry out; and (iii) 196 the action that transforms the court is directed by the court in the sense that it can decide the opportunity, extent, and rationale of the self-transformation in light of its external environment and through the operation of its own rules of functioning.
It can be said that, as matter of institutional structure, the ICJ possesses autonomy to introduce self-transformations by satisfying all three above-mentioned requirements. In order to demonstrate this assertion, this thesis is divided into five sections. The first three analyze each of the requisites. The fourth section will present the main self- transformations introduced by the ICJ, and the fifth section will show the main constraints the Court has faced when exercising its self-transformative autonomy.
II.2.1.5.1. The International Court of Justice Adopts Decisions Regarding Itself
There are several situations that place the Court in a position to adopt determinations regarding itself. From a general perspective, two different means of proving that the ICJ satisfies this requirement may be identified: the Court's capacity to decide disputes regarding its own jurisdiction and to determine who can intervene before it.494
The absence of compulsory jurisdiction forces the Court to deal very often with its own jurisdiction, in response to respondents' objections to it; and in fact, it has often declared
493 Lauterpacht, Development, supra note 439 at 5. 494 These are only examples and are not the only ones. For instance, a significant power to adopt decisions about itself is consecrated in Article 30.1 of the Statute, by virtue of which "The Court shall frame rules for carrying out its functions. In particular it shall lay down rules of procedure." Although such rules must be in conformity with the Statute, the Court has certain latitude in regulating how to conduct its own proceedings. However, an analysis of how the ICJ has exerted this capacity goes well beyond the scope of this section. 197 that it lacked jurisdiction to hear or adjudicate cases, or it has limited the scope of the dispute before it. The ICJ is empowered by Article 36(6) of its Statute to determine its own jurisdiction. This provision sets forth:
In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.
In fact, one of the requirements for jurisdiction is the existence of legal disputes, pursuant to Article 36(2) of the Statute. It is the ICJ, as is the case with the U.S. Supreme Court, that determines when there is a legal dispute between States.
It is by virtue of this power that the ICJ has also elaborated doctrines aimed at preserving its jurisdiction when States adopt measures seeking to preclude the Court from hearing the dispute in question, such as termination of the compulsory jurisdiction of the Court pursuant to Article 36.2 of its Statute—the so-called optional clause—or of the Treaty containing the compromisory clause assigning the Court jurisdiction to resolve disputes arising therefrom. The Court has held that its jurisdiction must be evaluated at the time of the application only, and it is not affected by any subsequent decision by respondent
States.496
495 This power was exercised by the ICJ in Nicaragua. During the proceedings, and before its withdrawal, the U.S. claimed that its dispute with Nicaragua was not a legal one. (See Nicaragua Merits, supra note 462 at para. 33). The Court responded unequivocally: [T]he question whether a given dispute between two States is or is not a 'legal dispute' for the purposes of this provision may itself be a matter in dispute between those two States; and if so, that dispute is to be settled by the decision of the Court in accordance with paragraph 6 of Article 36. ... Ibid. 496 For instance, in the Nicaragua case, the Court asserted jurisdiction on November 26, 1984, the U.S. terminated the Treaty of Friendship, Commerce and Navigation with Nicaragua on May 1, 1985, and on October 7, 1985, the U.S. deposited in the UN a notice terminating the declaration of acceptance of jurisdiction under the optional clause of Article 36(2) of the Statute of the Court. (See Nicaragua Merits, supra note 462 at para. 36). The Court determined that such decision did not affect its jurisdiction. (See ibid. at para. 36. The ICJ reiterated its jurisprudence in this regard set forth previously in the Nottebohm Case 198
The ICJ is also in a position to adopt decisions related to itself when it determines the scope of States' reservations to the jurisdiction of the Court. It is for the Court, not for the reserving respondent State, to determine the scope of the reservation and, therefore, of the
Court's jurisdiction, pursuant to Article 36.6 of its Statute.497
Finally, the ICJ has the power to adopt decisions related to itself by determining who can intervene before it and who cannot. For instance, a determination of this sort was taken by the ICJ in its Advisory Opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory.*99, For reasons that are obvious, Palestine, which is neither a formal member of the United Nations nor a party to the Statute of the ICJ, but which has the status of Observer, sought to participate in the proceedings. Despite the opposition of Israel, the ICJ allowed Palestine's intervention.499
(Liechtenstein v. Guatemala. Nottebohm Case (Liechtenstein v. Guatemala, Preliminary Objection, [1953] I.C.J. Rep. Ill at 123. [Nottebohm]. 497 See the ICJ decision in the Phosphates in Morocco case, in which the ICJ determined that it lacked jurisdiction because France's declaration of acceptance of jurisdiction did not include past disputes and the facts of the controversy had taken place before such declaration. See also the ICJ decision in Armed Activities, where the Court dealt with the scope of Rwanda's apparent withdrawal of the reservations to Article IX of the Convention, attributing to the ICJ jurisdiction to adjudicate disputes involving violations of the Genocide Convention. The Court concluded that Rwanda had not withdrawn its reservations. See Armed Activities, supra note 439 at paras 40-44. See generally Lauterpacht, Development, supra note 439 at 96, 97. Legal Consequences of the Construction of A Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004. online:
As was illustrated, there is no doubt that the ICJ can adopt determinations that have a direct impact on it as such, thereby satisfying the first requirement for the existence of the
Court's autonomy to self-transform.
II.2.1.5.2. The International Court of Justice Has A Set of Options to Choose from When Deciding a Case Involving a Self-Transformation
It was said above in Part 1.2.6.1.2 of Chapter I that the second requirement for the existence of a Court's autonomy to self-transform is its ability to select its transformation from a set of possible alternatives. The ICJ also meets this second requisite.
In effect, as was mentioned in the above-mentioned part of Chapter I, one of the sources of indeterminacy, which leads to the existence of the set of alternatives to select from at the time of a self-transformation, is the impossibility of predicting in advance all future possible situations a Court might face. The situation is even more complex regarding international law, as Lauterpacht made clear when he said that "the indeterminacy of law is particularly strong in international law."500
A telling example the impossibility of anticipating the application of international law to future events took place in the request of an advisory opinion in Reparation. There, the
General Assembly requested the Court to determine whether the United Nations had an international personality, and if so, if it could make a claim for the reparations suffered by
Lauterpacht, Function, supra note 442 at 70. 200 its agents or employees.501 The Court openly recognized the absence of legal guidance in this regard by stating that "this question ... is not settled by the actual terms of the Charter
..." The Court determined, based more on logic than on law, that the United Nations had an international personality and could bring international claims for those damages it had suffered directly as an institution. Then the Court turned to the question of whether international organizations could claim for the damages suffered by its agents, and again, the Court recognized that the Charter had little to say in this regard:
The Court is here faced with a new situation. The question to which it gives rise can only be solved by realizing that the situation is dominated by the provisions of the Charter considered in the light of principles of international law.503
Undeniably, given the considerable interpretative latitude offered by the general principles of international law, it is evident that the Court had few constraints; on the contrary, it had ample room to answer the question posed by the General Assembly in the above- mentioned request for an advisory opinion, which ultimately the Court answered in the affirmative.504
The existence of a set of possible alternatives to choose from at the moment of rendering a judgment was explicitly accepted by the ICJ in its judgment in Continental Shelf
501 On December 3, 1948, the UN General Assembly adopted a Resolution motivated by the "series of tragic events which have lately befallen agents of the United Nations engaged in the performance of their duties ...," in which it asked the Court to answer die following questions: I. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victims or to persons entitled through him...? Reparation, supra note 431 at 175. 502 See ibid, at 179. 201
(Tunisia/Libyan Jamahiriya) where it said that "when applying positive international law, a court may choose among several possible interpretations the one which appears, in the light of the circumstances of the case, to be closest to the requirements of justice."505
Moreover, Lauterpach made clear the existence of alternative choices for the ICJ to select from when deciding disputes under international law. He said:
The necessity of choice between conflicting legal claims is of the very essence of the judicial function, whether within the State or in the international sphere. ... [This choice] is not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit.506
Although it would be desirable to have a more robust set of Court's and judges' pronouncements recognizing the availability of a set of plausible alternatives to choose from, those mentioned in this section may well be enough to support this point. Indeed, the ICJ's statements in Reparation and Continent Shelf (Tunisia/Libyan Jamahiriya) and those of its former judges, Lauterpacht and Schwebel, have the following feature in common: they highlight that international law does not impose a clear solution to problems put before the Court and that it has a set of options to adjudicate issues raised in disputes. To be sure, not all issues have the novelty of the Reparations case, but the room to decide, to use Schwebel's words, is not simply confined to cases of absolute novelty or
Mi Ibid, at 182. 504 See ibid, at 183. 505 Continental Shelf (Tunisia/Libyan Jamahiriya), supra note 429 at para. 71. 506 Lauterpacht, Development, supra note 439 at 399. See also for a similar view, David P. Forsythe, "The International Court of Justice at Fifty" in A.S. Muller, D. Raic & J.M. Thuranszky, eds., The International Court of Justice. Its Future Role After Fifty Years (The Hague: Martinus Nijhoff Publishers, 1997) 385 at 393. Also Judge Schwebel implicitly made a similar point when referring to the definition of the term "armed attack," recognized in his dissenting opinion in Nicaragua that "there is room for the Court's construction of the legal meaning of an armed attack, as well as for some of its other conclusions of law (in that case)." Dissenting Opinion of Judge Schwebel in Nicaragua Merits, at 272. 202
to topics related to continental shelves or the right of self-defence. In fact, the ICJ's
statement in Continent Shelf (Tunisia/Libyan Jamahiriya) admitting the existence of
several possible options refers to international law in general, and so does Lauterpacht's passage.
Finally, despite the fact that none of the above-mentioned statements makes explicit reference to those situations in which the international law issue put before the Court has
an institutional dimension for it in the sense that a self-transformation is involved, nothing
suggests that they are excluded from the scope of the Court's and its judges' statements.
This is so because, in addition, the Statute and the Rules of the Court cannot provide for a particular answer to all possible situations the ICJ may deal with regarding its procedure,
and therefore, room to choose from a set of possible interpretations also exists for the
Court regarding these norms. Such room will be evident below in section II.2.1.5.4, in
which some of the self-transformations carried out by the ICJ will be analyzed in detail.
On this basis, the ICJ satisfies the second requirement necessary for having autonomy to
self-transform, in the sense that the Court is in a position, when deciding a case in which a
self-transformation is at issue, to determine whether to self-transform or not, and if so, to
choose which of the of the alternatives available will be adopted in the respective judgment. 203
II.2.1.5.3. The International Court of Justice's Steering of Its Self-Transformations by Its Ability to Select Their Opportunity, Extent, and Rationale
The final condition that Luhmann attaches to the autonomy to self-transform is the
requirement that autonomous systems must steer their self-transformations by selecting
them through the operation of their internal rules of operation. Applied to courts, it has
been posited that their steering of the process of self-transformation exists when courts are
able, through their collegial decision-making process, to decide the timing, scope, and justification of any self-introduced institutional transformation, in light of the external
environment of the case.
The ICJ fulfils this third requirement, and in order to demonstrate this assertion, this
subpart is divided into four subsections. The first describes the collegial decision-making
process of the Court. The second subsection provides evidence that ICJ judges discuss the
Court's external environment when carrying out the internal collegial decision-making
process. The third subsection illustrates the consequences for judges' individual positions
of the operation of this collegial process. Finally, the fourth shows how the self-
transformations introduced by the Court provide evidence that the Court is able to steer
the exercise of its autonomy to self-transform by selecting the timing, scope, and justification of any self-transformation through the operation of its collegial decision
making process, taking into account the external environment of the case at hand. 204
II.2.1.5.3.1. The Collegial Decision-Making Process of the International Court of Justice507
Except in Chamber cases selected on the basis of Article 29 of the Statute, the
International Court of Justice decides on the basis of discussion by its 15 members, or 16 if one of judges is a national of one of the parties, in which case the other party has the right to appoint an ad-hoc judge pursuant to Article 31.2 of the Statute, or 17 if none of the judges is a national of the parties and each of them appoints an ad-hoc member of the
Court as provided in Article 31.2. After the completion of the oral hearing, the deliberation process comes next, which is set forth in the ICJ's Internal Judicial Practice
Resolution.
The process starts with what has been termed "Article 3 deliberation," in which the
President of the Court submits for discussion a written list of the issues that in her view the Court must deal with in order to dispose of the case at hand. As a result of this collegial deliberation, it is possible that new subjects are added or deleted or presented in a different way.509 The next stage is the written notes, regulated by Article 4, which provides:
(i) At a suitable interval of time after this deliberation, each judge prepares a written note which is distributed to the other judges. (ii) The written note expresses the judge's view on the case, indicating inter alia:
This section deals only with the decision-making process of the full Court and does not include a similar analysis when the Court decides through ad-hoc Chambers. For a general institutional evaluation of these Chambers, see Stephen M. Schwebel, "Ad Hoc Chambers of the international Court of Justice" (1987) 81 A.J.I.L. 831. 508 See Jennings, "Role", supra note 86 at 21. 509 See ibid, at 21. 205
(a) whether any question which has been called to notice should be eliminated from further consideration or should not, or need not, be decided by the Court; (b) the precise questions which should be answered by the Court; (c) his tentative opinion as to the answers to be given to the questions in (b) and his reasons therefore; (d) his tentative conclusion as to the correct disposal of the case.510
The purpose of the Article 4 written notes is to ensure that each of the 15 judges fully participates in the discussion of all cases before the Court,511 participation which is further enhanced by the internal practice developed in which each judge has access to her colleagues' written notes only once she has deposited hers. The purpose of this stage is clearly expressed by Jennings: "This mechanism of the notes ensures that, as far as may be, that every judge begins by himself working independently upon his note." The deliberation is enhanced by the tentative character of the notes, in the sense that judges do not commit themselves to the positions that they may have assumed in their written notes.514
The next stage is, as expected, the judges' study of their colleagues' written notes and informal discussion on them, and then the collegial decision-making process continues with the formal deliberation. In this phase, each judge, in inverse order of seniority, presents her or his views to the Court, which are then fully discussed. Judges may be asked questions by their colleagues and expect critical and thoughtful assessments. After
510 As quoted in ibid, at 22. 5,1 See ibid, at 22. 512 See ibid, at 23. 513 ibid, at 23. 514 Some judges do not even set any position down at this stage but analyze and criticize the different perspectives. See ibid, at 24. 206
this deliberation, a sense of the orientation of the ruling or advisory opinion emerges, and
the next stage is the appointment of the members of the drafting committee.
The drafting committee is composed by the President, if she is with the majority, and two judges, usually those whose written notes and oral arguments are closely related to the
majority as reflected in the deliberation.515 The object of this phase is to produce a first
draft, which, once ready, is circulated to the members for further comments. Once the drafting committee receives additional feedback, it produces a revised draft, which is
submitted to the Court for "first reading."516
The first reading is a time-consuming exercise, because after the revised draft has been read, a member of the drafting committee explains the changes made in response to other judges' views or concerns, the reasons therefore, and why other amendments suggested by
S1"7
them were not incorporated. The revised draft is then submitted for full discussion in
which judges recommend additions or deletions of paragraphs, and agreements between judges may take place regarding specific issues reflected in paragraphs of the revised
draft.518
515 As provided by Article 6(i) and (ii) of the Internal Judicial Practice Resolution. However, it is important to highlight that, contrary to the U.S. Supreme Court's internal process, the members of the drafting committee are selected by votes of the judges of the Court. See Shigeru Oda, "The International Court of Justice Viewed from the Bench (1976-1993)" in Recueil des Cours. Collected Courses of the Hague Academy of International Law, vol. 7 1993 (Dordrecht: Martines Nijhoff Publishers, 1995) at 121. [Oda, "Bench"]. 516 Sometimes small committees are appointed to deal with particular issues and report back to the full ICJ. See Jennings, "Role", supra note 86 at 20. 511 See ibid, at 27. 518 See ibid, at 27. 207
At this stage of the process, the drafting of separate or dissenting opinions starts to play a role.519 Drafts of opinions of this sort are circulated to all members of the Court after the first reading and are aimed at inducing changes to the majority view to be reflected in the second revised draft for the "second reading." The drafting committee may respond to these drafts of separate or dissenting opinions in different ways: either by deleting certain arguments, refining them, or using other ones. This is why Rosenne claims that "the impact of draft individual opinions on the ultimate text of the Court's pronouncement is not infrequently considerable."520 The ICJ itself has recognized the value of such separate opinions in the following terms:
[GJiven the multiplicity of judges dealing with a case, it is likely that some individual judges will feel that one or more of the considerations that determined their votes require more specific treatment; or there may remain point of great legal interest that a judge feels impelled to raise or explain, and such is the interplay of views during the Court's deliberations that these points shed light on, or themselves being illuminated by, corresponding passages in the Court's decisions. ... In short, the individual opinions are or may be essential to the full understanding of the Court's decision.521
519 Article 57 of the Statute of the Court sets forth: If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion. 520 Shabtai Rosenne, "Publications of the International Court of Justice" (1987) 81 A.J.I.L. 681 at 689. [Rosenne, "Publications"]. Moreover, it is the possibility of such statements that sometimes forces the Court to attempt to respond to them in its judgments, in ways that may seem strange to outside readers. As Thirlway argues, "[a]s so often happens, a cryptic statement in a judgment proves to be a reply or a refutation of an argument in a judge's appended opinion, and may be virtually unintelligible or even misleading taken in isolation." H. Thirlway, Non-Appearance Before the International Court of Justice (Cambridge: Cambridge University Press, 1985) at 107. 521 UN Doc. A/41/591/Add 1 (1986), as quoted by Rosenne, "Publications", supra note 520 at 689. See also in this regard Jennings, "Role", supra note 86 at 29, and G. G. Fitzmaurice, "The Law and Procedure of the International Court of Justice: General Principles and Substantive Law" (1950) 77 Brit. Y.B Int'l L. 1 at 1 & 2. For a detailed history of the evolution of the institutional acceptance of separate opinions in the ICJ, see Farrokh Jhabvala, "Declarations of Judges of the International Court of Justice" (1978) 72 A.J.I.L. 830, and of the same author "Individual Opinions under the New Rules of Court" (1979) 73 A.J.I.L. 661. 208
A very important element of the internal collegial decision-making process of the ICJ is
the fact that all the judges actively intervene in the discussion of both the judgment and its
appended separate opinions. Even those judges who are in the minority position
regarding specific issues keep wholly engaged in the drafting of the judgment, and their
views must be heard as a matter of right. 23 But this process also takes place regarding
separate opinions, in the sense that the drafting committee may make a suggestion to
authors regarding their opinions, whose adoption are left in the authors' hands.
Once the separate opinions are known and debated formally and informally, the drafting committee prepares a third draft in which it seeks to respond to the main concerns
expressed in such opinions, and the Court votes. The vote takes place regarding each of
the identified issues, and judges may request a specific vote on an issue by virtue of
Article 8(ii)(a) of the Resolution.
A very important point to highlight is the considerable number of separate opinions
appended to judgments, orders, and advisory opinions of the ICJ. In fact, never has the
Court been able to render a unanimous decision, quite in contrast, for instance, to the
WTO AB, which is at the opposite end of the spectrum.526 The practice of promoting
separate opinions started in the 1960s, and the reason for such proliferation is provided by
Judge Oda:
522 Authors of concurring or dissenting opinions must be disclosed by virtue of Article 57 of the Statute and Article 95 of the Rules of the Court. Also important to highlight is the fact that the Court has the power to request of judges the deletion of paragraphs of such opinions. However, this power, according to Sir Jennings, "is seldom exercised." Jennings, "Role", supra note 86 at 29. 523 See ibid, at 32. 524 See ibid. 32. 525 See Oda, "Bench", supra note 515 at 122-23. The same can be said after 1993. 209
The reason for this great number and volume of dissenting and separate opinions is derived from the process by which the judgment is formulated. Those minority judges who exhausted their studies of the subject before the Court reached its decision based on an exchange of views by all the judges, cannot easily abandon their own points of view.5 7
Stephen Schwebel, also a former judge of the Court, has explained the rationale of allowing free separate opinions. Responding to a question regarding the proliferation of opinions of this sort as compared with the prohibition of them in the European Court of
Justice, he stressed the following:
[I] do not think that you could have the court operating as a universal court without that facility. It reflects the fact that the degree of shared community values on the world plane is far less than it is in the European Community. The European Community is, in a sense, a supranational organisation of limited power and its court has played a major role in the development of these powers. The International Court of Justice is very different indeed. It is a court which does not have the compulsory jurisdiction which the European Court enjoys and it is an organ of the international community which is infinitely more fragmented and primitive. In such a situation it could be extremely difficult — unworkable in fact — to have judges of the diversity required and yet not permit dissenting opinions.528
Despite the fact that, as Jennings and Lauterpacht point out, separate opinions contribute to the understanding of the judgment, order, or advisory opinion, needless to say, it may also reflect a lack of accommodation by the majority of the views of the minority, even though Jennings explicitly claims that the ICJ fully encourages debates up to the end of the decision-making process. Also, the proliferation of separate opinions may open the
526 More on this below in Part III.3.5.3.1.3 of Chapter III. 527 Oda, "Bench", supra note 515 at 125. Judge Rosalyn Higgins holds a similar view. See Rosalyn Higgins, "Comments on the Report: The International Court of Justice: Efficiency of Procedures and Working Methods. Report of the Study Group with Additional Comments" in J.P. Gardner & Chanaka Wickremasinghe, The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997) 102 at 104. 528 Stephen Schwebel, "Interview", in Sturgess & Chubb, supra note 366, 470 at 471 [Schwebel, "Interview"] 529 Jennings states with regard to Article 57 of the Statute of the Court: 210 ways for criticizing the rationale of the majority's view so as to impair its precedential value for future cases. As Judge Bedjaoui, former President of the Court, pointed out, such proliferation of separate opinions "prejudice the very integrity of the decisions rendered, thus necessarily impairing their scope and meaning."530
Having described the different stages of the internal decision-making process of the Court, the next section demonstrates how its judges debate about the external environment of the
Court, and not only about legal subject-matters. If this is so, it is possible to state that, when the ICJ selects the timing, scope, and rationale of its self-transformations, through its collegial process, it does so in light of its external environment.
II.2.1.5.3.2. The External Environment as a Matter Judges Debate About Within the Court's Collective Decision-Making Process
It was mentioned in Part 1.2.1.6.1.3.4 of Chapter I that judges in collegial courts deliberate about the external environment they face in each decision. It is this deliberation that puts courts in a better position to select the appropriate time, scope, and justification of any self-transformation in light of the conditions of such an environment, because, among other reasons, they are making the decision with more information about its likely impact.
It is possible to say that the operation of the collegial decision-making process of the ICJ
[This provision] is an essential part of the World Court ideal because it ensures that all views have to be taken notice when making the Court's decision. One hears rumours of some courts where views are taken down the list and when there is a majority for a view, the rest of the judges are note even asked. Jennings, "Role", supra note 86 at 25. 530 Mohammed Bedjaoui, "Comments on the Report: The International Court of Justice: Efficiency of Procedures and Working Methods. Report of the Study Group with Additional Comments" in Gardner & Wickremasinghe, supra note 527, 87 at 88. For another view opposing the proliferation of separate opinions, see Taft, supra note 434 at 400. 211 includes assessments of the external conditions the Court is confronted with in the case in question.
Jennings seems to deny this reality when he describes what members of the Court bargain about during the functioning of the Court's collegial debates:
The procedures of the deliberation have already been described above. It remains only to say here that all the argument there is legal argument. Most cases will involve political issues, sometimes of an acute and even urgent kind. Judges will, one hopes, be conscious of these and of the importance of the Court's decision in this regard. Nevertheless, all the arguments put in the course of the deliberation are recognizable arguments on points of law... ,531
This statement should be understood to mean that, from the beginning, starting with
Article 4 drafts and continuing with its subsequent stages, the ICJ's collegial decision making process is focused on legal issues. However, this drafting, as will be seen next, is done in light of debates and calculations among judges as to the external environment, which may include extra-legal topics such as the impact on parties, and non-parties, their possible reactions, and risk of non-compliance with the rulings, among others.
Other judges have been more open in their descriptions of the operation of the Court, suggesting different conclusions regarding the role that the external environment plays in the Court's collegial decision-making process. Stephen Schwebel stated, responding in an interview to the question, "Do you feel as a judge of this Court [ICJ] that there is an unspoken boundary you have to stay within, that if you go too far beyond what governments would accept, then the court's future would be in doubt?":
Jennings, "Role", supra note 86 at 46. 212
Any judge must balance his personal view of a case against the parameters in which he operates — the whole social context, the possibilities of a judgment being seen as not only judicially sound but realistic and effective ...532
No doubt, in carrying out the collegial decision-making process, for the judges of the
Court to arrive at realistic and effective judgments implies some assessments of the different legal alternatives the case at hand offers, whether a self-transformation is at issue or not, in light of their realism and effectiveness. It is not unthinkable that the realism and effectiveness Schwebel refers to have to do with the complaining and respondent States' reactions and with those of others potentially affected with each legal option at the disposal of the Court.
Manfred Lachs, former President of the ICJ, expands on the judges' evaluations of reactions by declaring that the Court has the means to somehow anticipate such external reactions. He said:
[T]he behaviour of states depends on so many factors it is very difficult to foresee what states will do, but you can foresee the reaction of a state to a certain judgment if you analyse it properly .. .533
There is no question that such analysis of States' potential reactions can only be carried out before the judgment at issue and during the performance of the collegial decision making process of the Court, and this assessment allows the Court to adopt decisions, included those related to itself, that best respond in terms of timing, scope, and justification to the external environment of the case.53
532 Schwebel, "Interview", supra note 528 at 471. 533 Manfred Lachs, Interview, in Sturgess & Chubb, supra note 366,461 at 463. [Lachs, "Interview"]. 534 The decision is the best possible, not on the basis of any objective standard, but only from the perspective of the Court. 213
II.2.1.5.3.3. The Effects of the Collegial Decision-Making Process of the International Court of Justice
It is not surprising that the operation of the ICJ's collegial decision-making process confirms many of the propositions put forward by Maltzman et ai, as illustrated in Part
1.2.1.6.1.3.3 of Chapter I, whose application to the ICJ judges means that their positions are not only determined by the applicable law of the case, but that they are also influenced by those positions of their colleagues and evolve throughout the decision-making process.
During the drafting process, the drafts of separate opinions have a concrete impact on the majority's arguments and conclusions, described by Jennings as follows:
[I]t may wish to answer a point made in a separate opinion. It may decide to delete a passage of its own draft, which passage has been effectively criticized, and to rely on alternative and better arguments.535
Jennings describes the final stages of the operation of the ICJ's collegial decision-making process in the following terms:
It is during the Article 5 deliberation that the probable majority begins to emerge. Sometimes the probable direction of that majority can be guessed beforehand from the notes and informal conversations. But often it cannot and there can be surprises. Judges do take the deliberations very seriously and are influenced by what their colleagues think and how they put it. The deliberation is always a real argument and aims at a collegial result 536
The overall effect of the internal operation of the ICJ's collegial decision-making process is so described by Hersh Lauterpacht:
Thus the collective method of formulating the pronouncements of the Court provides a means of reconciling the legitimate diversities of judicial outlook. In particular, almost up to the final moment in which the views of the Court as a
Jennings, "Role", supra note 86 at 29. Ibid, at 47. 214
whole and of individual Judges are reduced to print there is, because of collective deliberation, an opportunity of examining and answering the opposing opinions and of modifying, under the impact of argument, the views previously expressed. 7
Describing the operation of the collegial decision-making process of the Court, Griffith holds that "the majority judgement is prone to represent a negotiated result rather than the
CIO product of a completely articulated reasoning process ..."
So, the collegial decision-making process of the Court allows the majority of the members
of the Court to bargain and negotiate about each of the questions of facts and law and
about the external environment of the case and, on this basis, to select the most suitable
argument, in the majority's view, concerning these three issues. In the case of decisions
involving self-transformations, it is under the force of argument, as Lauterpacht states,
that the Court may debate about first, the scope; second, the timing; and third, the justification of any self-transformation in light of the external environment, during the
operation of the internal collegial process of the Court.
Or, in other words, if members of the Court deliberate about facts, law, and the external
environment, it can be posited that, through the collegial decision-making process, a
majority of the Court is formed in a case involving a self-transformation, about the extent,
opportunity, and rationale of the given self-transformation, thereby allowing the Court as
an entity to steer its autonomy to self-transform. It can be said that the collegial character
537 Lauterpacht, Development, supra note 439 at 65, as quoted by Jennings, "Role", supra note 86 at 32. Likewise, Jennings states that "[CJomplete changes of mind resulting from the whole process of deliberation do occur from time to time..." Ibid, at 24. 538 Gavan Griffith, "Commentary" in Bederman & Reed, supra note 446, 135 at 136. 215 of the ICJ introduces the preferences of the members of the ICJ. Such preferences compete with the external factors of the dispute in question and have to be considered during the collective decision-making process. In this way, collegiality allows the ICJ to possess a greater degree of independence from external pressures in the decisions it renders.
If the foregoing analysis suggests, in abstract, how the collegial decision-making process of the ICJ offers it an opportunity to steer its self-transformation, there is concrete evidence of such direction in the Court's pronouncements, which have necessarily resulted from the operation of the collegial decision-making process of the ICJ.
II.2.1.5.3.4. Concrete Evidence of the Court's Steering of Its Self-Transformative Autonomy Resulting from Its Collegial Decision-Making Process
The concrete demonstration of the proposition that the ICJ directs its process of self- transformation by selecting the opportunity, extent, and rationale of each self-imposed institutional modification, through the operation of its collegial decision-making process, will rest on evidence provided by specific self-transformations and on references to past decisions in which the Court has adjusted the timing, scope, and rationale of its decisions to the extant external environment, after having carried out such collegial decision-making process. Once again, there is no direct evidence regarding the concrete deliberations of the
Court, because, by virtue of its Statute, all materials produced therein must be destroyed after the issuance of the judgment. It is necessary to rely on what the Court does—instead of on what it or its members say—to show how the ICJ steers its self-transformative autonomy. Given that such results are contained in decisions that are attributed to the 216
Court, because they were rendered according to its internal rules of operation and gathered the support, at least, of the majority of its members, it suffices to prove that the direction of the self-transformation is conducted while the ICJ performs its collegial decision making.
The Court's steering of the exercise of its autonomy to self-transform is evidenced by the way it established the binding character of its provisional measures in its judgment in the
LaGrand Case (Germany v. United States of America). Although a full discussion of this self-transformation will be presented below in Part II.2.1.5.4.3, it suffices here to refer only to the way the Court introduced this self-transformation and how it proves that the members of the Court steered, during its collegial decision-making process, the extent of this self-transformation and decided that, among the options available, the most appropriate one was full binding effect to the Court's provisional measures, Article 41 of the of the Statute of the Court. This provision sets forth:
1. The Court shall have the power to indicate, if it considers that circumstances so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall on forthwith be given to the parties and to the Security Council.
Despite the fact that the wording of Article 41 could be seen as mostly hortatory and that respondent States, which not infrequently challenge the Court's jurisdiction, may not be willing to comply with such provisional measures when made against them, the Court established the binding character of these measures.
Italics added. 217
A summary of the facts of the case provides a clear view of the context within which the
Court carried out this self-transformation. Walter LaGrand and Karl LaGrand were born in
Germany in 1962 and 1963, respectively, and moved with their mother to the U.S. at an early age, without ever acquiring U.S. citizenship.540 In 1982, the brothers were arrested on suspicion of having participated in an armed bank robbery in which the manager was murdered and a bank employee was seriously injured.541 Pursuant to Article 36.1(b) of the
Vienna Convention on Consular Relations, the U.S. had to inform the LaGrand brothers of their right to communicate with the German consulate, given their status of persons
"arrested, in prison, custody."542 However, the U.S. did not inform the LaGrand brothers of their rights under the Convention, a fact that the U.S. acknowledged.543 During the trial, their lawyer failed to raise the issue of the violation of the Vienna Convention,544 and only in 1992 was Germany informed, but by the brothers, of their imprisonment.545 By this time, the accused had been convicted in the U.S. federal courts, and there, they, with the assistance of a lawyer provided by Germany, sought the review of their conviction on the basis, among others, of the violation of the Vienna Convention. However, such request was denied, because according to a U.S. procedural default rule, federal courts cannot review convictions on claims that were not made before state courts.546 In January 1999,
540 See LaGrand Case (Germany v. United States of America), [2001] I.C.J. Rep. 466 at para. 13 [LaGrand]. 541 See ibid, at para. 14. 542 Article 36.1 (b) of the Vienna Convention provides that: if he so request, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph. 543 See LaGrand, supra note 540 at para. 15. 544 See ibid, at para. 17. 545 See ibid, at para. 22. 546 See ibid, at para. 23. 218 the Supreme Court of Arizona decided that the LaGrands were to be executed in February and March 1999.547 Germany undertook various attempts to stop the execution by writing letters to the U.S. President, the Secretary of State, and the Governor of Arizona;548 however, such attempts were unsuccessful, and Karl LaGrand was executed.549 The day before the scheduled execution of Walter LaGrand, Germany took the case before the ICJ, requesting the indication of provisional measures,550 and the Court, the same day and as "a matter of the greatest urgency and without any further proceedings," ordered the following provisional measures:
The United States of America should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these proceedings, and should inform the Court of all measures which it has taken in implementation of this Order .. ,551
ceo
Germany sought compliance with the ICJ Order before the U.S. Supreme Court.
However the US Solicitor General stated that "an order of the International Court of
Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief." The U.S. Supreme Court dismissed the motion by Germany,553 and Walter
LaGrand was executed as scheduled.554 The case continued before the ICJ until it rendered
547 See ibid, at para. 25. 548 See ibid, at para. 26. 549 See ibid, at para. 29. 550 See ibid, at para. 30. 551 Ibid, at para. 32. 552 See ibid, at para. 33. 553 See ibid. The U.S. Supreme Court's decision was influenced by the U.S. Attorney General regarding the non-binding character of provisional measures issued by the ICJ. US Justice Souter, who was joined by Ginsburg, said in his concurring opinion that " ... In exercising my discretion, I have taken into consideration the position of the Solicitor General on behalf of the United States." Federal Republic of Germany v. United States et al, 119 S. Ct. 1016 (1999), as quoted in Schulte, supra note 458 at 378, n. 1772. 554 See LaGrand, supra note 540 at para. 34. 219 its judgment, in which the Court introduced the important self-transformation of conferring binding effect to its provisional measures.
The LaGrand judgment contains key evidence regarding the Court's steering of the extent of its self-transformations. It was mentioned before, in regard to the U.S. Supreme Court, how the introduction of the judicial review of legislation was carried out in two steps in order to introduce, first, the judicial review of federal legislation, and then, after and once such review was sufficiently established, it was expanded to cover state legislation as well. It will be seen below that this step-by-step process of self-transformation has also been carried out by the WTO Appellate Body. However, worth noting is the fact that the
ICJ introduced the binding nature of its provisional measures to its full extent, when it had available the option of doing it in a step-by-step process, knowing that litigation involving factual situations similar to LaGrand was highly likely.555
The Court could have made a distinction by deciding that provisional measures were binding only when the Court's jurisdiction had not been contested, as was the case in
LaGrand. Manouvel highlights the option the ICJ had to make the distinction and how it did not do so.
[L]a Cour avait la faculte de laisser planer un doute sur le caractere obligatoire absolu des mesures conservatoires en tout circonstances. Pour ce faire, il lui suffisait de ne pas faire allusion aux mesures conservatoires indiquees alors que sa competence etait contestee. L'affaire s'y pretait tout fait, la competence de la Cour n'etant pas recusee en l'espece. Elle en a decidee autrement en affirmant le caractere obligatoire des mesures conservatoires indiquees meme lorsque sa competence etait pour le moins fortement recusee par l'Etat
The Court had evidence provided by Germany that there were other Germans imprisoned in the U.S. who had not been granted their rights pursuant to the Vienna Convention, (See ibid, at para. 122), which mwant that one could predict future litigation between the two States. 220
defendeur. Elle l'a done fait avec nettete, ne se laissant aucune marge d'appreciation ulterieure pour distinguer entre les mesures conservatoires prononcees apres que sa competence ait ete etablie et celles prononcees avant qu'ellenel'aitete.
The Court could also have made another distinction, as Helene Ruiz Fabri and Jean Marc
Sorel point out, and restrained the mandatory character of provisional measures to those aimed at protecting human rights only. In fact, Judge Rosalyn Higgins had specifically dealt in depth with the indication of provisional measures to protect human rights in a journal article. However, the Court did not take this path and introduced the transformation to its full extent and at once. Moreover, this decision was unanimous, since no member issued a separate or a dissenting opinion in this regard.559
Perhaps the explanation for such a determination lies precisely in the past and ongoing relationship between the Court and the U.S. regarding the execution of foreigners in this country in cases in which foreigners have not been notified of their rights pursuant to the
Vienna Convention on Consular Relations. On the basis of the lack of binding effect of the
Court's provisional measures, the U.S. did not feel compelled to stay the execution of
556 Mita Manouvel, "Metamosphose de L'Article 41 du Statut de la CIJ" (2002) R.G.D.I.P. 103 at 126- 27. Manouvel furnishes evidence for the lack of this distinction in the fact that the ICJ cited five provisional measures in which the Court made orders to the parties. In four of them, the respondents had contested the jurisdiction of the Court. See ibid, at 127 n., 74. According to Manouvel, until 2002, the ICJ had pronounced regarding the order or the rejection of order of provisional measures in 35 opportunities. In 28 out of these 35 cases, the Court made decisions regarding such measures without having first decided it had jurisdiction over the disputes in question. See Manouvel, supra note 556 at 112, n. 21. 557 See Helene Ruiz Fabri & Jean-Marc Sorel, "Chronique de jurisprudence de la Cour internationale de Justice (2001)" (2002) 129 J.D.I. 815 at 855. 558 See Rosalyn Higgins, "Interim Measures for the Protection of Human Rights" (1997) 36 Colum. J. Transnat'lL. 91. 559 Vice-President Shi, Judges Koroma and Parra-Aranguren issued separate opinions, while Judges Oda and Buergenthal appended dissenting opinions to the judgment. 221
Walter LaGrand and before that of the Paraguayan citizen Angel Francisco Bread.
However, as was mentioned, the Court may have had in mind potential future cases in the
U.S. regarding virtually identical factual situations, in which the newly recognized binding effect of provisional measures may lead to the effective stay of the execution of death penalties of the foreigner involved whose rights under the Convention may have not been granted.561
It is worth mentioning that the LaGrand case offered the perfect opportunity to introduce the self-transformation to its fullest extent, since the Court could hardly find another factual situation in which it would receive stronger support for its decision, since the community of States generally condemns the death penalty. Moreover, the self- transformation took place in a situation in which the binding character was not able to produce any concrete result against the U.S. in the dispute at issue, since Walter LaGrand had already been executed; therefore, there was no need for the Court to calculate any
560 The Court had indicated in its order of April 9, 1998, that the United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all measures which it has taken in the implementation of this Order. Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 9 April 1998, [1998] I.C.J. Rep 248 para. 41. 561 Obviously, the fact that provisional measures are now binding should not lead to the assumption that they will transform such measures into an oft-used instrument, because the ICJ has established high thresholds that complainant States must satisfy in order to convince the Court that measures of this nature at required. In effect, the ICJ reads Article 41.1 of the Statute as imposing two conditions in order for the Court to indicate provisional measures: first, the damage must be imminent; and second, it must be irreparable if it takes place. These are high thresholds and recently led the Court not to indicate provisional measures in the Case Concerning Pulp Mills on the River Uruguay. See Case Concerning Pulp Mills on the River Uruguay, Order of 12 July 2006. online International Court of Justice:
Summarizing, the ICJ had many alternatives regarding the extent of the self- transformation related to the binding nature of its provisional measures. The facts of the case offered the Court the possibility of declaring such binding nature regarding provisional measures indicated only in disputes in which its jurisdiction was not being contested, or to protect human rights, or, finally, without restriction. The Court chose the third option and exercised its autonomy to self-transform to its fullest extent on this occasion.
The LaGrand judgment also illustrates how, through the collegial decision-making process, the Court steers the rationale of its self-transformations. No doubt, the binding character of provisional measures was a significant institutional change for the Court, and therefore, its justifications should have been a key component of the decision during the whole decision-making process, since the U.S., as was mentioned, had already contested this mandatory nature and since future cases were likely to take place. The debate during the collegial decision-making process illustrates that there were two positions. The first held that the rationale had to incorporate a detailed argument showing why the provisional
In fact, the very reason of the binding effect of such provisional measures could have been envisaged to prompt further litigation before the Court when the U.S. failed to notify foreign accused of their rights under the Convention, and they subsequently were condemned to the death penalty. The fact is that the LaGrand decision may have well brought the Avena case before the Court in which Mexico claimed that 57 Mexican nationals facing execution in the U.S. had been condemned without being informed of their rights under the Convention. On January 9, 2003, Mexico filed the case against the U.S. and on the same day requested of the Court the order of provisional measures to prevent the execution of the identified Mexican individuals. See Case 223 measures were binding, which prevailed and which will be presented below. The second one was based more on the very logic of provisional measures: the very purpose of their existence is that if they were to have an effect they had to be mandatory. This was Judge
Kodoma's position. Regarding Article 41 of the Statute, he stated:
[I]n my view the meaning of the provision is clear and objective and there can be no fundamental misunderstanding as to its purpose and meaning. It is also part of the Statute of the Court. The object and purpose of an order for provisional measures is to preserve and protect the rights and interests of the parties in a dispute before the Court, pending the final decision of the Court. It is for the Court to grant or reject a request for an order. It follows that, when an order is granted in accordance with the Statute, it is binding. Otherwise, there would be no purpose in making an order, or the purpose would be defeated .. .563
However, as will be seen below, the majority of the Court was of the view that a full legal reasoning was required in order to provide the most convincing rationale behind the mandatory character of its provisional measures. And this choice may well be explained by the fact that both the U.S. government and Supreme Court were of the view that these measures were not binding, so there was a need to provide the most convincing grounds possible for this decision. To rely on logic, as Judge Kodama was claiming, was, for the majority, definitely not enough as a strategy to make a convincing argument for the self- transformation. The Court clearly steered the justification in this case and chose the rationale that, according to the external environment of the present case and potential future ones, was the most appropriate.564
Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, at para. 12 online: International Court of Justice
As can be seen, the ICJ steers its process of self-transformations, because, through the performance of its collegial decision-making process in which the external environment is assessed, the Court is able to select the scope, timing, and justification of its self- transformations that better fit such environment. There is direct evidence of such steering in the judgment in the LaGrand case.
For the foregoing reasons, it is possible to say that the ICJ satisfies the third, and final, of
Luhmann's requirements: the Court's steering of its self-transformations. Consequently, it can be posited that the Court has autonomy to self-transform in ways similar to autonomous systems, as defined by Luhmann.
Having reached this conclusion, it is now time to delve into the illustration of how the
Court has exerted this autonomy by presenting in detail the main self-transformations adopted by the ICJ.
II.2.1.5.4. Self-Transformations of the International Court of Justice
The ICJ's exercise of its autonomy to self-transform is dynamic and accordingly reveals the fact that some self-transformation had been completed, others are well ongoing, others have started, and others did not take place. So far, the most significant institutional alterations self-introduced by the Court are the following: (i) the Court has increased its control over disputes; (ii) it has done the same concerning advisory opinions; (iii) the
Court established, as was already shown, the binding character of its provisional measures; (iv) it has started to order States how to implement its rulings; and (v) the ICJ 225 has expanded its jurisdiction to some extent. Finally, a self-transformation that was offered to the Court that it did not adopt, for good reasons, was the expansion and assertion of its jurisdiction on the sole grounds of alleged violations of norms of jus cogens.
H.2.1.5.4.1. The International Court of Justice's Increasing Control over Disputes
States are often reluctant to bring cases before international courts for fear of the outcome, as former ICJ's President, Mohammed Bedjaoui, pointed out in a passage already quoted above.565 One of the ways for States to attenuate such a risk is by asserting as much control as possible over their disputes. Paramount among them is the power to define the scope of their controversy in compromissory clauses assigning jurisdiction to the Court, and even the scope of the determination they want to receive from the Court.566 But not only do States want to have control over their disputes, they also may want to have as much control as possible over the facts before the Court, knowing the severe practical limitations it faces on carrying out its fact-finding activities.
See supra text accompanying note 480. 566 As was already mentioned above, in the North Sea Continental Shelf Cases, Germany, Denmark, and the Netherlands agreed to ask the Court to determine only the international law applicable to their boundary dispute and reserved for themselves the specific delimitation of the continental shelf. The Court rendered its judgment within the terms set forth by the parties. See in this regard, Shulte, supra note 458 at 137. 567 The restriction is not a legal one, because the ICJ is empowered by Articles 48 and 50 of its Statute to seek evidence on its own. However, sometimes the ICJ faces problems in embarking on fact-finding through the appointment of its own experts. For instance, in the Nicaragua case, justifications for doing so were significant since the U.S., the respondent, was absent. However, the Court refused to make use of this provision and highlighted some of the difficulties it would have faced. It said that a commission of experts: [I]f it was properly to perform its tasks, might have found it necessary to go not only to the applicant State, but also to several other neighbouring countries, and even to the respondent State, which had refused to appear before the Court. Nicaragua Merits, supra note 462 at para. 61. For an analysis of such decision, see Thomas M. Franck, "Some Observations on the ICJ's Procedural and Substantive Innovations" (1987) 81 A.J.I.L. 116. 226
Broadly speaking, it is possible to say that States seek the greatest control possible over disputes, and one would be tempted to envisage the ICJ as acting consistently with State interests by assuming a position similar to international arbitration tribunals, which are in essence servants of the parties before them. However, the reality is different, and it is possible to show that the first self-transformation carried out by the Court is the assertion of increasing control over inter-State disputes both in terms of facts and law. In other words, the ICJ became well aware of what the US Supreme Court long ago characterized as "the inherent power of a court of law to control its process."
As will be indicated below, the ICJ has strengthened its control over disputes in different ways: first, by offering greater opportunities to complaining States during the proceedings to adduce before the Court new sources of jurisdiction not mentioned in the application; by self-assigning the power to interpret Parties' submissions; by granting itself the power to develop it own arguments; by transforming itself into the agenda-setter of disputes, once Parties have established the claims thereof; and by recognizing the possibility of making use of public evidence not produced before the Court.
II.2.1.5.4.1.1. The International Court of Justice's Power to Assess New Claims of Jurisdiction after the Filing of Applications
When dealing with a Court that lacks compulsory jurisdiction, it seems completely rational to give complaining States a broad opportunity to provide the Court with bases for its jurisdiction to hear and adjudicate the dispute at issue. The Court has self-transformed by establishing the possibility for complaining States to invoke new bases of the Court's
568 Krippendorfv. Hyde, 110 U.S. 276, 283 (1884). 227 jurisdiction not included initially in their Application. So, if they miss one in the
Application, claimants may correct the omission later in the proceedings. This self-
transformation expands the Court's possibility of asserting jurisdiction and offers the ICJ
greater opportunities to adjudicate more controversies, the necessary input to carry out its
function of resolving inter-State controversies, among other objectives, and to effectively
contribute to the development of international law.
The Court introduced this self-transformation in its decision in Nicaragua Jurisdiction.
There, after the Application had been filed, Nicaragua invoked the Treaty of Friendship,
Commerce and Navigation between Nicaragua and the U.S. as a basis of the Court's jurisdiction,569 and the U.S. argued that it was not possible to do so.570 The Court rejected
this argument and said:
The Court considers that the fact that the 1956 Treaty was not invoked in the Application as a title of jurisdiction does not in itself constitute a bar to reliance being placed upon it in the Memorial. Since the Court must always be satisfied that it has jurisdiction before proceeding to examine the merits of a case, it is certainly desirable that 'the legal grounds upon which the jurisdiction of the Court is said to be based' should be indicated at an early stage in the proceedings ... An additional ground of jurisdiction may be however be brought to the Court's attention later, and the Court may take it into account provided the Applicant makes it clear that it intends to proceed upon that basis ... and provided also that the result is not to transform the dispute brought before the Court by the application into another dispute which is different in character....
As can be seen, although it is for claimants to demonstrate the jurisdiction of the Court,
the Court itself has asserted some control over this important aspect of disputes by
expanding the opportunity claimants have to invoke such bases of jurisdiction. The tool
See Nicaragua Jurisdiction, supra note 459 at para. 77. See ibid, at para. 78. 228 may be valuable under those circumstances in which the sources of jurisdiction first found by the claimant and included in the Application have been strongly contested by the respondent State, and it offers the Court the possibility of examining new bases and, potentially, of finding clear jurisdiction upon them.572
II.2.1.5.4.1.2. The Power of the International Court of Justice to Interpret Parties' Submissions
The second tool developed by the ICJ to control disputes is its capacity to interpret
Parties' claims and submissions. In the Nuclear Test case, the Court held:
[I]t has never been contested that the Court is entitled to interpret the submissions of the parties, and in fact is bound to do so; this is one of the attributes of its judicial function. ... (P. C.I.J.., Series A, No 7, p 35)...
In the circumstances of the present case ... the Court must ascertain the true subject of the dispute, the object and purpose of the claim ... In doing so it must take into account not only the submission, but the Application as a whole, the arguments of Applicant before the Court, and other documents referred to above. 573
The importance of the tool is that, by way of interpretation, the Court can either expand or reduce the scope of the dispute whenever it considers necessary. This tool was first deployed in the Nuclear Test Case to narrow the scope of this dispute so as to render a judgment that prevented the Court from entering into a confrontation with France at a
571 Ibid, at para. 79. 572 It is important to highlight that in Nicaragua Jurisdiction the Court asserted jurisdiction on the basis of the Treaty. (See ibid, at para. 83.) This power was of great relevance in this dispute, since the jurisdiction of the Court was doubtful on various accounts highlighted by the U.S. First, it was not sure whether Nicaragua could seize the Court with jurisdiction; and second, the reservations made by the U.S. also, on their face, appeared to prevent the Court from adjudicating this dispute. By declaring that it had jurisdiction on the basis of the Treaty of Friendship, Commerce and Navigation between Nicaragua and United States, (See ibid, at para. 83) the Court showed that, even if such jurisdiction were contested on the basis of the objections made by the latter, the dispute in any case could be resolved on the basis of the aforementioned treaty. 573 Nuclear Test Case, supra note 482 at paras. 30-31. 229
moment in which the Cold War was a painful reality, as was seen above in Part II.2.1.4.2
of this chapter.574
This is a self-transformation that shares an important feature with the way the U.S.
Supreme Court created the judicial review of federal legislation, in the sense that the self- transformation was compelled, although not imposed, by the external environment. In
effect, the self-transformation was necessary, because it made up part of the strategy the
ICJ had to develop in order to avoid going to the merits of this case.575
II.2.1.5.4.1.3. The International Court of Justice's Freedom to Develop Its Own Arguments
In inter-State dispute resolution, either the disputants set the framework of their dispute
together, as was mentioned, or each party, as claimant or respondent, chooses the claims
or defences that it would like to invoke to protect its interests. Broad policy issues may
cause a claiming State not to raise a claim that, if successful in the dispute at issue, may
turn against this State if applied to a different but important context or interest. So, claims
and defences are the strict domain of States, and international adjudicators tend to respect
this reality. The ICJ is not an exception and examples abound in which it has refused to
analyze claims that could have been raised but that the complainants had decided not to
take up.576
574 This self-transformation has not been used by the Court to expand the scope of disputes. However, it will be seen below that the AB has exceptionally deployed this instrument with this purpose. See Part IV.2.1.2.1 of Chapter IV. 575 See in this regard the analysis made in Part II.2.1.2 of this chapter. 576 For instance, in its Nicaragua Merits the Court held: [I]n view of the circumstances in which the dispute has arisen, reliance is placed by the Parties only on the right of self-defense in the case of an armed attack which has already 230
However, this control over claims does not cover arguments. In this field, while parties have also freedom to support their claims and defences on any argument they may consider relevant, the Court has established that it is not constrained to adjudicate the dispute only on the basis of the reasoning provided by disputants and that the Court can develop its own argumentation. Commenting on the ICJ's decision to create this freedom to develop its own arguments, Georges Abi-Saab says:
La Cour a ... demontre une grande independance dans l'echaffaudage de son raisonnement et le choix des bases juridiques de ses decisions, en s'appuyant sur 1'adage jura novit curia (le droit est 1'apanage du juge). Car si le juge doit se prononcer sur le petitum, ou Pobjet du differend, tel qu'il est defini dans les demandes et les conclusions des Parties, il est libre en revanche de le faire de la maniere qu'il considere la plus appropriee; par exemple sans se prononcer necesairement sur tous les points souleves par les Parties, a condition qu'il puisse arriver a dormer une reponse complete au petitum. Mais cela signifie surtout que le juge a toute liberte dans la motivation juridique de sa decision, sans etre astreint a une choix entre les theses juridiques defendues par les Parties. .. .577
The ICJ has reiterated this freedom in several decisions. For instance, in its judgment in
Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), the Court stated that:
[A]s an international judicial organ, is deemed to take judicial notice of international law, and is therefore required in a case falling under Article 53 of the Statute, as in any other case, to consider on its own initiative all rules of international law which may be relevant to the settlement of the dispute. It being the duty of the Court itself to ascertain and apply the relevant law in the
occurred, and the issue of the lawfulness of a response to the imminent threat of armed attack has not been raised. Accordingly the Court expresses no view on that issue ... Nicaragua Merits, supra note 462 at para. 194. In its judgment in Barcelona Traction, the Court held: The Court has noted from the Application, and from the reply given by Counsel... that the Belgian Government did not base its claim on an infringement of the direct rights of the shareholders. Thus it is not open to the Court to go beyond the claim as formulated by the Belgian Government and it will not pursue its examination of this point further. Barcelona Traction, supra note 465 at para. 49. 577 Georges Abi-Saab, "De L'Evolution de la Cour Internationale. Reflexions sur Quelques Tendances Recentes" (1992) 96 R.G.D.I.P. 273 at 282. 231
given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court."578
This freedom gives the Court discretion not only to develop new arguments not mentioned by the parties, but also to avoid responding to some issues raised by them, which the Court may consider necessary not to address. In its judgment in Nuclear Test, the Court recognized this aspect of its freedom of argumentation:
[T]he Court has on the other hand repeatedly exercised the power to exclude, when necessary, certain contentions or arguments which were advanced by a party as part of the submissions, but which were regarded by the Court, not as indications of what the party was asking the Court to decide, but as reasons advanced why the Court should decide in the sense contended for by that 579
party...
But this freedom of argumentation is not a tool to exert restraint only. The freedom also
allows the Court to pronounce on issues that have not been raised by the parties and that
57 Fisheries Jurisdiction Case (Federal Republic of Germany v. Iceland), [1974] I.C.J. Rep. 9 para 18, quoted in Nicaragua Merits, supra note 462 at para. 29. The origin of this freedom is the Permanent Court of International Justice that in its judgment in The Case ofS.S. "Lotus" held: [I]n the fulfilment of its task of itself ascertaining what the international law is, it has not confined itself to a consideration of the arguments put forward, but has included in its researches all precedents, teachings and facts to which it had access and which might possibly have revealed the existence of one of the principles of international law contemplated in the special agreement." The Case ofS.S. "Lotus, (1927), P.C.I.J. (Ser. A) No 10 at 31. 579 Nuclear Test Case, supra note 482 at para. 30. Likewise, in its judgment in the LaGrand the Court made use of this important aspect of its freedom of argumentation and said: [G]ermany further contended that the right of the individual to be informed without delay under Article 36, paragraph 1, of the Vienna Convention was not only an individual right but has today assumed the character of a human right. ... The Court having found that the United States violated the rights accorded by Article 36, paragraph 1, to the LaGrand brothers, it does not appear necessary to it to consider the additional argument developed by Germany in this regard. LaGrand, supra note 540 at para. 78. See also ibid, at para. 126. For the sake of clarity, Article 36.1(b) of the Vienna Convention provides that: "if he so request, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph." 232 the Court regards as worthy of clarification or analysis. The Court has often deployed this tool from this perspective through its frequent use of obiter dictums. Nagendra Sigh, former President of the ICJ, illustrated this use of dictums when responding to the question of whether the Court had in mind only the dispute at issue or the broader international picture:
We address ourselves to the differences between the disputing states. But we generalize and enunciate principles of jurisprudence which would serve as a guide to prevent future disputes and to the establishment of a regime of law. So we do enunciate general principles and make it possible for international law to develop.581
This freedom was recognized by the Court in Arrest Warrant of 11 April 2000
(Democratic Republic of the Congo v. Belgium), when it said that
[W]hile the Court is ... not entitled to decide upon questions not asked of it, the non ultra petita rule nonetheless cannot preclude the Court from addressing certain legal points in its reasoning. Thus in the present case the Court may not rule in the operative part of its Judgment, on the questions whether the disputed arrest warrant, issued by the Belgian investigating judge in exercise of his purported universal jurisdiction, complied in that regard with the rules and principles of international law governing the jurisdiction of nation al courts. This does not mean, however, that the Court may not deal with certain aspects of that question in the reasoning of its Judgment, should it deem this necessary or desirable.582
As can be seen, the freedom to develop its own argumentation gives the Court a significant capacity to provide the justification of its decisions to expand its scope, and it may also be deployed to avoid complex arguments made by parties that the Court does not regard as appropriate to address. The tool allows the Court to design any rationale for its
I do not mean that the ICJ addresses claims not made by complaining States, but only that, in the reasoning of its decisions, it broadly analyzes subject-matters not explicitly mentioned by parties. 581 Singh, supra note 456 at 452. 582 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), [2002] I.C.J. Rep. 3 para. 43. [Arrest Warrant]. 233 decisions, be they self-transformative or not, which may constitute a valuable tool to craft the extent of the decisions that better suit the external conditions the Court is facing at the time of the ruling. Finally, it is important to mention that the control that this freedom grants over this important aspect of disputes is considerable, and it represents the adoption of a transformation of the Court determined by itself.
H.2.1.5.4.1.4. The International Court of Justice Sets the Agenda of the Dispute Once the Parties Have Established Its Framework
It is widely recognized that control over the agenda plays an important role in the
coo decision-making process. Regarding disputes before the ICJ, States control the dispute in terms of claims and defences, as was mentioned above in Part II.2.1.5.4.1.3 of this chapter. However, the Court has given itself the control over the agenda of the dispute, in the sense that it is the Court that decides the order in which the dispute will be adjudicated. This capacity may seem of little significance, but in the end it constitutes a valuable instrument to control the type of decision the Court wishes to render and to avoid issues the Court does not want to deal with.
583 Describing the approach of the public choice theory of law and economics regarding agenda control, Mercuro & Medema state that [T]here is an understanding that the order in which proposals are voted upon may be important in determining which proposals pass. This is the issue of agenda control- organizing the order of the votes to ensure a favourable outcome. Thus, both the voting rule adopted and the voting agenda play an important role in determining the form that legal-economic policy actually takes. Mercuro & Medema, supra note 104 at 91. The quote refers to the importance of the agenda control in collegial decision-making, but the quote is also applicable to the agenda control over the order in which a Court will resolve the claims made by complainants. 584 Perhaps one of the most important judicial decision in which this tool of judicial control has been used is Marbury. Haskins shows it in the following terms: [I]t is particularly important to emphasize what the Supreme Court did decide in Marbury, and why it decided the case as it did. Speaking for the Court, Marshall analyzed the three question that he thought vital, through in an order different from that in which Charles Lee, counsel for petitioners, had presented them ... 234
The ICJ has not offered a precise description of this control technique, something that the
WTO Appellate Body has explicitly done, but such absence does not mean that the Court has not granted itself this capacity. So far, two of the most important judgments in which the Court has used its agenda-setting power have been its judgments in Nuclear Test Case and in the Case Concerning the Arrest Warrant of 11 April 2000.
In the Nuclear Test Case, the Court, as was mentioned, was called on to decide whether the atmospheric nuclear test carried out by France violated international law. In its judgment, the Court decided to control the agenda of the dispute by determining that, instead of assessing its jurisdiction, as would be the normal step at this stage of the proceedings, it would decide first whether there was a dispute between the parties in light of the French decision to suspend such tests in the near future. This control over the agenda allowed the Court to determine that the dispute had ended and to avoid deciding on the complex merits of the controversy.
Haskins, supra note 286 at 184. 585 When exercising its power to control the agenda of this dispute, the Court said: The scope of the present phase of the proceedings was defined by the Court's Order of 22 June 1973, by which the parties were called upon to argue, in the first instance, questions of the jurisdiction of the Court and the admissibility of the Application. ... However, while examining these questions of a preliminary character, the Court is entitled, and in some circumstances may be required, to go into other questions which may not be strictly capable of classification as matters of jurisdiction or admissibility but are of such a nature as to require examination in priority to those matters.
In this connection, it should be emphasized that the Court possesses an inherent jurisdiction enabling it to take such actions as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits, if and when established, shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the 'inherent limitations on the exercise of the judicial function', and to 'maintain its judicial character' ...
With these considerations in mind, the Court has therefore first to examine a question which it finds to be essentially preliminary, namely the existence of a dispute, for, whether 235
On the other hand, the facts in the Case Concerning the Arrest Warrant of 11 April 2000 are associated with the legality of the arrest warrant in absentia issued by a Belgian judge against Abdulaye Yerodia Ndombasi, then Minister of the Democratic Republic of Congo
(DRC), for crimes against humanity that took place in the DRC and that did not involve
Belgian citizens or interests. Belgium was trying to exert universal jurisdiction to prosecute crimes of this nature; the DRC claimed that Belgium lacked jurisdiction to issue the arrest warrant and that this warrant violated the international law principle according to which foreign ministers enjoyed criminal immunity. The Court considered it necessary not to deal with the complex issue of universal criminal jurisdiction and concentrated only on the less complex subject-matter of diplomatic immunity. According to Ruiz Fabri and
Sorel, the Court "[n]'a vraisblablement pas voulu courir le risque de faire ouvrir la boite
CO/ de Pandore que pourrait bien etre le premier." Its control over the agenda of the dispute allowed the Court to avoid dealing with the claim regarding the international lawfulness of the universal criminal jurisdiction.587
or not the Court has jurisdiction in the present case, the resolution of that question could exert a decisive influence on the continuation of the proceedings. ... [emphasis added] Nuclear Test Case, supra note 482 at paras. 22-24. 586 Helene Ruiz Fabri & Jean-Marc Sorel, "Chronique de jurisprudence de la Cour internationale de justice" (2003) 130 J.D.I. 855 at 863. 587 The Court said the following: [I]n its Application instituting these proceedings, the Congo originally challenged the legality of the arrest warrants of 11 April 2000 on two separate grounds: on the one hand, Belgium's claim to exercise a universal jurisdiction and, on the other, the alleged violation of the immunities of the Minister for Foreign Affairs of the Congo then in office. However, in its submissions in its Memorial, and in its final submissions at the close of the oral proceedings, the Congo invokes only the latter ground.
As a matter of logic, the second ground should be addressed only once there has been a determination in respect of the first, since it is only where a State has jurisdiction under international law in relation to a particular matter that there can be any question of immunities in regard to the exercise of that jurisdiction. However, in the present case, and in view of the final form of the Congo's submissions, the Court will address first the question whether, assuming that it had jurisdiction under international law to issue and 236
As can be seen, the Court has asserted more control over disputes by being able to select, after self-observation and observation of the external environment, which aspects of the whole dispute it considers convenient to adjudicate to resolve the entire dispute and which ones the Court regards as inconvenient to deal with. Being able to do so affords the Court undeniable power over disputes brought before it.
II.2.1.5.4.1.5. The International Court of Justice's Flexibility to Accept and Assess Public Evidence Not Produced before the Court
A key self-transformation of the Court is related to the flexibility it has granted to itself to assess public evidence that has not been produced by the parties within the proceedings before the Court. It is obviously not a tool to be used regularly, and in fact, it has seldom been deployed. This tool is in any case a useful instrument when the Court requires it.
The possibility of considering public evidence not produced by the parties before the
Court has been recognized in several judgments. For instance, in the Nuclear Test case, the Court evaluated France's unilateral declarations that it would suspend atmospheric nuclear tests despite the fact that the hearings before the Court had ended. This was a case so important for the Court itself that it was necessary to design a flexible institutional
circulate the arrest warrant of 11 April 2000, Belgium in so doing violated the immunities of the then Minister for Foreign Affairs of the Congo. Arrest Warrant, supra note 582 at paras. 45-46. The Court used this tool in its judgment in Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America). See Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November of 2003. at para. 35 online: International Court of Justice:
coo how they have taken place.
The Court reiterated this flexibility to judge on the basis of certain public evidence not produced before it in Nicaragua Merits, in which it boldly expressed the policy reason underlying it: the quest for the truth:
The declarations [of government officials] to which the Court considers it may refer are not limited to those made in the pleadings and the oral arguments addressed to it in the successive stages of the case, nor are they limited to statements made by the Parties. ... [T]he Court considers that, in its quest for the truth, it may also take note of statements of representatives of the Parties (or of other States) in international organizations, in so far as factually relevant, whether or not such material has been drawn to its attention by a Party.
Despite the fact that respondent States in both the Nuclear Test and the Nicaragua cases did not appear before the Court, there is nothing indicating in these passages that the flexibility to take into consideration public information that is not drawn to the attention of the Court is limited to disputes of this particular nature.
This power may be important in complex cases with impacts well beyond the parties to the disputes, in which there may be a significant amount of public information coming
588 The Court said: [T]he Applicant subsequently publicly expressed its comments ... on statements made by the French authorities since the closure of the oral proceedings. The Court is therefore in possession not only of the statements made by French authorities concerning the cessation of atmospheric nuclear testing, but also of the views of the Applicant on them. Although as a judicial body the Court is conscious of the importance of the principle expressed in the maximum audi alteram partem, it does not consider that this principle precludes the Court from taking account of statements made subsequently to the oral proceedings, and which merely supplement and reinforce matters already discussed in the course of the proceedings, statements with which the Applicant must be familiar ... Nuclear Test Case, supra note 482 at para. 34. 589 Nicaragua Merits, supra note 462 at para. 72. 238 from organs of the parties themselves, which may be important for the Court in order to hand down a judgment that better contributes to the solution or termination of the dispute at issue.590
Viewed in isolation, the above-mentioned self-transformations appear to deal with very narrow issues of potential use only in exceptional circumstances. But once put together, these self-transformations may give the ICJ significant control over disputes before it. In fact, by virtue of the self-transformations, the Court can interpret the parties' submissions to either contract or even to slightly expand the subject-matter of the dispute; it can eventually find jurisdiction on the basis of sources not identified in complainants' original applications; it can select which claims it will adjudicate by selecting the order of analysis; it can ignore important arguments made by parties and develop new ones, according to its own and exclusive will, thereby providing the rationale for its judgments that it regards convenient or appropriate in light of the circumstances of the case and of the external environment in question. Finally, the Court can even take into account public evidence that parties have been unable or unwilling to produce before the Court as relevant for the adjudication of their dispute.
Such degree of control has been achieved without generating much controversy or even being noticed. These self-transformations ensure that the Court has considerable discretion over how to carry out its functions, regardless of how often such instruments are deployed.
590 In Nicaragua Meritst, the Court provided specific criteria regarding the assessment of information of this type, such as press articles, books, and broadcast material, and explicitly stated that "[t]he Court has however to show particular caution in this area." See ibid, at para. 63. For the criteria see ibid, paras. 62-65. For a recent reiteration and application of this criteria, see Genocide, supra note 439 at paras. 212-24. 239
What really matters is the fact that they show the Court's autonomy to introduce changes to itself.
II.2.1.5.4.2. The International Court of Justice's Control over Advisory Opinions
Not only has the ICJ gained certain control over its handling of disputes, but it has also done the same as to advisory opinions, although it is important to mention that the ICJ has already a certain degree of control over the execution of its advisory role by having been granted by the Statute discretion to respond or not to the question posed by the General
Assembly.
Despite the fact that the Court has stated that it would refuse to render the opinion requested only on the basis of compelling reasons,591 thereby interpreting very narrowly such discretion, what the Court has done so far is to enhance its control over the process of advisory opinions in two ways: by self-assigning the role of reframing the question put to its consideration by the General Assembly, and by refusing to answer specific issues related to the question posed, when it regards it convenient.
The power to reframe the question was exerted by the Court in its advisory opinion in
Certain Expenses of the United Nations, where it said:
Although the Court will examine Article 17 in itself and in its relation to the rest of the Charter, it should be noted that at least three separate questions might arise in the interpretation of Paragraph 2 of this Article ... It has been asked to answer a specific question related to certain identified expenditures which have actually been made, but the Court would not adequately discharge
See Legality of Nuclear Weapons, supra note 430 at para. 14. 240
the obligation incumbent on it unless it examined in some detail various problems raised by the question which the General Assembly has asked.
On the other hand, the Court's capacity to not address all the legal issues involved in the question posed by the General Assembly was exerted to a considerable extent in the advisory opinion in Legality of Nuclear Weapons, where the Court was asked to respond to the question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"593
After having responded that it would render the advisory opinion despite the objections placed by some nuclear powers,594 the Court held that
An entirely different question is whether the Court, under the constraints placed upon it as a judicial organ, will be able to give a complete answer to the question asked of it 595
The Court made extensive use of this power and refused to deal with the legality of nuclear weapons in the conduct of reprisals,596 over the policy of deterrence according to which States develop nuclear weapons to deter aggression from other States, and whether the humanitarian law applicable to the use of nuclear weapons had the status of
598 jus cogens.
592 Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion of 20 July 1962, [1962] I.C.J. Rep. 151 at 157-58. 593 Legality of Nuclear Weapons, supra note 430 at para. 1. 594 See ibid, at para. 15. 595 Ibid, at para. 19. 596 See ibid, at para. 46. 597 See ibid, at para. 67. 598 See ibid, at para. 83. It may be important to say that this decision was also analyzed in Part II.2.1.2 of this chapter as illustrating the ICJ's self-observation. Here, the advisory opinion Legality of Nuclear Weapons is assessed from a different angle by unveiling how the ICJ, on the basis of such self-observation, decides to 241
As has been illustrated, the Court has introduced important self-transformations to its advisory role, in the sense that it retains the power to reframe the question posed by the
General Assembly, and to avoid those issues the Court may regard as inappropriate or inconvenient to address.599
II.2.1.5.4.3. Binding Effect of Provisional Measures of the International Court of Justice
Part II.2.1.5.3.4 of this chapter explained that the ICJ declared the mandatory character of its provisional measures, pursuant to Article 41 of the Statute of the Court. This part will present a full analysis of the justification the Court provided for this important self- transformation. To recall, this provision sets forth:
1. The Court shall have the power to indicate, if it considers that circumstances "so require, any provisional measures which ought to be taken to preserve the respective rights of either party. 2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties and to the Security Council.
The text of the Article does not appear to contemplate that provisional measures will be mandatory, given its use of terms such as "ought to be taken" and "suggested measures."600 However, as was already said, the ICJ interpreted the Statute in its judgment in LaGrand Case and determined that such measures were binding. introduce a self-transformation that allows it to enhance its control over how it carries out its advisory function. 599 For further analysis, see Lauterpacht, Development, supra note 439 at 206-10. It is important to say that the self-transformation exists regardless of how often it is used, because it remains available to be deployed when the circumstances so require. 600 This has been the position of the U.S., the first State against which binding provisional measures were ordered. See John Quigley, "LeGrand: A Challenge to the U.S. Judiciary" (2002) 27 Yale J. Int'l L. 435 at 438. The wording of Article 41 is in marked contrast with similar provisions instituting measures of the 242
Never before had the ICJ had to pronounce regarding the binding or non-binding character of its orders indicating provisional measures.601 To conclude that its orders were binding, the Court started with an analysis of the French version of the text of Article 41, according to which:
1. La Cour a le pouvoir d'indiquer, si elle estime que les circonstances 1'exigent, quelles mesures conservatoires du droit de chacun doivent etre prises a titre provisoire. 2. En attendant 1'arret definitif, 1'indication de ces mesures est immediatment notifiee aux parties et au Conseil de securite
From this point of departure, the Court stated:
In this text, the terms 'indiquer' and '1'indication' may be deemed to be neutral as to the mandatory character of the measure concerned; by contrast the words 'doivent etre prises' have an imperative character.602
The Court then asked the question as to what to do if the text of the two language versions had differences, being both equally authentic.603 The Court then relied on Article 33(4) of the Vienna Convention on the Law of Treaties, according to which:
[W]hen a comparison of the authentic texts discloses a difference of meaning which the application of Articles 31 and 32 does not remove the meaning which best reconciles the texts, having regard to the object and purpose of the treaty, shall be adopted.
Then the Court reasoned that the object and purpose of its Statute were to allow the Court to solve international disputes through binding decisions.604 Then the Court stated:
same character regarding the European Court of Justice and the International Tribunal for the Law of the Sea, whose provisional measures are declared to be mandatory by virtue of Article 242 of the Treaty Creating the European Communities, and of Article 290 of the Montego Convention. See Manouvel, supra note 556 at 110-111. 601 See LaGrand Case, supra note 540 at para. 98. For a historical review of the genesis of Article 41, see Manouvel, supra note 556 at 106-09. 602 LaGrand, supra note 540 at para. 100. 603 See ibid, at para. 101. 243
It follows from the object and purpose of the Statute, as well as from the terms of Article 41 when read in their context, that the power to indicate provisional measures entails that such measures should be binding, inasmuch as the power in question is based on the necessity, when the circumstances call for it, to safeguard, and to avoid a prejudice to, the rights of the parties as determined by the final judgment of the Court. The contention that provisional measures indicated under Article 41 might not be binding would be contrary to the object and purpose of that Article.6
Furthermore, the Court grounded the binding character of its provisional measures in the principle recognized by its predecessor, the Permanent Court of International Justice, according to which parties to disputes must refrain from adopting actions that might aggravate or extend the controversy in question.606
604 See ibid, at 102. 605 Ibid, at para. 102. 606 See ibid, at 103. This argument had been made before by a Registar of the Court, Edvard Hambro. Edvard Hambro, "The Binding Character of the Provisional Measures of Protection Indicated by the International Court of Justice", in Rechtsfragen der Internationalen Organisation, Festschrift fur Hans Wehberg zu seinem 70. Geburtstag, 1956, at 167. As cited by Judge Weeramantry in his separate opinion to the Court's order in Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia Montenegro)). See Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia Montenegro)), Order of 13 September 1993, [1993] I.C.J. Rep. 325 at 377. Judge Weeramantry had made a slightly different, though much more forceful, argument by saying: To take the view that a court seised of a mater has no power to act in the face of a unilateral threat to the subject-matter by one of the parties before it would appear then to result in the contradictory situation of the court on the one hand having jurisdiction to hear a case and on the other being denied the effective and necessary authority to discharge that task which has thus been validly entrusted. ... Separate Opinion of Judge Weeramantry, at 376. Likewise Judge Ajibola claimed in his separate opinion to this Order: On pourrait se demander aussi quelle utilite il y a a considerer une demande en indication de mesures conservatoires comme une question urgente, a tenir immediatement une audience rapide a son sujet et a lui accorder la priorite ... si, malgre tous les efforts qui lui son consacres, l'ordonnance que en resulte doit etre consideree comme n'etant pas juridiquement obligatoire et comme depourvue d'effets. Opinion individuelle du Juge Ajibola, Application de la Convention pour la prevention et la represion du crime de genocide, ordonnance du 13 Septembre 1993, 1993 Rec. C.I.J. 325 at 399. However, the reliance on the prior jurisprudence of the Permanent Court of International Arbitration could also lead to the opposite result. In effect, as Matringe illustrates, there is a principle aimed at preserving States' sovereignty, according to which, in the case of ambiguous provisions constraining it, interpreters should adopt that which restricts such sovereignty less. Past decisions of the ICJ and the PCIJ support such a principle, including among others, Nuclear Tests (Australia v. France), (judgment, 20 December 1974 [1974] I.C.J. Rep. 253 at 267) and Phosphates du Maroc, (exceptions preliminaries du 14 June 1938, (1938) Rec CPJL, Serie A/B, No 74, 10 at 23-24). See Jean Matringe, "L'Arret de la Cour Internationale de Justice Dans L'Affaire LaGrand (Allemagne c. Etats-Unis D'Amerique) du 27 Juin 2001" 2002 XLVIII A.F.D.I. 244
The Court then sought an additional basis in the negotiating history of Article 41 and concluded that it supported the binding character of the provisional measures despite the fact that a draft that explicitly established such effect by using the expression "the Court may ... order" was twice rejected.607 The ICJ considered that the reason for the rejection, namely, that provisional measures could not be binding because the Court lacked the means to force execution was, in the view of the Court, wrong, since binding effect and lack of means to ensure compliance were different issues.
The last step of the analysis was to deal with Article 94 of the United Nations Charter, according to which:
1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, makes recommendations or decide upon measures to be taken to give effect to the judgment.
215 at 242. For a more detailed analysis criticizing the legal argumentation of the ICJ, though not its final result, the binding character of the ICJ's provisional measures, see ibid, at 239-42. 607 See LaGrand, supra note 540 at paras. 105-06. 608 See ibid, at para. 107. The argument had previously been made by judge Weeramantry in his separate opinion in the following terms: As the lack of mechanism for enforceability sometimes clouds discussions of the binding nature of the orders of this Court, a consideration of the binding nature of provisional measures must start with the clear distinction that exists between the question of the legal obligation to comply with an order and the question of its enforcement. The fact that an order cannot be enforced does not in any manner affect its binding nature, for the binding nature of an order is inherent in itself. It imposes a positive obligation recognized by international law. Whether such an order is complied with or not, whether it can be enforced or not, what other sanctions lie behind it - all these are external questions, not affecting the internal question of inherent validity. Weeramantry, supra note 606 at 374. 245
The Court pointed out that paragraph 1 of Article 94 would support the binding character of provisional measures, while paragraph 2 would not preclude this conclusion.609 In sum, the Court said:
[I]t is clear that none of the sources of interpretation referred to in the relevant articles of the Vienna Convention on the Law of Treaties, including the preparatory work, contradict the conclusions drawn from the terms of Article 41 read in their context and in light of the object and purpose of the Statute. Thus, the Court has reached the conclusion that orders on provisional measures under Article 41 have binding effect.610
The LaGrand decision is telling proof of the malleability of international law, as described by Lauterpacht, for whom "a decision which is at first sight contra legem can be brought within the pale of the law conceived as a whole."611
According to Aceves, the binding character of the provisional measures, although well grounded, possesses some problems for the ICJ. First, the record of compliance with such orders in the past has not been satisfactory, so it remains to be seen in the future how
States will react to such measures, and non-compliance may impair the Court's credibility.613 Moreover, there has not been widespread condemnation by the international
However, Manouvel makes the important point that the distinction may have been evident for the Commission in charge of negotiating the text of Article 41, since out of its 10 members, five later became judges of the Court, and four of these were its President. See Manouvel, supra note 556 at 125. 609 See LaGrand, supra note 540 at para. 108. 610 Ibid, at para. 109. The Court did not embrace the argument adduced by some authors according to which provisional measures were binding as a matter of a general principle of law, given that in many domestic jurisdictions they have such a nature. See Pierre Pescatore, "Les mesures conservatoires et les referes" in A. Pedone ed., La jurisdiction 'Internationale permanent (Lyon: S.F.D.I., 1987) 323. 61' Lauterpacht, Function, supra note 442 at 80. 612 The case may be, as the U.S. experience in LaGrand indicated, that the poor record of compliance with provisional measures was associated with the fact that States considered them to be non-binding. 613 William J. Aceves, "LaGrand' (2002) 96 A.J.I.L. 210 at 218. The record of non-compliance with provisional orders is significant. Iran in 1951 and 1979; Iceland in 1972; Pakistan in 1973; Turkey in 1976; France in 1973 and 1995; all members of NATO in 1999; the U.S. in 1984, 1998, and 1999; and Yugoslavia in 1993. See Manouvel, supra note 556 at 127-28. 246 community when States have refused to comply with the ICJ's provisional measures,61 which means that one of the most powerful mechanisms to induce compliance with the
Court's orders is absent.
In legal terms, the binding effect of provisional measures in accordance with LaGrand has been accepted by some as "[s]ound as a matter of treaty interpretation,"615 and the policy reason is not without merit: "[I]f a court cannot, by issuing order of an injunctive character, preserve its own ability to render a final, binding judgement, then its ability to render a final, binding judgment is illusory."616 Others, such as Fitzpatrick, still hold the view after LaGrand that the text of Article 41 denies binding character to the ICJ's provisional measures.617
In sum, the Court introduced to itself an important transformation, which allows it, in legal terms, to control the dispute by issuing binding provisional measures that may avoid the rendering of mere declaratory judgments.618
614 See ibid, at 128. 615 Quigley, supra note 600 at 439. 6X6 Ibid, at 439. 617 See Joan Fitzpatrick, "The Unreality of International Law in the United States and the LaGrand Case" (2002) 27 Yale J. Int'l L. 427 at 430. 618 To certify how the ICJ influences other international tribunals, it suffices to indicate that the Court's decision to declare the binding nature of its provisional measures was rapidly followed by the European Court of Human Rights, which overturned its previous jurisprudence set forth in Cruz Varas v. Sweden {Cruz Varas v. Sweden (1991), 14 E.C. H.R. Rep. Ser, A), to declare in Mamatkulov et al. v. Turkey that its provisional measures were also binding. {Mamatkulov et al. v. Turkey (2005), Application No. 46827/99 and 46951/99) The ICSID tribunal in Victor Pey Casado and the President Allende Foundation v. Chile also decided to follow the ICJ by declaring three months after the LaGrand judgment that provisional measures under the Washington Convention possessed binding character. See in this regard, Jean Chappez, "Les mesures conservatoires devant la Cour internationale de Justice" in Charalambos Apostolidis, ed., Les arrets de la Cour internationale de Justice (Dijon: Editions Universitaires de Dijon, 2005) 45 at 60; and Helene Tigroudja, "La force obligatoire des mesures conservatoires indiquees par la Cour europeenne des droits de l'homme. Observations sous l'arret du 6 fevrier 2003 Mamatkulov v. Turquie" (2003) R.G.D.I.P. 601. 247
II.2.1.5.4.4. The International Court of Justice as a Court Able to Order States on How to Implement Its Rulings
Still in its early stage of development, but critical for a useful comparison with the WTO
Appellate Body, is the increasing assertiveness of the ICJ in instructing States regarding how to implement its decisions. The Court is going further than determining the conformity with conventional or customary international law of States' actions or
omissions to also order States regarding how to implement its decisions.61
The ICJ's traditional position in this regard was expressed in Haya de la Torre (Colombia
v. Peru). The Court's very confusing judgment left the parties ignorant of how to comply
with it. Colombia then requested the Court to interpret its decision in order to determine how to implement it. The Court refused to offer any guidance and said:
[T]he Court is unable to give any practical advice as to the various courses which might be followed with a view to terminating the asylum, since, by doing so, it would depart from its judicial function.620
However, the ICJ has begun to reconsider this longstanding position. The Court has
started to adopt a more assertive approach aimed at directing States regarding how to
comply with its judgments. In its judgment in LaGrand, the Court, over the strong
opposition of the U.S., narrowed the scope of options the U.S. had at its disposal by
This is a different issue from that of the Court making recommendations to parties on possible ways to implement its judgments. For an evaluation of this issue, see Lauterpacht, Development, supra note 439 at 217-23. 620 Haya de la Torre (Colombia v. Peru), [1951] I.C.J. Rep. 71 at 82, [Asylum], and Gabcikovo-Nagymaros Project (Hungary v. Slovakia), [1997] I.CJ. Rep. 7 at 78. para. 141. See in this regard, Ian Brownlie, "Politics and Law in International Adjudication" in Brower III & Pertkins, supra note 416, 282. 248
specifying certain type of actions and omissions that the U.S. had to ensure were carried out, but leaving in its hands the choice of the means to implement such instructions.
In LaGrand, the ICJ ordered the U.S. to ensure the review and reconsideration of the conviction and sentences of Germans whose rights pursuant to Article 36(1 )(b) of the
Vienna Convention on Consular Relations were violated. The Court held as follows:
The Court considers in this respect that if the United States, notwithstanding its commitments referred to in paragraph 124 above, should fail in its obligation of consular notification to the detriment of German nationals, an apology would not suffice in cases where the individuals concerned have been subjected to prolonged detention or convicted and sentenced to severe penalties. In the case of such a conviction and sentence it would be incumbent upon the United Sates to allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in the Convention. This obligation can be carried out in various ways. The choice of means must be left to the United States.621
Specifically, the Court ordered:
(7) Finds that should nationals of the Federal Republic of Germany nonetheless be sentenced to severe penalties, without their rights under Article 35, paragraph 1 (b), of the Convention having been respected, the United States, by means of its own choosing, shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention.622
In its decision in Arrest Warrant, the ICJ reinforced this nascent trend by ordering
Belgium to cancel the arrest warrant against a former Foreign Minister of the Democratic
Republic of Congo (DRC). It was shown above in Part II.2.1.5.4.1.4 of this chapter that in
this dispute the DRC claimed that the arrest warrant contravened the international law
principle according to which foreign ministers enjoyed criminal immunity. The Court
endorsed this claim and stated that, on the basis of customary international law,
LaGrand, supra note 540 at para. 125. 249
the functions of a Minister for Foreign Affairs are such that, throughout the duration of his or her office, he or she when abroad enjoys full immunity from criminal jurisdiction and inviolability. That immunity and that inviolability protect the individual concerned against any act of authority of another State which would hinder him or her in the performance of his or her duties.623
Consequently, the Court concluded that the arrest warrant violated international law and issued the following order to Belgium:
(3) Finds that the Kingdom of Belgium must, by means of its own choosing, cancel the arrest warrant of 11 April 2000 and so inform the authorities to whom that warrant was circulated.
As can be seen, the above-mentioned judgments appear to indicate a beginning of the shift in the ICJ's traditional position according to which it does not instruct States on how to implement its rulings.626 How much further the Court will take this shift, and how it will be followed by other international judicial bodies that face similar situations, like the
WTO AB, remains to be seen. Given the prestige the Court possesses, it would not be surprising that, as has been the case with other self-transformations, other international tribunals begin acting in similar ways by issuing specific orders that somehow direct respondent States regarding how to comply with their rulings.
H.2.1.5.4.5. Expansion of the Jurisdiction of the International Court of Justice
Without affirming that the ICJ has notably expanded its jurisdiction, an issue that will be assessed in detail below in Part III. 5 of Chapter III, it is worth mentioning the two areas in
622 Ibid, at para. 168. 623 Arrest Warrant, supra note 582 at para. 54. 624 See ibid, at para. 70. 625 Ibid, at para. 78(3). 250 which the Court has stretched it. The first is the Court's concurrent jurisdiction with that of the UN Security Council in regard to disputes involving ongoing inter-State armed conflicts of international dimensions, and the second is the judicial review of the Security
Council resolutions.
II.2.1.5.4.5.1. The International Court of Justice's Concurrent Jurisdiction with the UN Security Council Concerning Inter-State Armed Conflict
It would be expected that a judicial institution such as the ICJ, which bases its jurisdiction on consent by States and lacks effective mechanisms to enforce its rulings, would be extremely careful with regard to certain disputes that are simply too complex for a judicial body to handle. The Court, as was said and it is worth repeating, had declared in Northern
Cameroons, "There are inherent limitations on the exercise of the judicial function which the Court, as a court of justice, can never ignore "
Disputes related to ongoing armed conflicts involving multiple States would easily qualify
as those whose settlement may be sought mainly through political means in international
scenarios. The use of force is regulated by the Charter of the United Nations, and the
Security Council is vested with specific jurisdiction in this regard, sometimes even to the
total exclusion of the UN General Assembly. The recognition of such reality would easily
lead to the conclusion that disputes of this sort are ones of those in which the "limitations
of the judicial function" arise. The ICJ could, and few could blame it on legal grounds,
declare that, for the solution of these kinds of controversies, the States must resort to other
626 See also in this regard, Alexander Orakhelashvili, "The Arrest Warrant Case (Congo v. Belgium)" (2002) 96 A.J.I.L. 687 at 694. 251 means of settlement of disputes, different from adjudication. Such a conclusion would not leave the dispute unresolved, since the UN, and specifically the Security Council, would be empowered—at least formally628—with the capacity to cope with ongoing disputes involving the use of force, not to mention that other regional institutions could also play a similar political role.
Nevertheless, in one of the most controversial decisions of its history, Nicaragua
Jurisdiction, the Court determined that it had jurisdiction to adjudicate disputes involving the use of force. To recall, the conflict between Nicaragua and the U.S. stemmed from the
U.S. mining of some Nicaraguan ports and from the financial and logistical support offered to the opposition paramilitary group called the contrast29 The US alleged that the support was made on the basis of the right of collective self-defence, given the aid that
Nicaragua's government was in turn supplying to leftist guerrillas in El Salvador.63 The
ICJ dismissed the U.S.'s arguments and declared that inter-State conflicts involving the use of force can be adjudicated by the Court and that it even retained concurrent jurisdiction with the UN Security Council under such circumstances.
The U.S. argued that all of Nicaragua's claims dealt with the unlawful use of force and aggression against Nicaragua by the U.S., issues that, according to Article 24 of the
Charter and with the practice of the organs of the UN, fell within the scope of
627 Northern Cameroons, supra note 451 at 29. 628 The existence of the veto power of the permanent members of the Security Council within its decision making process usually leads to deadlocks that preclude the Council from adopting meaningful decisions in certain circumstances. 629 See Nicaragua Merits, supra note 462 at para. 15. 630 See ibid, at para. 34. 252 competences of UN political organs, and mostly of the UN Security Council, which has, pursuant to this provision, "primary responsibility for the maintenance of international peace and security."631 The Court responded
The United States is thus arguing that the matter was essentially one for the Security Council since it concerned a complaint by Nicaragua involving the use of force. However, having regard to the United States Diplomatic and Consular Staff in Tehran case, the Court is of the view that the fact that a matter is before the Security Council should not prevent it being dealt with by the Court and that both proceedings could be pursued pari pasu. In that case the Court held: ...
'Whereas Article 12 of the Charter expressly forbids the General Assembly to make any recommendation with regard to a dispute or situation while the Security Council is exercising its functions in respect of that dispute or situation, no such restriction is placed on the functioning of the Court by any provision of either the Charter or the Statute of the Court. The reasons are clear. It is for the Court, the principal organ of the United Nations, to resolve any legal questions that may be in issue between parties to the dispute; and the resolution of such legal questions by the Court may be an important, and sometimes decisive, factor in promoting the peaceful settlement of the dispute. This is indeed recognized by Article 36 of the Charter, paragraph 3, which specifically provides that:
'In making recommendations under this Article the Security Council should also take into consideration that legal disputes should as a general rule be referred by the parties to the International Court of Justice in accordance with the provisions of the Statute of the Court." (I.C.J. Reports 1980, p. 22, para 40.)632
To the U.S.'s argument that the UN Security Council had a primary responsibility to deal with ongoing armed conflicts, the Court responded that:
It is necessary to emphasize that Article 24 of the Charter of the United Nations provides that
'In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security
Nicaragua Jurisdiction, supra note 459 at para. 89. Ibid, at para. 93. 253
The Charter accordingly does not confer exclusive responsibility upon the Security Council for the purpose. .. .633
The U.S. also claimed that in acting within its competence the Security Council could not
even be constrained by the UN General Assembly, which would indicate that the Court
could not intrude into them either. The Court said that, while the restriction existed
explicitly for the General Assembly, a similar limitation was not placed upon the Court. It
declared:
[W]hile in Article 12 there is a provision for a clear demarcation of functions between the General Assembly and the Security Council, in respect of any dispute or situation, that the former should not make any recommendation with regard that dispute or situation unless the Security Council so requires, there is no similar provision anywhere in the Charter with respect to the Security Council and the Court. The Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same
The Court in Nicaragua Jurisdiction clarified, in response to a U.S. argument, that its judicial functions do not transform it into an appeal body to review prior decisions of the
Security Council.
Nor can the Court accept that the present proceedings are objectionable as being in effect an appeal to the Court from an adverse decision of the Security Council. The Court is not asked to say that the Security Council was wrong in its decision, nor that there was anything inconsistent with law in the way in which the members of the Council employed their right vote. The Court is asked to pass judgment on certain legal aspects of a situation which has also been considered by the Security Council, a procedure which is entirely consonant with its position as the principal judicial organ of the United Nations. As to the inherent right of self-defence, the fact that it is referred to in the Charter as a 'right' is indicative of a legal dimension; if in the present proceedings it becomes necessary for the Court to judge in this respect between the Parties - for the rights of no other State may be adjudicated in these proceedings - it cannot be debarred from doing
Ibid, at para. 95. 254
so by the existence of a procedure for the States concerned to report to the Security Council in this connection.
No doubt, with this decision the ICJ highlighted its character of "principal judicial organ
of the United Nations" as provided in Article 92 of the Charter of the Organization. This
decision certainly moved the Court towards playing an important role in the settlement of
international disputes, regardless of their complexity and of the parties involved, when related to current political issues.
II.2.1.5.4.5.2. Judicial Review of UN Security Council Resolutions
Although the ICJ has never declared that it has jurisdiction to assess the lawfulness of UN
political organs' decisions or resolutions, today, it is more or less understood that, as an
institutional matter, the ICJ has the power of judicial review of such resolutions. This is a
significant ongoing self-transformation introduced by the Court, since nowhere in the UN
Charter is such power explicitly provided. It is labelled as an ongoing self-transformation,
because so far the ICJ has not explicitly declared that it has such power, but on the two
occasions in which States have challenged the legality of UN Security Council
Resolutions, the Court has not declared that it lacks jurisdiction either, despite the fact that
the judicial review function was explicitly rejected during the San Francisco conference in
bii Ibid, at para. 98. 636 It is worth mentioning that the Court's finding of concurrent jurisdiction with the UN Security Council received little attention from those criticizing the Court's decision on jurisdiction. For analysis of this ruling, see Michael Reisman, who did not mention this feature of the judgment. See Michael Reisman, "Has the International Court of Justice Exceeded Its Jurisdiction?" (1986) 80 A.J.I.L. 128, and Pierre Michel Eiseman, "L'Arret de la C.I.J, du 26 Novembre 1984 (Competence et Recevabilite) dans L'Affaire des Activities Militaires et Paramilitaires au Nicaragua et Contre Celui-Ci" (1984) XXX A.F.D.I. 372 at 386- 87. Certainly, the main intention of the decision was not to intrude in the realm of the Security Council, but to adjudicate a dispute against the United States. 255
1945. On the contrary, the Court's decisions in the two cases have upheld the validity of the Security Council resolutions, thereby, for practical matters, conducting their judicial review.
Before delving into the ICJ's most important decision in this regard, it is important to place the judicial review into two broad contexts. The first is the nature of international organizations and their delegated powers. The second is the important role played by the
UN Security Council in the last two decades. Both explain why judicial review of the
Security Council resolutions exists today and shed light on the conditions under which the judicial review would acquire relevance within the WTO.
The existence of ultra vires or illegal acts in international organizations is often raised, and some organizations expressly provide for mechanisms to decide whether or not the alleged acts conform with their basic laws. For instance, the International Labour
Organization has expressly recognized this possibility for such acts in Article 7(3) of its
Constitution.640
See James Crawford, "Marbury v. Madison at the International Level" (2004) 36 Geo. Wash. Int'l L. Rev. 505 at 510. 638 There are significant differences between the ICJ extending its jurisdiction to assess the legality under international law of ongoing armed conflicts also in the hands of the UN Security Council and the ICJ's stretching of its jurisdiction to carry out judicial review of UN Security Council resolutions. In the first case, the purpose of the ICJ's examination is to determine the lawfulness under international law of the respondent's actions that engendered the armed conflict, not the legality of the UN Security Council resolutions adopted as part of the Council's intervention to deal with the given conflict. So, the ICJ's involvement concerns assessment of the legality of the conflict, and the judicial review of the Council's resolutions is not at issue. The second difference is related to the law the ICJ has to apply. In the first case, the applicable law for the ICJ is public international law, while in the second, it is mostly the Charter of the UN. 639 See Ebere Osieke, "The Legal Validity of Ultra Vires Decisions of International Organizations" (1983) 77 A.J.I.L 239 for a complete analysis of ultra vires acts in international law. 640 Article 7 provides in pertinent part. 256
A similar situation was recognized by the ICJ in the Nuclear Test (World Health
Organization) where it said that
The mere fact that a majority of States, in voting on a resolution, have complied with all the relevant rules of form cannot in itself suffice to remedy any fundamental defects, such as acting ultra vires, with which a resolution might be afficted.641
The Court's first decision involving judicial review of UN political organs' determinations was the advisory opinion in Namibia. The facts that led to this advisory opinion were the following: the UN General Assembly revoked by virtue of Resolution 2145 (XXI) the authorization given to South Africa to administer the territory of South West Africa by considering that the administration was conducted in violation of the Mandate. In order to make the terminations of the mandate operative, the General Assembly called on the
"l.The Governing Body shall consist of fifty-six persons
Twenty-eight representing governments,
Fourteen representing the employers, and
Fourteen representing the workers...
3. The Governing Body shall as occasion requires determine which are the Members of the Organization of chief industrial importance and shall make rules to ensure that all questions relating to the selection of the Members of chief industrial importance are considered by an impartial committee before being decided by the Governing Body. Any appeal made by a Member from the declaration of the Governing Body as to which are the Members of chief industrial importance shall be decided by the Conference, but an appeal to the Conference shall not suspend the application of the declaration until such time as the Conference decides the appeal." (available at http://www.ilo.org/ilolex/english/constq.htm). 641 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, [1996] I.C.J. Rep. 66 at 82. See generally for the proposition that there should not be judicial review of Security Council's resolutions Jean-Pierre Cot, "The Balance of Law and Politics" in Brower III & Pertkins, supra note 416, 286. 642 See Namibia, supra note 423 at para. 92. Specifically, according to the UN General Assembly, South Africa had failed to "ensure the moral and well-being and security of the indigenous inhabitants of South West Africa ..." Ibid, at para. 93. 257
Security Council to ensure the withdrawal of South Africa.643 On this basis, the Security
Council enacted several resolutions. South Africa refused to comply with the General
Assembly resolution and challenged its resolution and those of the Security Council.
Regarding the lawfulness of the UN General Assembly's resolution, South Africa claimed that the Mandate had lapsed at the time of the dissolution of the League of Nations and that, therefore, "there was no longer any obligation to report and account under the
Mandate."645 In consequence, according to South Africa, supported by France, the UN
General Assembly had acted ultra vires when adopting Resolution 2145 646
The Court started by denying judicial review functions for itself, but in a rather contradictory way it said that an assessment of the legality of the Resolution was part of its judicial function in order to determine the consequences. The Court said:
Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned. The question of the validity or conformity with the Charter of General Assembly resolution 2145(XXI) or of related Security Council resolutions does not form the subject of the request for advisory opinion. However, in the exercise of its judicial function and since objections have been advanced the Court, in the course of its reasoning, will consider these objections before determining any legal consequences arising from those resolutions.647
However, instead of refusing to address the legality of the Resolution without further explanation, an option that had been raised before the Court, as it stated, the ICJ started
643 See ibid, at para. 106. m See ibid, at paras. 107-08. 645 Ibid, at para. 80. See also ibid, at para. 84. 646 See ibid, at para. 87. 647 Ibid, at para. 89. 648 The Court held in this regard: 258 by determining that by virtue of the Charter the General Assembly had supervisory functions with regard to the Territory649 and that South Africa had so recognized.6 Then the Court proceed to examine whether the UN General Assembly had lawfully terminated the Mandate by satisfying any of the conditions set forth in the Vienna Convention on the
Law of Treaties,651 which were applicable to the Mandate.6 2 The Court endorsed the legality of the General Assembly's termination 653
However, South Africa also impugned any Security Council resolution imposing sanctions, particularly Resolution 276 (1970) declaring that South Africa's presence in
South West-Africa was illegal and calling upon States having economic interests in
Namibia to "refrain from any dealings with the Government of South Africa ..."654
According to South Africa, the resolution was illegal, because it had been approved without the "concurring votes of the permanent members" as ordered by Article 27(3) of the Charter, since the U.S. had abstained. The ICJ carried out a procedural judicial review
of the adoption process on the basis of the Council's practice and held:
[T]he proceedings of the Security Council extending over a long period supply abundant evidence that presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and
[I]t was suggested that though the request was not directed to the question of the validity of the General Assembly resolution and of the related Security Council resolutions, this did not preclude the Court from making such enquiry. On the other hand it was contended that that the Court was not authorized by the terms of the request [of the Advisory Opinion], in the light of the discussions preceding it, to go to the validity of these resolutions. It was argued that the Court should not assume powers of judicial review of the action taken by the other principal organs of the United Nations without specific request to that effect, nor act as a court of appeal from their decisions. Ibid, at para. 87. 649 See ibid, at para. 72. 650 See ibid, at para. 74-76. 651 See ibid, at para. 94.. 652 See ibid, at para. 100. 653 See ibid, at para. 104. 654 Ibid, at para. 108. 259
uniformly interpreted the practice of voluntary abstention by a permanent members as not constituting a bar to the adoption of resolutions. By abstaining, a member does not signify its objection to the approval of what is being proposed; in order to prevent the adoption of a resolution requiring unanimity of the permanent members, a permanent member has only to cast a negative vote. This procedure followed by the Security Council ... has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.655
Then the Court proceeded to assess the lawfulness of Security Council resolutions. The
Court declared that the Council had acted upon the exercise of its responsibility for the
maintenance of peace and security656 and that it was vested with general powers to carry
out such function. The Court concluded, regarding its judicial review:
South Africa, being responsible for having created and maintained a situation which the Court has found to have been validly declared illegal, has the obligation to put an end to it. ,.658
The use of the adverb validly clearly illustrated well the judicial review of the General
Assembly and Security Council resolutions carried out by the ICJ in Namibia.
The judicial review was tacitly reiterated by the ICJ order regarding the request of
provisional measures in Questions of Interpretation and Application of the 1971 Montreal
Convention Arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v.
655 Ibid, at para. 22. 656 See ibid, at para. 109. 657 See ibid, at para. 110. 658 Ibid, at para. 118. Having declared this, the Court went on to determine the consequences of the illegal occupation of the territory, such as ordering States to abstain from entering into treaty relations with South Africa with regard to issues related to Namibia (See ibid, at para. 122); compelling States to refuse to apply any bilateral treaty calling for inter-governmental cooperation (See ibid.); calling on States to abstain from sending diplomatic missions to South Africa, including the Namibian territory (See ibid, at para. 123); and telling States to not enter into economic dealings with South Africa when it was acting on behalf of Namibia (See ibid, at para. 124). 260
U.K).659 The facts of this dispute are associated with the destruction of a Pan Am airplane over die Scottish town of Lockerbie that took place in 1988. A Grand Jury of the United
States District Court for the District of Columbia charged two Libyans with such destruction.66 Libya argued that such offence fell within the scope of the Montreal
Convention, to which both Libya and the U.S. were parties.661 The accused individuals were in Libya, which argued that it had taken the steps to prosecute them, thereby complying with Article 5 of the Convention. The U.S. requested the extradition of the individuals, but Libya claimed that the Convention subjected extraditions to be in accordance widi the legislation of the requested State, and Libyan laws prohibited the extradition of Libyan nationals. Given this refusal, the U.S. took the issue before the
UN Security Council, which adopted resolution 731(1992) expressing concerns for
Libya's decision and for its apparent participation in the destruction and urging this State to "provide a full and effective response to those requests so as to contribute to the elimination of international terrorism."663 During the proceedings, it was stated that
Libya's lack of response would lead to economic sanctions imposed by the Council.664
Later, the Security Council enacted resolution 748(1992) on the basis of Chapter VII of the UN Charter, ordering Libya to comply with Resolution 731(1992).665
Libya then claimed before the Court, when requesting the indication of provisional measures, that the latter resolution was contrary to international law, because "[t]he
659 Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.K), [1998] I.C.J Rep. 115 [Lockerbie]. 660 See ibid, at para. 2. 661 See ibid, at para. 3 662 See ibid, at para. 5. 663 Ibid, at para. 31. 664 See ibid, at para. 32. 261
Council has employed its power to characterize the situation for purposes of Chapter VII
simply as a pretext to avoid applying the Montreal Convention."666
Franck portrays nicely the set of options at the disposal of the Court to rule on Libya's claim:
The Libyan Application essentially left the Court with three jurisprudential choices. It could have held that the sanctions ordered by Resolution 748 should be suspended until such time as the Court ascertained, at the merits stage, that Libya's claim was groundless. Or it could have decided that, since no sufficient case of mala fides or ultra vires had been established by Libya at this preliminary stage, there were no grounds upon which the Court could order such interim relief. Or, third, the Court could have held that no relief would be forthcoming at any stage of the proceedings if granting that relief would require the Court to make a finding that a chapter VII decision of the Security Council exceeded its lawful authority. It will be evident that the first two of these three options assume an implicit right of judicial review, albeit leading to opposite results, while the third assumes judicial restraint or abdication.
What did the Court's majority choose to do? It appears to have elected, if rather softly, the second option .. ,66
In effect, the Court started by declaring that at this stage of the proceedings—request for
indication of provisional measures—it would not make any findings "[e]ither of fact or of
law on the issues relating to the merits, and the right of the parties to contest such issues at
the stage of the merits remain unaffected by the Court's decision." However, two
statements are worth highlighting regarding effective judicial review carried out by the
Court. First, it assumed the prima facie validity of the resolution 748(1992) by stating:
Whereas both Libya and the United States, as Members of the United Nations, are obliged to accept and carry out the decisions of the Security Council in
665 See ibid, at para. 34. 666 Ibid, at para. 39. 667 Thomas M. Franck, "The 'Powers of Appreciation': Who Is the Ultimate Guardian of UN Legality?" (1992) 86 A.J.I.L. 519 at 521. [Franck, "Guardian"]. 668 Lockerbie, supra note 659 at para. 41. 262
accordance with Article 25 of the Charter; whereas the Court, which at this stage of the proceedings on provisional measures, considers that prima facie this obligation extends to the decision contained in resolution 748 (1992).. ,669
The Court went on to reiterate the prima facie lawfulness of Security Council resolution
748 in the following terms:
Whereas, furthermore, an indication of the measures requested by Libya would be likely to impair the rights which appear prima facie to be enjoyed by the United States by virtue of Security Council resolution 748 (1992).
On this basis, the Court refused to indicate provisional measures as requested by Libya.
But important to the step forward contained in Lockerbie with regard to judicial review of
Security Council resolution is not only the fact that, for practical purposes, the ICJ supported the prima facie lawfulness of resolution 748, but also the absence of the statement contained in Namibia in the sense that the Court lacked the power to assess the legality of the said resolutions.
Commenting on the ICJ's judicial strategy, Franck, when making a comparison with
Marbury, pointed out that
[A]s in Marbury, the Court superficially appears to accede to the broad discretionary power of the system's political 'branch'. But, as in Marbury, it acceded not by refusing to decide, but by exercising its power of decision. The Security Council's action in imposing sanctions is adjudged intra vires .. .672
669 Ibid, at para. 42. 670 Ibid, at para. 44. 671 See ibid, at para. 46. 672 Franck, "Guardian", supra note 667 at 521. The Court will not decide this issue, since the Lockerbie dispute was removed form the List of the Court by mutual agreement of the parties. See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.K). Order of 10 September 2003. online: International Court of Justice
The third decision of the ICJ in which it has carried out judicial review of UN political organs was the advisory opinion in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. During the proceedings before the Court, Israel unsuccessfully claimed that the United Nations' General Assembly Resolution ES-10/14, by which the Assembly requested of the ICJ its advisory opinion, was ultra vires on the grounds that the active involvement of the Security Council in the situation of the Middle
East, pursuant to the UN Charter, precluded the Court from rendering the opinion. One of the grounds was Article 12, paragraph 2 of the Charter, which sets forth:
While the Security Council is exercising in respect of any dispute or situation the functions assigned to it by the present Charter, the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.
The Court dismissed this claim, since it considered that a request for an advisory opinion did not constitute a recommendation.674 The Court then dealt with the claim that the request for an advisory opinion was contrary to Article 24 of the Charter, which provided that the Security Council has "primary responsibility for the maintenance of international peace and security." The Court concluded that this provision "[rjefers to a primary, but not exclusive, competence. The General Assembly does have the power, inter alia, under
Article 14 of the Charter, to "recommend measures for the peaceful adjustment of various situations ..."675
See Wall Opinion, supra note 498 at para. 24. 674 See ibid. 675 Ibid, at para. 26. The Court also found that the practice of both the General Assembly and the Security Council developed in a way that allows both to be involved in issues related to the preservation of peace and 264
The Court concluded its analysis with the following statement supporting the lawfulness—the conclusion of the judicial review—of the request:
The Court is accordingly of the view that the General Assembly, in adopting resolution ES-10/14, seeking an advisory opinion from the Court, did not contravene the provisions of Article 12, paragraph 1, of the Charter. The Court concludes that by submitting that request the General Assembly did not exceed its competence.6 6
Nonetheless, the existence of the judicial review function does not mean that the ICJ will exercise it in the sense of easily declaring unlawful a Security Council or General
Assembly resolution. It is important to highlight that, just as the U.S. Supreme Court has developed the doctrine of presumption of constitutionality of legislation, the ICJ has adopted a similar one regarding UN political organs' resolutions. In Namibia, the Court held that "[a] resolution of a properly constituted organ of the United Nations which is passed in accordance with that organ's rules of procedure, and is declared by its President to have been so passed, must be presumed to have been validly adopted."677
In sum, the ICJ has carried out full procedural and substantive judicial review of UN
General Assembly and Security Council Resolutions without explicitly providing the grounds of such self-imposed function. Given that such judicial review, as was mentioned,
security but from different perspectives. While the Council deals with the security and peace of the situation, the General Assembly does it with regard to the humanitarian view. See ibid, at para. 27. 676 Ibid, at para. 28. 677 Namibia, supra note 423 at para. 20. In this regard, Crawford says: [T]he existence of a power of legal appreciation—amounting in certain cases to judicial review—is one thing and its exercise another. It is clear that international courts—the ICJ in particular—will show extreme deference to decisions of the Security Council. The scope of the powers of the Security Council is so wide that there is very limited room for review. The question of whether there is a threat to international peace and security and what action should be taken as a consequence is essentially non-justiciable. However, there are some things that the Security Council cannot do within the scope of its authority.
Crawford, supra note 637 at 513. 265 was rejected during the San Francisco Convention, it is clear that the Court has extended the ambit of its jurisdiction by adopting this self-transformation beyond what was contemplated at the time it was created.
However, there are two reasons that justify such judicial review as a matter of policy.
First, as Crawford says, international organizations possess delegated, not original, powers, so their organs, the UN Security Council among them, may have some limits vis-
ZT-7Q a-vis sovereign States. And second, as Reisman highlights, the Security Council, in particular, has overcome the minimal role it played during the Cold War, and during the last decades, it has reached a significant importance in international politics,67 which explains why judicial review may be a predictable consequence of such pre-eminence.
II.2.1.5.4.6. A Self-Transformation That Did Not Take Place: The Self-imposed Jurisdiction to Deal with Violations of Jus Cogens
Despite the fact that the ICJ has expanded its jurisdiction, such expansion has had its self- imposed limits. The most important one is contained in Armed Activities. This dispute
678 See ibid, at 507. 679 W. Michael Reisman, "The Constitutional Crisis in the United Nations" (1993) 87 A.J.I.L. 83 at 84, 95. [Reisman, "Crisis"]. Reisman describes well in political terms the need of some checks and balances over the Security Council: [I]t concerned the relation, in the post-Cold War period, between the five permanent members of the Council ... and the rest of the United Nations membership. Specifically, will the United Nations reemerge now as conceived in 1945, as essentially an oligarchy of the victors of the Second World War who, when they agree, can decide on and enforce their vision of world order? Or will there be some system of controls, some restraints or checks and balances of the sort that are deemed crucial in modern constitutional theory ...? [A] constitution is a continuing process, not a single event. The next decade will surely witness an international constitutional struggle on many fronts, as the governments of the majority of small states seek some checks and balances on unrestrained Security Council actions, just as they sought to impose them, without significant success, in San Francisco in the spring of 1945 . 266 involved Congo and Rwanda and concerned a massive human tragedy, in which, according to a member of the Court, three-and-a-half million people are alleged to have been massacred. Congo invoked nine sources to convince the Court that it had
/roi jurisdiction to deal with such a dispute. One was that the fact that the international rule regarded to be contravened by Rwanda, the Genocide Convention, which in Congo's view was part of they'w.s cogens, in itself conferred jurisdiction on the ICJ to determine whether the alleged violation had taken place.
As to its jurisdiction, the Court has always stated and generally decided according to the criterion that "[T]he attitude of the respondent State must, however, be capable of being regarded as 'an unequivocal indication' of the desire of that State to accept the Court's
/TOO jurisdiction in a 'voluntary and indisputable' manner." Upon such criterion, the Court refused to self-transform by expanding its jurisdiction and adjudicating this dispute on the ground that it was claimed that jus cogens was violated. The Court said: The Court observes ... that 'the erga omnes character of a norm and the rule of consent to jurisdiction are two different things'... and that the mere fact that rights and obligations erga omnes may be at issue in a dispute would not give the Court jurisdiction to entertain that dispute.
The same applies to the relationship between peremptory norms of general international law (jus cogens) and the establishment of the Court's jurisdiction: the fact that a dispute relates to compliance with a norm having such a character, which is assuredly the case with regard to the prohibition of genocide, cannot of itself provide a basis for the jurisdiction of the Court to entertain that dispute. Under the Court's Statute that jurisdiction is always based on the consent of the parties.683
Reisman, "Crisis", supra note 679 at 95-96. 680 See Dissenting Opinion of Judge Koroma in Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002 at para 19. [Kodoma, Congo]. 681 See Armed Activities, supra note 439 at para. 15. 6i2Ibid. at para. 21. 683 Ibid, at para 64. This conclusion was unanimous among the permanent members of the Court. The only dissenting member, Judge Koroma, endorse it too. See Kodoma, Congo, supra note 680 at para. 22. 267
Analysis of the Court's decision in this regard from the perspective of the opportunities to
widely expand the Court's jurisdiction went unnoticed for those who commented on this judgment. Certainly, to transform itself into the guardian of jus cogens is not possible
for the Court, since it would simply not be able to perform its tasks. The sensitivity of
cases of this nature, the parties that could be brought before the Court for allegations of
violations of international norms of this character, and the fact-finding capacities required
to perform the assessment of such violations are all factors that must be taken into
consideration and that have such a dimension that they simply evince what the Court
noted in Northern Cameroons: the clear existence of inherent limitations of the judicial
function. The Court was offered the opportunity to self-transform and to stretch its jurisdiction. However, it exerted its self-transformative autonomy by refusing to introduce
the institutional change in question.
II.2.1.5.4.7. Preliminary Conclusion Regarding the International Court of Justice's Self-Transformations
Viewed from a broad perspective, the ICJ has carried out important self-transformations.
First, the Court has asserted considerable control over disputes in terms of defining its
jurisdiction, resorting to public information, interpreting submissions, taking freedom to
adopt argumentation not raised by parties, and setting the agenda of the dispute, which in
684 For instance, Latty limits himself to highlighting the fact that it is in this decision that the ICJ explicitly recognized the existence of jus cogens for the first time, although without determining its content and its difference with erga omnes rules of international law. See Franck Latty, "La Cour Internationale de Justice face aux Tiraillements du Droit International: Les Arrets dans Le Affaires des Activites Armies sur le Territoire du Congo (RDC C. OUGANDA, 19 Decembre 2005; RDC c. RWANDA, 3 Fevrier 2006) (2005) LI A.F.D.I. 205 at 234-35. 685 For an explanation of this decision on the basis of the role the external environment could have played in constraining the Court's autonomy to self-transform, see Part II.2.1.5.5.1 below. 268 sum have meant that the Court has ensured for itself a certain degree of discretion to determine what and what not to adjudicate and which arguments it will use and which ones it will discard, according to the external circumstances of the case at hand.
In addition to its increasing management of disputes, the ICJ has done the same regarding advisory opinions, by virtue of the capacity it has attributed to itself to reframe the legal questions put it under its consideration by the UN General Assembly, and once again, by determining what aspects of the question the Court will deal with and which ones it will not, in light of the external environment.
Likewise, the binding character of provisional measures and the emerging tendency towards ordering States regarding how to comply with its rulings are also significant self- transformations for a Court that is supposed to have such significant jurisdictional weaknesses, since States may perceive such assertiveness as meaning that the Court may be willing to go its own way regardless of the external environment. Such perception could lead States to not take disputes before the Court and risk totally unpredictable judgments.686 A court with such a limitation could well determine that the best way to solve disputes is to leave the initiative to disputant States. However, the ICJ has been courageous by adopting these two self-transformations that definitely fit well the stature of
Such a situation would reinforce the belief expressed by the former judge of the ICJ, Guy de Lacharriere, that [PJoliticians are very often reluctant to recognize the jurisdiction of courts. They think that, as a rule, at the international level disputes can be solved easier by compromise and diplomacy than by a judge .... Guy de Lacharriere, "Interview", in Sturgess & Chubb, supra note 366, 454 at 455. 269 being the highest international court of the world, although they seem strange for a court that lacks compulsory jurisdiction.
Finally, the Court has expanded the scope of its jurisdiction. The Court's lack of fear regarding concurrent jurisdiction_with the UN Security Council and of adjudicating disputes related to ongoing conflicts is also worth mentioning. The Court dealt with many arguments in favour of passing on disputes in which the Security Council was already involved, since the latter's intervention is another way of resolving disputes, but the Court refused to take the easy path and instead took the most challenging: to assert jurisdiction.
As to the self-creation of the judicial review of UN political organs' resolutions, the Court has carried it out in full without providing the rationale of this new function, while at the same time granting such organs significant discretion in the use of their competences.
This analysis also illustrates well the intimate relationship between the ICJ's exercise of its autonomy to self-transform and the discretion the Court has to shape its identity. This is so, because each self-transformation is unavoidably linked to how the Court determines the best way to perform its functions.
But this analysis can be refined further by describing the dynamic character of the ICJ's autonomy to self-transform. In effect, there are completed self-transformations, such as the binding nature of the Court's provisional measures, and there are ongoing self- transformations. And among the latter, there are some that are far along their way, such as the increasing control over disputes and advisory opinions, while there are others that are 270 just in the first stages of their development, such as the Court's assertiveness in ordering
on how to implement its rulings, and the judicial review of UN political organs'
resolutions, for which a full justification has not yet been provided.
But the exercise of the self-transformative autonomy comprises not only the introduction
of self-transformations, but also the option to not self-transform, and the ICJ has also
exerted the latter, in particular when it refused to expand its jurisdiction to assert it on the
sole basis that the dispute involved potential violations of jus cogens and no other source
of the Court's jurisdiction was available.
Finally, it is also important to keep in mind that not all self-transformations are wholly the
exclusive result of the Court's voluntary decisions, because while the external
environment has not been able to impose transformations on the Court, it has compelled it
to do so on a number of occasions. In particular, the Nuclear Test dispute forced the Court
to self-transform in a number of ways in order to justify its final decision in this case: not
to rule on its merits.
Having illustrated in detail why, as a general matter, the ICJ possesses autonomy to self-
transform, and how it has exerted it, this thesis proceeds to discuss the main limitations
that the self-transformative autonomy has.
Among the self-transformations introduced by the Court in this case were the power to interpret parties' claims and submissions, the capacity to control the agenda of disputes once parties had set their framework, and the self-created flexibility to accept and assess public evidence not produced before the Court. 271
II.2.1.5.5. Restrictions on the International Court of Justice's Self-Transformative Autonomy
It was posited in Part 1.2.6.2 of Chapter I that some courts have self-transformative autonomy. This does not mean that such autonomy is unlimited. On the contrary, courts face both external and internal constraints in the exercise of this autonomy. This chapter illustrated in Part II. 1.1.5.4 above that such restrictions apply to the U.S. Supreme Court, and the same can be said as to the ICJ, although with certain and important differences.
II.2.1.5.5.1. The External Environment as a Constraint on the International Court of Justice's Autonomy to Self-Transform
Although the ICJ and the U.S. Supreme Court have their external environment as a restriction to their autonomy to self-transform, it is important to highlight that the nature of this restriction differs from one court to the other.
One of the reasons courts observe their external environment is that external actors can adopt measures aimed either at reversing courts' rulings, through the enactment of legislation; or by punishing members of the court for their decisions, by removing them; or altering the structure of courts. None of these situations is relevant regarding the ICJ. In effect, it is highly unlikely that any respondent State could gather enough support to adopt new treaty law reversing a Court ruling in a way that indicates a punishment to the
Court. It is also highly unlikely that respondents may be able to change the structure or
A punishment of the Court would take place only if its decision were reversed by treaty law shortly after having been rendered. However, treaty rule-making does not possess such speed, and any subsequent reversal might well be perceived as a difference between States and the ICJ with regard to the issue in 272 functioning of the Court in response to a particular decision, given the strict majorities required for such change689 and the unlikely political support such an enterprise may
690 receive.
Defeated states cannot seek the removal of judges of the ICJ either, since such a decision does not rest even with the UN General Assembly or the UN Security Council, the appointing bodies, but on the judges of the Court themselves, by virtue of Article 18 of the
Statute of the Court.691
However, the fact that the ICJ is not subject to the pressures that some domestic courts, among them the U.S. Supreme Court, face does not mean that the external environment of the Court plays no restricting role at all with regard to the Court's self-transformative autonomy. It has been shown that even Presidents of the Court have said that the Court
question, but not as a punishment from the former to the latter, unless, obviously, such intention is made clear. 689 Amendments to the Statute of the ICJ have, pursuant to its Article 69, the same procedural requirements as do amendments to the UN Charter, provided for in Article 108 and 109 of the Charter. 690 In effect, to weaken the ICJ may not be in the best interest of UN Members. The strong institution that one day ruled against a State may be the same that may side with the State in a subsequent dispute. 69' Article 18 of the Statute establishes: 1. No member of the Court can be dismissed unless, in the unanimous opinion of the other members, he has cessed to fulfil the required conditions. 2. Formal notification thereof shall be made to the Secretary-General by the Registrar. 3. This notification makes the place vacant. The limited capacity that defeated States have to directly attack the ICJ is well illustrated by Thailand's anger after the Court's judgment in the Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand) ([1962] I.C.J. Rep. 6) in which the Court ruled that the dispute regarding sovereignty over the territory where the temple was located was decided in favour of Cambodia. Thailand stopped trade with Poland, given the Polish nationality of the then President of the Court, Judge Winiarski, and withdrew its ambassador to France, because two French professors had been part of Cambodia's legal team. (For a full description of these events, see Shulte, supra note 458 at 135.) The U.S.'s attacks on the Court in the UN Security Council regarding the Court's decisions in the Nicaragua case were also strong and consisted of blaming the Court for having decided the case without any meaningful basis. (See ibid, at 201, n. 764.) The futility of these reactions illustrates well how the Court is more or less immune from attacks of this sort, which, on the contrary, may worry some domestic highest courts. Moreover, according to Shulte, the view is 273 does observe its external environment, and it does so because States, nonetheless, possess tools to admonish the Court for rulings they strongly oppose.
The first important tool States have at their disposal to punish the Court is to withdraw its jurisdiction on the basis of the optional clause of Article 36(2) of the Statute, or not to renew it once it expires. Such withdrawal means that important inter-State disputes will not be adjudicated by the Court to the detriment of the enhancing of its reputation as an effective arena for the pacific settlement of controversies.693 However, it is worth highlighting that the denunciation of the Article 36(2) optional clause does not mean that the withdrawing State will no longer be a party to a dispute before the ICJ. Such withdrawal has two limitations. First, if the Court has asserted jurisdiction in the case, the denunciation does not prevent the Court from adjudicating the dispute.694 Second, despite any declaration terminating previous acceptance of the Court's jurisdiction on the basis of the optional clause, it is still possible that the given State will appear before the Court in
that the Court emerged from its Nicaragua Merits strengthened in the eyes of developing countries, who saw how the Court resisted the opposition of such a powerful actor. See ibid, at 211. 692 This is what the U.S. did after the ICJ's decision to assert jurisdiction in the Nicaragua case. The general overview of the number of States accepting the jurisdiction of the Court under the optional clause presented by Posner illustrates that they have dropped from two-thirds to one-third. The fraction of permanent members of the UN Security Council subject to this clause has been reduced from four-fifths to one-fifth. See Posner, supra note 421 at 132. 693 As Bethlehem says, "[T]o maintain rich its docket and possibly improve upon it... it is important for the Court... to establish trust amongst its constituency ..." Bethlehem, supra note 478, at 403. 694 The ICJ this said in the Nottebohm case, and ratified it in Nicaragua: When an application is filed at a time when the law in force between the parties entails the compulsory jurisdiction of the Court ... the filing of the Application is merely the condition required to enable the clause of compulsory jurisdiction to produce its effects in respect of the claim advanced in the Application. Once this condition has been satisfied, the Court must deal with the claim; it has jurisdiction to deal with all its aspects, whether they relate to jurisdiction, to admissibility or to the merits. An extrinsic fact as the subsequent lapse of the declaration... by reason of the expiry of the period or by denunciation, cannot deprive the Court of the jurisdiction already established. Nottebohm, supra note 496 at 123, also quoted in Nicaragua Merits, supra note 462 at para. 36. 274 the future due to the existence of other disputes pursuant to treaties establishing the jurisdiction of the Court with regard to conflicts arising therefrom.695
The second tool at the disposal of States to try to punish the Court is their non-appearance in disputes in which it has jurisdiction, as was the case, for instance, of Iceland in the
Fisheries jurisdiction case, of Iran in the Hostage case, of the United States in Nicaragua, or of the France in the Nuclear Test case. However, despite the fact that such absence makes it harder for the Court to adjudicate the dispute, it still does not prevent it from deciding the case in ways that ensure a reasonable administration of justice, which makes it possible for the Court to preserve its reputation as an impartial and independent institution. In effect, Article 53 of the Statute of the Court establishes:
1. Whenever one of the parties does not appear before the Court, or fails to its case, the other party may call upon the Court to decide in favour of its claim. 2. The Court must, before doing so, satisfy itself, not only that it has jurisdiction, but also that the claim is well founded in fact and law.
The third tool to punish the ICJ is to not take cases before it. For instance, after the
Court's decision to assert jurisdiction in the Nuclear Test case, France has been resistant to having its disputes with other States, such as England,696 Canada,697 and even New
Zealand,698 adjudicated by the Court, ultimately preferring arbitration to resolve them.699
695 This has been the case, for instance, of the U.S., who, after withdrawing from the Court's jurisdiction in the optional clause in 1985, appeared as a respondent before the Court in the 1990s in disputes involving alleged violations of the Vienna Convention on Consular Relations, which disputes led to important rulings such as LaGrand and Avena. Shortly after Nicaragua, the U.S. acted as complainant against Italy in the Case Concerning Elettronica Sicula S.P.A. (ELSI) (United States of America v. Italy). ([1989] I.C.J. Rep. 15). 696 Anglo-Continental shelf dispute referred to arbitration in 1977. 697 The disputes over La Bretagne and St. Pierre et Miquelon went to arbitration in 1986 and 1992, respectively. 698 The controversy over the Rainbow Warrior was taken to arbitration in 1990. 275
The fourth tool, perhaps the strongest one, at the disposal of States to affect the Court is
non-compliance with its rulings, which may erode the Court's reputation.700 It was seen in
Part II.2.1.2 of this chapter that sometimes the ICJ does care about compliance with its
rulings and crafts its decisions in ways that make such compliance easier. However, the
practice of the Court has also shown that lack of compliance does not mean that the judgment at issue has produced no effect, which may dilute the power of this tool to
punish the Court. In effect, the ICJ's indication of provisional measures in the Nicaragua
case, ordering the U.S. to cease and restrain from laying mines or adopting actions to
block access to Nicaraguan ports, was not complied with by the U.S. at the beginning, but
the Order affected the U.S.'s internal political process in the sense that the economic
701
support for the contras started being seriously questioned; and second, the declaration
of customary international law made by the Court in Nicaragua Merits produced effects, 709 regardless of any compliance by the U.S.
The importance that the international community attaches to a judgment may be
significant in spite of how the respondent State complies. In other words, while
See Sir Ian Sinclair, "The Court as an Institution: Its Role and Position in International Society" in D.W. Bowett et. al., eds., The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997) 21 at 24. Regarding this adverse effect and from a general perspective, Stephen Schwebel says: [The ICJ] is not a court which has the place in international life that some courts have in national life. It is fundamentally dependent on the willingness of states to bring cases and it is certainly possible that some developments could impact negatively on that willingness
Schwebel, "Interview", supra note 528 at 472. 700 See Richard H. Steinberg, "Alternative Perspectives on the Independence of International Courts. A Map of the Issues" in Heifer & Lindsay, supra note 2, 129 at 129. 701 See Reichler, supra note 478 at 34. 276 compliance with international adverse rulings is always an issue of foreign or domestic policy,703 the same policy reasons underlying lack of compliance in one State may not be present regarding another in a similar position, which may in turn be affected by the judgment and adjust its behaviour accordingly, if its own domestic political pressures so require. Thus, the value of the Court's judgments does not totally disappear because of lack of compliance with them.704 In sum, States' non-compliance is a powerful weapon to admonish the ICJ, but depending on the case, such weapon may be diluted.
Having identified the ways in which the external environment constrains the ICJ in the exercise of its autonomy to self-transform, it is important to illustrate the likely role some of these constraints played in the Court's decision in Armed Activities, in which it declared that it did not have jurisdiction to assess per se violations of jus cogens.706
A different determination was simply impossible for an institution, like the ICJ, based on
States' consent. Virtually every single State could be brought at one time or another before the Court on the basis of allegedly violating international norms of this nature, and for this reason, virtually all would have strongly opposed such a decision. Lack of compliance with any judgment rendered by the Court would have been expected. It could
702 According to Judge Oda, the ICJ's rulings in Diplomatic and Consular Staff (supra note 472) and Nicaragua Merits (supra note 462) "were not complied with as such, although in both cases the Court's judgment did have a long-term effect." Oda, "Myth", supra note 436 at 260. 03 See in this regard, Xinyuan Dai, "Why Comply? The Domestic Constituency Mechanism" (2005) 59 International Organization 363. 704 As noted, ICJ decisions are a source of law. 705 The value of an ICJ's judgment that has not been complied with may also depend on how the community of States perceives the lack of compliance. Judgments involving the declaration of customary international rules produce widespread effects if States other than the non-complying defendant act in the way prescribed by the rules, as understood in the judgment. 706 See Armed Activities, supra note 439 at para. 64. 277
also trigger a deep contempt by almost all States for the Court. So unimaginable is this
self-transformation that not only was the finding of the Court in this decision unanimous, but also no separate opinion of this case even commented on it. Undeniably, the
significance of the expected reactions from its external environment to this particular
7 07 decision made it impossible for the Court to adopt such a self-transformation.
In sum, it is possible to say that the external environment plays an important role in constraining the Court's exercise of its self-transformative autonomy. Such result is a combination of the ICJ's self-observation and self-recognition of its institutional limitations—lack of compulsory jurisdiction paramount among them—and of the Court's observation of the external environment and of States' potential reactions to its judgment.
However, the external environment simply constrains and does not prevent the Court from
exercising the autonomy, even if it faces the risk of adverse reactions. For instance,
despite likely opposition, the Court self-transformed to its fullest extent in the LaGrand judgment when it declared the binding effect of provisional measures, and it is carrying
out a low profile self-transformation by starting to order States on how to comply with its ruling, thereby narrowing the scope of respondents' freedom to select the means to carry
out such compliance.
See Part II.2.1.5.4.6 above for an analysis of this decision. Here, I deal with the explanations of this judgment in terms of the external environment that the Court would have faced had it decided otherwise. 278
II.2.1.5.5.2. Internal Institutional Restrictions on the Self-Transformative Autonomy of the International Court of Justice
It was mentioned in Part 1.2.6.2 of Chapter I that courts may have restrictions on their self- transformative autonomy other than those associated with the external environment, such as a court's collegiality, the impossibility of starting cases on its own, and self- observation.
As to the ICJ, its collegial decision-making process operates as a restriction on any type of decision, including those involving self-transformations. As was mentioned before,
Lauterpacht has indicated that the operation of such decision-making process "provides a means of reconciling the legitimate diversities of judicial outlook...," which confirms the prediction that the self-transformative decisions in principle involve different alternatives regarding scope, timing, and justification that may be supported by different judges and that may range from no self-transformation at all to the fullest self- transformation available. In this debate, what Lauterpacht says in general also applies:
[B]ecause of collective deliberation, an opportunity of examining and answering the opposing opinions and of modifying, under the impact of argument, the views previously expressed.709
Supporters of the exercise of self-restraint in the scope of self-transformations may well, under the impact of argument, convince their more audacious colleagues not to carry out the self-transformation afforded by the case at hand or to do it to a limited extent and under more strict conditions. Judge Lachs implicitly supported this point when he said regarding the Court's decision-making process
708 Lauterpacht, Development, supra note 439 at 65. 279
[T]here is a common concern to achieve something which is much more than the minimum. We frequently agree on things in the interest of a solution to a problem even at the expense of our own philosophical approach. The starting point may be different but the point of arrival becomes the same for the great 710 majority...
The collegial decision-making process acted as a restraint in debates on the indication of provisional measures in the Case Concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). The separate opinion of Judge Weeramantry illustrates very well that he
711 was the first to suggest the binding character of the Court's provisional measures and that the Court dealt with this self-transformation in this case. However, the majority of the
ICJ exerted self-restraint and refrained from adopting the institutional change suggested by its most audacious member. The right timing and the right case would come later in the
LaGrand case, as was shown above.
While the collegial decision-making process of the Court confirms its constraining effect on the Court's autonomy to self-transform, as predicted by the theoretical framework set forth in Part 1.2.6.2.2. of Chapter I, the second restriction of this autonomy, namely, that courts cannot bring cases, operates in a different way for the ICJ. In fact, it is true that the fact that the ICJ, as any court, cannot bring cases on its own and depends on parties for this purpose may lead to the absence of litigation regarding certain institutional features of
^Ibid. at 65. 0 Lachs, "Interview", supra note 533 at 468. 1 Judge Weeramantry started his separate opinion in this case in the following terms: [T]he important question of the binding nature of provisional measures is veiled in some obscurity as both academic and judicial writing speak upon it with an uncertain voice. As this case pre-eminently demonstrates, the matter urgently needs examination for, so long as present uncertainties continue, the Court is hampered in the full discharge of the judicial functions entrusted to it by the United Nations Charter and the Statute of the Court. 280 the Court. However, the way the Court has asserted more control over disputes indicates that it can self-transform even in the total absence of parties' dispute about issues that have a bearing on the Court as an institution. For instance, the power to interpret
Applicants' submission was not part of the dispute between New Zealand and France in the Nuclear Test case, nor was the power to set the agenda of the dispute at issue in this case either, nor was the capacity to assess public information not submitted by parties an issue of debate in Nicaragua. All these self-transformations were put in place by the Court on its own, and the fact that the Court was not a self-starter in the sense that any issue having institutional impact on the Court must first be raised by the parties did not act as a constraint on the ICJ's ability to carry out such self-transformations. In sum, the fact that the Court cannot bring cases and has to adjudicate disputes as defined by parties operates sometimes as a constraint on the Court's autonomy to self-transform; but in others, the
Court has not been restricted by such limitation in order to introduce institutional alterations on its own initiative.
In sum it has been shown that the ICJ possesses autonomy to self-transform, which has been exerted in the past, subject to both external and internal constraints. However, this autonomy has constraints that sometimes operate in ways similar to those of the U.S.
Supreme Court, as seen in Part I of this chapter, and sometimes do it in a different fashion.
Having said this, this thesis moves on to demonstrate the last of Luhmann's requirements for the operation of autonomous systems: namely, their contribution to the evolution of other systems, which the ICJ also satisfies. In effect, it has been recognized that the Court
Weeramantry, supra note 606 at 370. 281 has made significant contributions to the development of the law of the sea,712 to the law of the use of force, and more generally, to customary international law, to mention but three fields. The following section will demonstrate the influence that the Court has had over the last legal field, as an example of its transformative impact on its external environment.
II.2.1.6. The International Court of Justice's Influence over External Autonomous Systems: The Evolution of the Court's Contribution to the Development of Customary International Law
Article 38 of the Statute of the Court establishes the sources of international law that the
Court must apply when adjudicating disputes before it or giving advisory opinions. With regard to customary international law, this provision sets forth in subparagraph 38(l)(b):
l.The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: ... (b) international custom, as evidence of a general practice accepted by law.
On the basis of this text, it is widely accepted that there are two requirements for the declaration of customary international rules. State practice must be uniform—the objective requirement—and States must comply with the rule because they think they are under an international legal obligation to do so—the subjective requirement, also known as opinio juris. In the Asylum case, the Court identified these two requirements and assigned the burden of proof of demonstrating the existence of a rule of customary international law. It said:
See Waldock, supra note 422 at 4. 713 See Enzo Cannizzaro & Paolo Palchetti, eds., Customary International Law on the Use of Force. A Methodological Approach (Leiden: Martinus Nijhoff Publishers, 2005). 282
The party which relies on a custom ... must prove that this custom is established in such a manner that it has become binding on the other party ... that the rule invoked ... is in accordance with a constant and uniform usage practiced by the States in question, and that this usage is the expression of a right appertaining to the State granting the asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom 'as evidence of a general principle accepted as law.'714
This thesis will illustrate the evolution of the influence that the Court has had over this
71 S kind of international law, recognizing that a full analysis of this topic goes beyond the scope of this project. It suffices here to show the variations in the way the Court has affected this external system and the more nuanced approach the Court has today in this regard.
In order to do so, this section is divided into four parts. The first illustrates the first phase in the evolution, marked by a strict approach towards the recognition of customary international law, which meant a low degree of influence over the possibility of development of areas of international law through this type of rule. The second subpart will show the second phase in the evolution of the influence of the Court over customary international law, marked by a more flexible approach regarding the above-mentioned recognition, which allows the ICJ a more significant ability to contribute to the evolution of international customs in specific areas. The third subpart will show the most recent stage in the evolution that seems to be marked by the co-existence of both approaches but
714 Asylum, supra note 620 at 276-77. 715 For Luhmann, law is an autonomous system, and I draw on this categorization to regard customary international law as an autonomous system too. See Niklas Luhmann, Law as A Social System, trans, by Klauss A. Ziegert (Oxford: Oxford University Press, 2004). 283 related to different areas or topics. The four subpart will present the summary of the analysis carried out in this section.
IL2.1.6.1. Low Degree of Influence: The Strict Approach to the Declaration of Rules of Customary International Law
Early ICJ jurisprudence was marked by the requirement of high thresholds for State practice to become customary international law, which resulted in a low degree of influence of the ICJ over the evolution of areas of international law through norms of this nature. This first line of jurisprudence was put in place by the Court in its judgment in the
North Sea Continental Shelf Cases. There, the policy reason for such strict criteria lay in an observation of the external environment: power. As judge Charles De Visscher argued, "Every international custom is the work of power,"717 and customary international law has been developed in many areas through the practice of a few States, generally the most powerful ones, which set a course that it was subsequently followed by small
States.718
Declarations of rules as customary international law imply that all States have to comply with the relevant rule, regardless of whether or not they have participated in its development and regardless of the impact of such rules on their interests. So, it is not surprising that, given such a reality, the Court first adopted a strict approach towards the
North Sea Continental Shelf Cases, supra note 435. 717 Charles Des Visscher, Theory and Reality in Public International Law, (Princeton: Princeton University Press, 1968), as quoted by Oscar Schachter, "New Custom: Power, Opinio Juris and Contrary Practice" in Makarczyk, supra note 454, 531 at 536. [Schachter, "New Custom"]. 718 See Schachter, "New Custom", supra note 717 at 537. 284 recognition of rules of customary international law in the North Sea Continental Shelf
Cases.
This dispute arose from the Netherlands' and Denmark's contention that the principle of equidistance in the delimitation of continental shelves, consecrated in Article 6 of the
Geneva Convention and whose application they were seeking in their dispute with the
Federal Republic of Germany, had later acquired the status of customary international law due to States' practice and the work of the International Law Commission.719
The ICJ declared that it was possible for such process to take place but stated that "this result is not lightly to be regarded as having been attained."721 Then the Court proceeded to establish strict requirements for the transformation of treaty provisions into rules of international customary law. First, the treaty provisions must not be ones with regard to which reservations by parties to the treaty are permitted.722 Second, the international convention must have been the subject of widespread ratification by States most interested in or affected by the given provision.723 Third, the transformation of treaty law into customary international law usually requires the passage of a considerable amount of time.
However, such transformation can take place in a short span of time, but in order for this
719 See North Sea Continental Shelf Cases, supra note 435 at para. 61. Although Denmark and the Netherlands were parties to the Convention, the Federal Republic of Germany was not, which led the former to raise the argument of the transformation of Article 6 into a rule of customary international law binding on the latter. See ibid. para. 26. 720 See ibid, at para. 71. 721 Ibid. 722 See ibid, at para. 72. 723 See ibid, at para. 73. In this particular case, the ICJ considered that the fact that 50 States had ratified the Convention was not an indication of widespread support for the provision up to the point of making the Convention a rule of customary international law. See ibid, at 285
to happen, the practice must be virtually uniform.724 Finally, the Court set a high threshold
for the opinio juris and determined that it had to be demonstrated that States adopt the practice because they regard it as being mandatory, not for convenience. The Court held:
The essential point in this connection— and it seems necessary to stress it—is that even if these instances of action by non-parties to the Convention were much more numerous than they in fact are, they would not, even in the aggregate, suffice in themselves to constitute the opinio juris;—for, in order to achieve this result, two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive necessitates. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.725
The strict approach was followed a few years later by a cautious view regarding the
identification not of rules of but of trends in the evolution of customary international law
in certain domains. This cautious approach was embodied in the Court's judgment in
Continental Shelf (Tunisia/Libyan Jamahiriya). Although the ICJ was asked to rule on the
basis of emerging trends regarding the Law of the Sea, the Court refrained from taking
this path.727
724 See ibid, at para. 74. 725 Ibid, at para. 77. The ICJ concluded in this case that the equidistance principle was used to demark the continental shelf for reasons other than the States' belief of applying a mandatory rule. (See ibid, at para. 78). For all these reasons, the Court concluded that Article 6 of the Geneva Convention had not attained the nature of international customary law. (See ibid, at para. 81). For a detailed analysis of this judgment regarding customary international law, see Peter Haggenmacher, "La Doctrine de Deux Elements du Droit Coutumier Dans la Pratique de la Cour Internationale" (1986) LXXXX R.G.D.I.P. 1. 726 See Continental Shelf (Tunisia/Libyan Jamahiriya), supra note 429 at para. 1. 727 See ibid, at para. 24. Although the ICJ was asked to identify these trends, the Court sent the question back to the parties and asked them to identify those trends they considered the Court should apply, instead of 286
It is important to highlight that the strict approach has been adopted in cases in which the allocation of economic rights has been at stake in the Court's decisions. In effect, the delimitation of continental shelves acquired significant importance once it was possible to exploit the sea bed, so it was completely rational for the Court not to readily infer rules of customary international law from treaties when such rules could involve significant short-, medium-, and long-term financial consequences for States that had decided not to ratify them.729
However, if economic disputes led to the Id's articulation of the strict approach to the declaration of rules of customary international law, other controversies involving international humanitarian law compelled the Court to develop another approach, a more flexible one.
making the Court make such selection. The parties, not the Court, ended up making such identification. See ibid. para. 46. 728 The Court was well aware of this dimension of the dispute in the North Sea Continental Shelf Cases judgment and said that "[S]tates in most cases had not found it necessary to conclude treaties or legislate about their lateral boundaries with adjacent States before the question of exploiting the natural resources of the seabed and subsoil arose ..." North Sea Continental Shelf Cases, supra note 435 at para. 48. 729 This is not to say that the strict approach has been applied only in disputes with economic dimensions. Previously, for instance, in the Asylum case, the Court had articulated a similar approach when, for instance, it required a high degree of uniformity in State practice to fulfil the objective requirement of customary rules of international law. The Court stated: The facts brought to the knowledge of the Court disclose so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on different occasions; there has been so much inconsistency in the rapid succession of conventions on asylum, ratified by some States and rejected by others, and the practice has been so much influenced by considerations of political expediency in the various cases, that it is not possible to discern in all this constant and uniform usage, accepted as law ... Asylum, supra note 620 at 277. 287
II.2.1.6.2. The ICJ's Significant Degree of Influence over the Development of Customary International Law: The Flexible Approach to the Declaration of Rules of Customary International Law
The second phase of the contribution of the ICJ to the development of international law through customary rules was adopted by the Court in its decision in Nicaragua Merits.
This second phase differs from the first one in that the Court eased the requirements for the recognition of norms of this character, thereby allowing the Court to play a more important role in shaping the progress of international customs.
According to this second line of jurisprudence, complete uniformity of State practice is not necessary for a customary rule of international law to emerge. In fact, States' behaviour contrary to the practice would constitute a violation of the rule rather than
"7-2 1 prevent it from crystallizing as customary. The second fundamental feature of the flexible approach regarding the recognition of customary international rules is the loosening of the requirements to infer the existence of opinio juris. This second requirement may not always be inferred from States' beliefs that they are complying with a mandatory precept, but also from Declarations of the UN General Assembly. The
See Nicaragua Merits, supra note 462. 731 The ICJ held: [T]he Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolute rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with a given rule, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule. ... Ibid, at para. 186. 732 The ICJ pointed out: [T]he Court has however to be satisfied that there exists in customary international law an opinio juris as to the binding character of such abstention. This opinio juris may, though with all due caution, be deduced from, inter alia, the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, and particularly resolution 2625 (XXV) entitled "Declaration on Principles of International Law concerning Friendly 288 third significant characteristic of this approach is the recognition that customary international law does not lose such nature when it is embodied in multilateral treaties.
Nicaragua Merits loosened the requirements to declare the existence of customary international law and has been consistently applied in the field of humanitarian international law. Schachter considers that Nicaragua Merits inversed the process of creation. Under the strict approach, State practice came first and opinio juris followed.
After the foregoing decision, opinio juris appears first as a declaration embodied in a UN
General Assembly Resolution, and then State practice will confirm the customary character of the given declaration.734 Nicaragua Merits led to an important shift in the allocation of power among powerful States and the rest of the community of States. The
UN is a wide forum in which developing country members have more participation, and therefore, its resolutions reflect such political reality. Given that General Assembly resolutions do not have a formally binding character, they contain wording that would be virtually impossible to find written in a binding treaty. Or, in other words, powerful UN members accepted texts in UN resolutions that they would not contemplate as being obligations in treaties, only because such resolutions were not-binding. Or, they simply opposed the text but were outnumbered and failed to prevent its approval. The trend set by
Relations and Co-operation among States in accordance with the Charter of the United Nations". The effect of consent to the text of such resolutions cannot be understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution by themselves.... Ibid, at para. 188. 733 See ibid, at para. 174. 734 See Schachter, "New Custom", supra note 717 at 532. 289 the ICJ in Nicaragua Merits could not have been more problematic for powerful UN
States, and it somehow ignored the reality of international politics.
The flexible approach of the Court towards customary international law, as articulated in
Nicaragua Merits, was attenuated ten years later in the Court's advisory opinion in
Legality of Nuclear Weapons. There, the UN General Assembly asked the Court to answer the following question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" A strict application of Nicaragua Merits would have eventually led the Court to declare that the use of nuclear weapons was condemned by customary international law. On November 24, 1961, the General Assembly adopted
Resolution 1653(XVI) declaring the use of nuclear weapons "a direct violation of the
Charter of the United Nations."737
Moreover, since 1961, according to the Court, each year, the General Assembly had enacted resolutions invoking Resolution 1653 and requesting member States to conclude a treaty banning the use of nuclear weapons. Such resolutions, said the Court, had been adopted by large majorities. However, the Court did not take the same path it had taken in Nicaragua Merits and refined the conditions under which General Assembly resolutions may reach customary international law status.
The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value. They can, in certain circumstances,
735 Michael Reisman described this reality clearly when he said that "[i]nternational law's arithmetic, as Leonard Legault has put it, still holds that ninety nine minus one oft-times equals zero, and that one plus one ofttimes equals one hundred." W. Michael Reisman, "The Cult of Custom in the Late 20th Century" (1987) 17 Cal. W. Int'l LJ. 133 at 137. 736 U.N. General Assembly Resolution 49/75 K, 15 December 1994. 737 Legality of Nuclear Weapons, supra note 430 at para. 71. 738 See ibid, at para. 73. 290
provide evidence important for establishing the existence of a rule or the emergence of an opinio juris. To establish whether this is true of a given General Assembly resolution, it is necessary to look at its content and the conditions of its adoption; it is also necessary to see whether an opinio juris exists as to its normative character. Or a series of resolutions may show the gradual evolution of the opinio juris required for the establishment of a new rule.7 9
On this occasion, negative votes on General Assembly resolutions and State practice contrary to the rule were seen as acts preventing the rule from crystallizing as customary international law.740 It is important to state that the Court, in its advisory opinion in
Legality of Nuclear Weapons, attenuated but did not reverse its position regarding customary international law set forth in Nicaragua Merits, so the flexible approach persists and has generally been considered as the dominant one. Yasuaki says:
It is well known that the ICJ has used the notion of customary international law in a highly flexible manner. The ICJ has blurred the distinction between state practice and opinion juris in demonstrating norms of customary international law. It has also become more inclined to rely on United Nations General Assembly declarations and resolutions as well as multilateral treaties to demonstrate the customary rules and principles of general international law. Further, the ICJ has relaxed the time requirement in the formation of general customary law. ... Such deviations are the unavoidable and understandable methods through which the ICJ identifies binding norms within the framework of Article 38 of the ICJ Statute. Because there is no treaty binding all states in international society, the ICJ is compelled to apply either rules of "customary" law or "general principles of law recognized by civilized nations", when it is required to apply norms with universal validity. Because the latter has many disadvantages, the ICJ has chosen the former. As a consequence, the ICJ is compelled to demonstrate norms of universal validity in terms of customary law even in situations where it is difficult to do so according to the traditional, "rigid" doctrine of customary law.741
However, a broad evaluation of the Court's jurisprudence regarding customary international law on the basis of one of its most recent decisions indicates a new step in
Ibid, at para. 70. See ibid, at paras. 71, 73. 291 the evolution of the contribution of the ICJ to the development of international rules of this character.
II.2.1.6.3. The Recent "Revival" of the Strict Approach Regarding Customary International Law
The strict approach towards customary international law was revived by the ICJ in Diallo, and it is thus possible to posit that today the influence of the ICJ over these norms of international law may vary depending on the nature of the subject the Court deals with.
For issues mostly of a humanitarian character, the flexible approach towards customary international law persists and gives the Court significant influence over the development of this area of international law through customary norms. On the contrary, at least for economic subject-matters, the approach of the Court may be the strict one, which implies the Court's virtual withdrawal from the stage to leave the evolution of such matters, through treaty law, in State hands.
The fact that the strict approach has been revived is evidenced by its application not long ago in the decision on preliminary objections in Diallo. The facts of the Diallo dispute before the ICJ can be summarized as follows. Ahmadou Sadio Diallo is a Guinean businessman who lived in the Democratic Republic of Congo (DRC), the ex-Zaire, for 32 years.742 He settled in the DRC in 1964, and ten years later, he founded two companies,
Africom-Zaire (Africom) and Africontainers-Zaire (Africontainers). Both companies began having problems with major Congolese public institutions and private companies in
Yasuaki, supra note 421 at 19-20. 292 the 1980s and started judicial proceedings to resolve their disputes, which remain unresolved to date.743 Both companies are claiming damages that amount to USD 36 billion against Congolese public entities, an amount that is three times the DRC's foreign debt.744 On October 31, 1995, the Prime Minister of Zaire, today the DRC, ordered the expulsion of Mr. Diallo on the grounds that his "presence and conduct have breached public order in Zaire, especially in the economic, financial and monetary areas, and continue to do so."745
In the case before the ICJ, Guinea sought to exercise its diplomatic protection on behalf of
Mr. Diallo as an individual and as associe146 of Africom and Africontainers and, specifically, his rights to oversee, control, and manage the companies. It also asked to exercise its right to diplomatic protection, by substitution, of these companies in order to
74.7 recover the debts owed to them, despite the fact that the ICJ had declared in Barcelona
Traction that only the State of incorporation of legal persons could seek their diplomatic 748 protection.
To support this claim, Guinea argued that multiple bilateral investment treaties and international arbitration awards had recognized that shareholders can seek reparation for damages caused by host States on their companies. The Court applied the strict jurisprudence and said:
742 See Diallo, supra note 466 at para. L. 743 See ibid. 744 See ibid, at para. 19. 745 See ibid, at para. 15. 746 The term associe is the one used by the Court in its decision. See ibid, at para. 25. 747 See ibid, at paras. 27-29. 748 See Barcelona Traction, supra note 465 at para. 70. 293
The fact invoked by Guinea that various international agreements, such as agreements for the promotion and protection of foreign investments and the Washington Convention, have established special legal regimes governing investment protection, or that provisions in this regard are commonly included in contracts entered into directly between States and foreign investors, is not sufficient to show that there has been a change in customary rules of diplomatic protection; it could equally show the contrary. The arbitrations relied on by Guinea are also special cases, whether based on specific international agreements between two or more States, including the one responsible for the allegedly unlawful acts regarding the companies concerned ... or based on agreements concluded directly between a company and the State allegedly responsible for the prejudice to it.. .749
As can be seen, in the Diallo dispute, which involves mostly economic interests, the Court did not apply the flexible approach but applied a more strict jurisprudence for the recognition of rules of customary international law, which means that both approaches— the flexible approach in the domain of humanitarian law, and the strict approach mostly
applied to economic subject-matters— may persist today in this realm.
II.2.1.6.4 Summary
In sum, the contribution of the ICJ to the development of customary international has
varied over time. From a low degree of influence, marked by the strict approach, to a more
pro-active role after the adoption of the flexible approach. Most recently, the revival of the
former indicates that such influence may depend on the subject-matter: for issues of
humanitarian character, the ICJ seems keen to press the development of customary
international rules, while for economic subject-matters, among others, the Court has
decided to play a much more modest role, by leaving the evolution of their international
Diallo, supra note 466 at para. 90. On this basis, the Court upheld the preliminary objection invoked by the Democratic Republic of Congo and declared that Guinea did not have standing to exercise its diplomatic 294 rules, mostly in the exclusive hands of States through treaty law, thereby satisfying
Luhmann's definition of the last feature of an autonomous system: its contribution to the evolution of other external systems.
Regardless of whether these trends continue, there can be no doubt that the ICJ has an impact on the process of formation of customary international law.
II.2.1.7. Partial Conclusion Regarding the Operation of the International Court of Justice as an Autonomous System
Part II of this chapter has illustrated how there is evidence indicating that the ICJ has operated in ways similar to autonomous systems, as defined by Luhmann, by satisfying all the features of the functioning of these systems described in Chapter I of this thesis.
First, the ICJ essentially possesses a double identity as a judicial body and as a legal advisor to the UN. As a judicial body, the Court is empowered to adjudicate inter-State disputes and has done so, but such identity has not prevented the Court from adopting decisions impacts of which have gone well beyond the parties to the disputes, such as those in which it has declared the existence of rules of customary international law, to mention but one single example. As a legal advisor, the Court has been well aware of the limits of this identity, in the sense that it is restricted only in relation to the UN, and has taken steps not to extend it to its member States.
protection on behalf of the companies of which Mr. Diallo was an associe. See ibid, at para. 89. 295
Second, the Court has also performed self-observation when performing its duties. This feature of its operation has manifested itself in different ways: (i) the Court's refusal to go to the merits of the dispute because of the adverse impact the judgment may have on the institutional reputation of the Court; (ii) the Court's recognition of its limits as a judicial institution to resolve certain disputes; and (iii) the Court's recognition of the weakness of the mechanism to enforce its judgments and of the need to craft decisions aimed at securing high levels of compliance, thereby enhancing the prestige of the Court as a valuable means to effectively resolve inter-State disputes.
Third, the ICJ also operates by recursivity. In effect, although by virtue of Article 59 of the Statute of the Court, its decisions have no binding effect on any beyond the parties to disputes, it is routine to find that the Court applies and re-interprets its prior decisions to ratify, clarify, or reverse them, as happens with virtually every court.
Fourth, as to the observation of the external environment, despite the existence of certain statements suggesting that the Court does not perform such observation, the fact is that even Presidents of the Court have accepted such observation. The Court observes its external environment because there have been cases in which the undesired consequences attached to certain legal propositions over such environment have led the Court to reject them. In other events, the magnitude of certain disputes, for instance those involving nuclear weapons, has forced the Court to recognize its limits as a judicial institution. No doubt, the Court observes its external environment, and the reason is obvious: being a fragile institution in the sense that it lacks compulsory jurisdiction, it is forced to deliver 296 judgments that have to respond to the requirements of international law and to
international politics.
Fifth, the Court has autonomy to self-transform and has exerted it in the past. This is so
because the Court satisfies the three requirements derived from Luhmann's theory for the
existence of such autonomy in the case of judicial institutions. First, the ICJ can take
decisions about itself, regarding jurisdiction and participants, as to when disputes are legal
or not, among other issues. Second, the flexibility afforded by international law offers the
Court a set of alternatives to choose from before deciding cases including those related to
self-transformations, as acting and former members have declared and as the Court itself
stated in its judgment in Continental Shelf (Tunisia/Libyan Jamahiriya). Third, the Court
steers its self-transformation by selecting, through the operation of its collegial decision
making process, the opportunity for, the extent of, and the justification for its self-
transformations in light of the external environment in question. As to this third
requirement, the bargaining process within the Court was specifically described, including
how it shapes its judges' positions both with regard to law and to the external environment
and its potential reactions, which allow the Court to craft self-transformative rulings that
better respond in timing, extent, and rationale to such environment. As was illustrated
generally in Chapter I, and which is wholly applicable to the ICJ, the collegial decision
making process of the ICJ introduces the preferences of the members of the court, which
compete with the external factors of the case and which must be taken into account during
the bargaining. Such collegiality allows the ICJ to exhibit a greater level of independence
from external pressures in the judgments it hands down. 297
Certain past and ongoing self-transformations, and one that has hardly taken place, were
also shown in this Part II. In this regard, the ICJ has asserted significant powers to control
disputes before it in terms of jurisdiction, public information, interpretations of
submissions, freedom of argumentation, and the agenda of the dispute, which, put together, have meant that the Court has gained significant power to determine what and
what not to adjudicate and which arguments it will use and which ones will it discard,
according to the external circumstances of the case at hand.
In addition to its increasing management over disputes, the Court has done the same
regarding advisory opinions, by virtue of the capacity it has attributed to itself to reframe
the legal questions put to it by the UN General Assembly, and once again, by determining
what aspects of the question the Court will deal with in light of the external environment.
The Court's expansion of its jurisdiction is evidenced by the tacit creation of the judicial
review of UN political organs' resolutions; the recognition of jurisdiction over ongoing
disputes that the UN Security Council is dealing with and the declaration of the binding
character of the Court's provisional measures.
This Part II has also illustrated the ongoing self-transformation that appears to have begun,
in which the Court has been more assertive in narrowing States' discretion regarding how
to comply with its rulings, despite the existence of a well-established tradition of profound
respect for States' freedoms in this regard. Finally, this part has called attention to a self- 298
transformation that did not take place: the assertion of jurisdiction only on the basis of the
alleged violation of norms of jus cogens.
Despite demonstrating the existence of the autonomy to self-transform and its exercise by
the Court, this part has displayed its external and internal limitations and has highlighted
some of the differences that these limitations have vis-a-vis highest municipal courts. For
instance, States cannot punish the ICJ for adverse rulings in ways similar to those that
disappointed governments or legislatures can use to admonish domestic highest courts;
however, States do possess other instruments to make explicit their opposition to Court's judgments and have used these against the Court, and the Court is well aware of them. On
the other hand, the ICJ has internal restrictions to its self-transformative autonomy,
although they also operate in a slightly different way from those of the U.S. Supreme
Court. For instance, the ICJ has not found its lack of power to start a dispute regarding an
institutional issue to be a specific barrier to self-transform, and it has sometimes done so
entirely on its own initiative, although on occasion compelled by the external
environment.
Finally, the Court has buttressed the development of autonomous external systems, in
particular customary international law. It has done so by starting with a more cautious
approach, by subsequently designing a more active role in this regard, and by setting the
present stage in which such influence appears to vary according to the subject-matter
involved. The ICJ seems to have important influence regarding humanitarian issues, less
regarding economic ones. 299
As a general conclusion, it is possible to say that the ICJ has not only operated as an autonomous system, in the terms defined by Luhmann, but that the Court has also been able to deal with the significant institutional weakness that the lack of compulsory jurisdiction imposes on it. Despite such significant limitation, the Court has been able to put in place significant self-transformations, without alienating States in the long run. 300
CHAPTER III
THE OPERATION OF THE WTO APPELLATE BODY IN LIGHT OF LUHMANN'S THEORY AND ITS AUTONOMY TO TRANSFORM THE WTO DISPUTE SETTLEMENT SYSTEM
Chapter III will draw on the theoretical framework put in place in Chapter I and on the analysis of the U.S. Supreme Court and on the International Court of Justice made in
Chapter II, in order to offer a description of the operation of the AB as an autonomous system, and in particular, to illustrate how the AB has autonomy to transform the WTO dispute settlement system, and how it has exerted such autonomy. While these are the overall objectives, this Chapter also seeks to compare the operation of the AB with those of the U.S. Supreme Court, and, in particular of the ICJ, in order to show similarities and differences that may shed light on how the Appellate Body performs in the present and may carry out its functions in the future.
To develop this analysis, this Chapter is divided into four parts. The first part presents a broad historical overview of the GATT mechanism to solve trade disputes, and of its mainly diplomatic approach. The second part illustrates the basics of the WTO dispute settlement systems, its institutions and different stages. The third part analyses the functioning of the Appellate Body in light of the basic features of operation of autonomous systems described in Chapter I. This part will concentrate on the assessment of the Appellate Body's limited autonomy to transform the WTO dispute settlement system, and how this autonomy has been deployed. Finally, the fourth part will present the general conclusions of Chapter III. 301
III.1. Dispute Settlement in the GATT
At the time of its creation, GATT did not have a dispute settlement mechanism and disputes were solved mainly through diplomatic means only. Inter-state controversies were debated twice a year in the meetings of Contracting Parties. Subsequently developments led to the creation of working parties charged with the responsibility of solving either all or particular disputes,750 and made up of delegates of the GATT
Contracting Parties involved.751 Their duty was, according to Hudec,
[t]o negotiate a political solution acceptable to the key parties with direct interest in the matter. ... [T]he drafting of the working party's conclusions was not so straightforward ... Either the Chairman of the working party or the Secretariat would probably have had to negotiate a bit with both parties in order to formulate a ruling that both could accept. Often the key was to find a verbal formulation which said enough to indicate the proper legal conclusion, but which did not say it so clearly that it would embarrass the losing government...
The early GATT legal rulings usually met these needs for kinder, gentler and more obscure legal rulings by resorting to the language of diplomacy rather than law »752
In 1955 the seed of a third party method of dispute settlement was planted thanks to a decision of the GATT Director-General's, Eric Wyndham-White to refer disputes to panel of experts made up of individuals who would not represent any government and would
See John H. Jackson, The Jurisprudence of GATT and the WTO. Insights on treaty law and economic relations (Cambridge: Cambridge University Press, 2000) at 172 [Jackson, Jurisprudence]. 751 See ibid, at 172. The working parties usually comprised delegates of the conflicting parties, of other interested parties, and neutral individuals, and were not supposed to render any decision. For the operation of the working parties mechanism, see Robert Hudec, The GATT Legal System and World Trade Diplomacy (New Hampshire: Butterworth Legal Publishers, 1990) at 78-9 [Hudec, Diplomacy] 752 Robert E. Hudec, "The Role of the GATT Secretariat in the Evolution of the WTO Dispute Settlement Procedure" in Jagdhish Bahgwati & Mathias Hirsch, eds., The Uruguay Round and Beyond: Essays in Honour of Arthur Dunkel (New York: Springer-Verlag, 1998) 101 at 105,06 [Hudec, "GATT Secretariat"]. 302
-7CO
independently assess the controversy. The Director-General took this determination on his own and without prior instructions from the GATT Contracting Parties. However, as
Hudec stated, the subtle creation of the panel mechanism by no means guaranteed its
preservation. According to this author, GATT panels
[H]ad to work for acceptance in direct face-to-face negotiation with the community value structure. In each of the cases the result had to be established gradually, cautiously, and without assistance from any reservoir of independent authority emanating from the decision-making bodies themselves. It was in overcoming this particular barrier to interpret decisions that GATT consensus and impressionistic decision making were so important. ... The impressionistic technique of decision making was the tool which GATT tribunals used in negotiating with the larger GATT consensus on difficult issues. The technique was critical, for it allowed tribunals to test needed interpretations during the very process of decision, and to accommodate decisions to whatever degree of support the interpretation might earn.
The panels frequently used the negotiating history of GATT texts as the main
interpretative method of GATT provisions.755 By doing this, panels gave the permanent
impression of attaching to these precepts the content Contracting Parties gave them when
they negotiated the said norms.
The evolutionary process of the GATT dispute settlement mechanism continued and the
panel in Uruguayan Recourse to Article XXIII put in place another piece by establishing
that any violation of GATT obligations constituted a "prima facie nullification and
impairment," thereby shifting the burden on respondent Contracting Parties to
753 See Jackson, Jurisprudence, supra note 750 at 172, and Hudec, Diplomacy, supra note 751 at 85-87. 754 Ibid, at 203. 755 Ernst-Ulrich Petersmann, The GATT/WTO Dispute Settlement System. International Law, International Organizations and Dispute Settlement (London: Kluwer Law International, 1997) at 93 [Petersmann, GATT/WTO Dispute Settlement System]. 303 demonstrate that such nullification and impairment did not take place. The panel system and the concept of "prima facie nullification and impairment" were fully embraced by the
Contracting Parties during the Tokyo Round, and in 1979 they approved the
Understanding Regarding Notification, Consultation, Dispute Settlement and
Surveillance.757 This instrument established the four stages of the GATT dispute settlement mechanism mentioned in its heading, and also determined that all panel reports would be adopted by the Council and by consensus, which gave losing Contracting Parties the power to block such adoption. This positive consensus requirement became the
-ICO greatest weakness of the mechanism. Despite this flaw, the mechanism continued evolving and in 1988 the GATT panel in United States—Taxes on Petroleum and Certain
Imported Substances added a new feature to the concept of nullification and impairment by establishing that the nullification and impairment was a de jure presumption, so respondent Contracting Parties were precluded from arguing that the violation existed but it did not have adverse trade effect.759
However, the evolution of the GATT dispute settlement mechanism was not constant in its speed. It started in the 1950s but it had an extraordinary halt in the 1960s until early
1970s, when both the European Communities and the United States took a strict diplomatic approach to solving trade disputes. The United States changed its strategy in
Uruguayan Recourse to Article XXIII (1962), 34 Supplement. B.I.S.D. 95. See Jackson, Jurisprudence, supra note 750 at 172. 757 GATT, Understanding Regarding Notification, Consultation, Dispute Settlement and Surveillance, 26th Supp. B.I.S.D. (1980)210. 758 See Jackson, Jurisprudence, supra note 750 at 175. 759 See ibid, at 176. 760 See Hudec, "GATT Secretariat", supra note 752 at 109. See also in this regard, Hudec, Diplomacy, supra note 751 at 235-50. 304 the first years of the 1970s to defeat protectionism and other GATT members followed suit, until the Tokyo Round strengthened the dispute settlement mechanism. During the
1970s complex cases started to come before the GATT and the quality of the results were disappointing, which led to initial creation and subsequent development of a Legal
Division within the GATT Secretariat. At the end of the 1980s the dispute settlement mechanism was firmed established. Governments were more confident in the mechanism and used it more regularly.7
It is also important to highlight that the GATT dispute settlement mechanism was enhanced not only on a case-by-case basis but through subsequent codifications of practice by the Contracting Parties after the Tokyo Round, which took place in 1982, 1984 and 1989, before the major one achieved in the Uruguay Round.
Despite this first steps in the process of legalization of the GATT dispute settlement mechanism, it preserved a significant diplomatic character, which is highlighted by Weiler in the following terms:
Although disputes might have raised broad systemic issues of relevance and consequence far beyond the immediate parties, the process tended to treat them as discrete eruptions between members requiring 'settlement'. This would be attempted in the pre-Panel stage but even if the overt diplomacy failed, empanelment was, indeed, a continuation of diplomacy by other means. .. .766
761 See Hudec, "GATT Secretariat", supra note 752 at 110. 762 See Hudec, Diplomacy, supra note 751 at 251 - 263. 763 See Hudec, "GATT Secretariat", supra note 752 at 114-15. 764 See ibid, at 115. 765 See Ernst-Ulrich Petersmann, GATT/WTO Dispute Settlement System, supra note 755 at 85. 766 J.H.H. Weiler, "The Rule of Lawyers and the Ethos of Diplomats. Reflections on the Internal and External Legitimacy of WTO Dispute Settlement" (2001) 35 J. World Trade 191 at 195 [Weiler, "Ethos of Diplomats"]. 305
The major flaw of the GATT system was no doubt the consensus requirement for the adoption of panel reports, according to which the consent of the losing party was required for such adoption.767 However, it was by no means the only one. The Tokyo Round established different mechanisms for dispute settlement for various GATT Codes, and sometimes controversies aroused regarding which of the mechanism was the one to be used to settle the dispute. Another important imperfection was the power some
Contracting Parties had to try to influence the final panel decision by pressing particular panellists, as described by Jackson and Plank.769
However, even a partial description of the birth and early evolution of the GATT dispute settlement mechanism, should mention the important participation of the GATT
This without saying that the system was inoperative due to this requirement. In effect, the rate of adoption of GATT panel reports can be considered to be very high. Hudec demonstrated it as follows: The GATT dispute settlement procedure has been a quite a successful international legal institution. The overall success rate of 88 percent, or even the 1980s success of 81% percent, means that at least four out five valid complaints are being dealt with successfully
Robert Hudec, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH: Butterworth Legal Publishers, 1993) at 353 [Hudec, Enforcing International Law]. Such extraordinary rate of adoption of GATT panel reports was due to peers' pressure and to the fact that a working system was in the best interest of the Contracting Parties. See Said El-Naggar, "Developing Countries and the International Trading System" in Steve Charnovitz, Debra P. Steger & Peter Van den Bossche, eds., Law in the Service of Human Dignity. Essays in Honour ofFlorentino Feliciano (Cambridge: Cambridge University Press, 2005) 58 at 69. 768 See Jackson, Jurisprudence, supra note 750 at 177. 769 See ibid.. Plank, a former GATT Secretariat lawyer, confirms such pressures: Unfortunately, certain parties to the dispute and interested parties have been known to exercise pressure on the government of a panelist or on the panelist himself to decide the case in their favour. In one case, a chairman so approached chose to quit the panel... Rosine Plank, "An Unofficial Description of How a GATT Panel Works and Does Not" (1987) 29 Swiss Review of International Competition Law 81 at 105. Davey mentions other criticisms to the GATT dispute settlement mechanism, such as lack of use and delays in rendering decisions. For another complete view of the history and operation of the system, see William J. Davey, "Dispute Settlement in GATT" (1987-1988) 11 Fordham Int'l L.J. 51 [Davey, "Dispute Settlement"]. Petersmann also mentions that lack of transparency, lack of adoption of reports under the Anti- Dumping and Subsidies Codes during the 1980s, and forum shopping with regard to the eight distinct dispute settlement proceedings were additional flaws of the GATT dispute resolution mechanism. See Ernst- Ulrich Petersmann, GATT/WTO Dispute Settlement System, supra note 755 at 90-91. 306
Secretariat in such process. The agenda setting character of the GATT Secretariat gave it a pivotal role in shaping the evolution of the mechanism. Hudec points out:
[W]ith the parties out of the room when the case were being decided, the Secretariat would be able to take stronger positions on the merits. Likewise, the Secretariat was able to use its role as principal draftsman more aggressively. To be sure, panel members would continue to exert an important check on the political viability of panel decisions, and their endorsement of decisions would still be critical to their perceived legitimacy. But as time went on, and particularly as new generations of GATT delegates replaced the original ITO veterans, the Secretariat's expertise and neutrality would become recognized by governments as the principal influence on the content of panel rulings.
Having set out the basic features of the GATT dispute settlement system, this thesis proceeds to describe the different stages of the WTO dispute settlement system, to provide
an adequate background to fully understand its operation and how the Appellate Body has
contributed to developing it.
III.2. Brief Description of the WTO Dispute Settlement System and Its Main Innovations
The Uruguay Round formally created a dispute settlement system as part of the new
World Trade Organization, established new institutions and introduced significant changes
to the operation of the system, as compared to that of the GATT.771 The first was the
creation by Article IV.3 of the WTO Agreement of the Dispute Settlement Body (DSB),
Hudec, "GATT Secretariat", supra note 752 at 107. However, Hudec also highlights that the expansion of the Secretariat during the 1980s diminished such influence in certain cases in which GATT panels were receiving conflicting advise from different Secretariat staff, since lawyers from the Legal Division had sometimes one view, and her colleague from another Division in charge of handling the subject-matter of the dispute at issue a different one. See ibid, at 115. 771 See in this regard, Donald M. McRae, "The Legal Ordering of International Trade: From GATT to the WTO" in Ronald St. John MacDonald & Douglas M. Johnston, eds., Towads World Constitutionalism. Issues in the Legal Ordering of the World Community (Leiden: Martinus Nijhoof Publishers, 2005) 543 at 555-64. 307
779 with the aim providing security and predictability to the multilateral trading system.
The DSB is made up of representatives of all WTO Members. It is the General Council acting to discharge the duties assigned to the DSB.773 Pursuant to Article 2 of the 774
Understanding on Rules and Procedures Governing the Settlement of Disputes, the DSB establishes panels, adopts panel and AB reports, maintains the surveillance of the implementation of its recommendations and rulings, and it is the only body allowed to authorize the suspension of concessions and of other obligations. The second institution created by the Uruguay Round was the WTO Appellate Body. The concern with the legal quality of some GATT panel reports, and the need to suppress the weakness of the positive consensus for their adoption, led to the creation of the Appellate Body.776
The DSU also addressed the main weakness of the GATT dispute settlement mechanism and inversed the rule for the adoption of panel and Appellate Body reports. Before the rule was the positive consensus, as was shown, under the WTO the new rule was negative consensus, pursuant to Article 16.4 of the DSU. Therefore, only if all members present at the time the report is submitted to the DSB vote against the decision, the report is not adopted. This determination virtually created the automatic adoption of panel reports since
772 See Article 3.2 of the DSU. 773 See Article IV.3 of the DSU. See also Debra P. Steger, Peace Through Trade: Building the World Trade Organization (London: Cameron May, 2004) at 39 [Steger, Peace through Trade]. 774 See WTO Legal Texts, supra note 4 at 354-55. 775 Article 2.4 of the DSB always requires the DSB to adopt decisions by consensus, defined by the footnote of this provision in the following terms: The DSB shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting of the DSB when the decision is taken, formally objects to the proposed decision. This decision-making rule differs from the majority rule provided for in Article DC: 1 of the WTO Agreement for the Ministerial Conference and the General Council. See in this regard, Steger, Peace through Trade, supra note 773 at 41. 77 See Jackson, Jurisprudence, supra note 750 at 132. See also Steger, Peace through Trade, supra note 773 at 154. 308 the prevailing party will likely vote for its adoption, and considerably enhanced the role of
WTO panels and of the Appellate Body.777 Such improvement also brought about a significant functional change, since panels and the Appellate Body do not have the burden of always convincing WTO members of the merits of their legal reasoning and results to get their panels adopted by the DSB. Undeniably, as has been repeatedly stressed, this
Contracting Parties' determination meant a change from the diplomatic oriented system of the GATT to a more rule-oriented dispute settlement system under the WTO.778 This evolution fits well within that of international law in general, as nicely captured by Louis
Henkin in the following words: "In relations between nations, the progress of civilization may be seen as movement from force to diplomacy, from diplomacy to law."779
Despite this significant change, one feature of the GATT dispute settlement mechanism that was preserved by the WTO dispute settlement system was that panels and the AB reports were not legally binding until they were adopted by the DSB. Although to some the adoption means little since it is virtually automatic, for a member of the AB, Georgio
Sacerdoti, such adoption has a political connotation: lack of compliance with specific reports is not a exclusive problem for panels and the AB but it is a concern for the whole
WTO Membership, because it is the whole Membership which adopted it.780
777 See Article 16.4 of the DSU. 778 For an analysis of the concepts of diplomatic-oriented vs. rule-oriented dispute settlement, see John Jackson, World Trading System. Law and Policy of International Economic Relations 2d ed. (Cambridge: MIT Press, 1997) at 109-11 [Jackson, World Trading System]. 779 Louis Henkin, How Nations Behave: Law and Foreign Policy (New York: Columbia University Press, 1979) at 1. 780 See Georgio Sacerdoti, "The dispute settlement system of the WTO in action: a perspective on the first ten years" in Sacerdoti et al, supra note 155, 35 at 37-38 [Sacerdoti, "WTO Dispute Settlement"]. Sacerdoti also mentions an important issue of the automatic adoption by the DSB: its unconditionally, which means that the fact that the DSB is the only body able to give effect to panels and AB reports does not mean that it can select what findings and conclusions it adopts and which it does not. Article 17.14 sets forth that 309
In addition, the DSU established clear deadlines applicable to both panels and the
Appellate Body to render their reports so another past defect of the GATT mechanism was removed. Another significant development brought about by the Uruguay Round was the compulsory jurisdiction of the WTO dispute settlement system to resolve of disputes concerning nullification and impairment of WTO rights, which marks a stark contrast with the ICJ as was illustrated in Chapter II.2. In effect, pursuant to Article 23 of the DSU, only the DSB, not individual Members on their own can decide whether a measure is inconsistent with the covered agreements.782 Also relevant, is the fact that the jurisdiction
An Appellate Body report shall be adopted by the DSB and unconditionally accepted by the parties to the dispute unless the DSB decides by consensus not to adopt the Appellate Body report... Although a similar feature of unconditionality is not provided for panel reports, the fact is that there is no provision in the DSB allowing it to condition the adoption of panel reports. Thus, the political organs of the DSB cannot revisit the findings and conclusions of panels or the AB. The scope of its competence is to adopt them or to reject them in full. For an analysis of the unconditonality of the adoption of AB reports, see ibid at 42-3. 781 During the GATT era, delays in the assessment of the case by panels were common. See Davey, "Dispute Settlement", supra note 769 at 84. Under the WTO, the situation is different. Panel proceedings should normally last six months and only exceptionally nine months since the composition of the terms of reference. See Articles 12.8 and 12.9 of the DSU. Practice during the first ten years reveals that while the Appellate Body has managed to render its reports within the timeframe provided by the DSU, panels have not, and their average time has been increasing. In average, panels issued their reports during the first four years within 11 months, the next three years within twelve months, and over the next three years, within fourteen months. See World Trade Organization, WTO at 10. Governance, Dispute Settlement and Developing Countries. World Trade Organization. Tenth Anniversary Conference at Columbia University. 2006 at 16 [WTO, Tenth Anniversary] 782 Article 23 of the DSU provides as follow: Strengthening of the Multilateral System
1. When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements or an impediment to the attainment of any objective of the covered agreements, they shall have recourse to, and abide by, the rules and procedures of this Understanding.
2. In such cases, Members shall:
(a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired or that the attainment of any objective of the covered agreements has been impeded, except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding, and shall make any such 310 is not only compulsory, but it is also the same for all of WTO Members because they were not allowed to make any reservation to the DSU.
Today the WTO dispute settlement system is comprised of eight stages. Its starts with consultations among interested members, pursuant to Article 4 of the DSU, in which a
Member that has identified a measure adopted by another Member and considers it to be nullifying and impairing its rights under the covered agreement seeks to find a mutually agreed solution to the controversy.785 Consultations usually allow Members to have a better understanding of the facts involved or of the nature of the measure in question and in a significant number of cases they lead to finding a settlement of the controversy.
However, if the matter is not resolved within 60 days after the respondent received the
determination consistent with the findings contained in the panel or Appellate Body report adopted by the DSB or an arbitration award rendered under this Understanding;
(b) follow the procedures set forth in Article 21 to determine the reasonable period of time for the Member concerned to implement the recommendations and rulings; and
(c) follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time. WTO Legal Texts, supra note 4 at 372-73. 783 The jurisdiction is the same for all WTO Members with regard to disputes arising out of multilateral trade agreements, but not with regard to Plurilateral Trade Agreements, since not all WTO Members are parties to them. See Article XIV.4 of the World Trade Agreement. 784 Article XVI.5 establishes that reservations in respect to multilateral trade agreements will be made in the terms provided in the respective agreement. No such a possibility is allowed with regard to the DSU. Therefore the jurisprudence of the WTO regarding jurisdiction is less frequent and lacks all the nuances of the jurisprudence of the ICJ. See in this regard, Robert Howse & Susan Esserman, "The Appellate Body, the WTO dispute settlement system, and the politics of multilateralism" in Sacerdoti et al, supra note 155, 61 at 63. 785 See in this regard, Christiane Schuchhardt, "Consultations" in Patrick F. J. Macrory, Arthur E. Appleton & Michael G. Plummer, eds., The World Trade Organization: Legal, Economic and Political Analysis vol. 1 (New York: Springer, 2005) 1197, and Gary N. Horlick, "The Consultation Phase of WTO Dispute Resolution - A Private Practitioner's View" (1998) 32 International Lawyer 685. 786 See World Trade Organization, A Handbook on the WTO Dispute Settlement System (Cambridge: Cambridge University Press, 2004) at 43-44. 311 request for consultations,787 the complaining Member may request the DSB to establish a panel to assess the conformity with the covered agreements of the measure at issue. The request for the establishment of the panel must identify the measure at issue and set out the claims of violation, namely, the provisions of the covered agreements that the complainant regards as being contravened. Such request sets out the terms of reference of the dispute and determines the jurisdiction of the respective panel, once established. In this sense, panels are allowed neither to review the conformity with the covered agreements of measures that were not included in the request nor to assess the measures under claims that were not included therein.
The establishment of the panel is a right of the complainant, and the panel is composed of
3 to 5 individuals, vested with the duty to assess the claims and the defences argued by the respondent Member through a flexible procedure in which due process must be ensured.
In fact, panels are obliged by virtue of Article 11 of the DSU to carry out an objective assessment of the matter before them both in terms of law and facts. Participation in panel proceedings is not restricted to the parties directly involved, since other WTO members may intervene as third parties when they claim to have a substantial interest in the relevant dispute.
78Q
The report of the panel can be appealed before the Appellate Body by the parties but only with regard to issues of law and interpretation,790 if it is not appealed by any of the
787 See Article 4.7 of the DSU. 788 See Article 10 of the DSU. 789 See Article 17.4 of the DSU. 790 See Article 17.6 of the DSU. 312 parties it is adopted by the DSB. Once the Appellate Body renders its report, which it must do within 90 days, such report along with that of the panel are sent for adoption by the
DSB as established in Article 16 of the DSU. Once adopted, and if the measure at issue was declared to be inconsistent with the covered agreement, complaining and respondent parties may agree on a reasonable time to implement the recommendations and rulings of the DSB. However, if no agreement is reached, the complainant may ask the DSB to appoint an arbitrator who will calculate such time in an award that is binding on the parties, pursuant to Article 21.3(c) of the DSU. As a matter of suggestion, the DSU recommends that implementation not last more than 15 months, although this provision
allows arbitrators to set shorter or longer periods depending on the circumstances.
Within the WTO dispute settlement system, respondent Members have broad discretion to
select the means to implement the recommendations and rulings of the AB, that is, to
comply with the adopted panel and AB reports of the case, whose effects are
prospective and not retrospective. However, if the complainant Member is not satisfied
For a general description of the WTO appellate process, see Donald McRae, "The Emerging Appellate Jurisdiction in Internacional Trade Law" in James Cameron & Karen Campbell, eds., Dispute Resolution in the World Trade Organization (London: Cameron Mat, 1998) 98 [McRae, "Appellate Jurisdiction"]; Victoria Donaldson, "The Appellate Body: Institutional and Procedural Aspects" in Macrory et ai, supra note 785, 1277; and John Jackson, Sovereignty, the WTO and Changing Fundamentals of International Law (Cambridge: Cambridge University Press, 2006) 156-58 [Jackson, Sovereignty]. 792 No DSU provision states so but GATT and WTO practice determined such effect of adopted panel and AB reports, although there have been few exceptions to this institutional feature of the GATT/WTO dispute settlement system. Under the GATT and today under the WTO, retrospective remedies have existed, although exceptionally. Indeed, regarding the GATT experience, as Hudec clearly showed, there was a particular period of time from the beginning of the 1980s to the beginning of the 1990s during which GATT panels rendered reports involving retrospective remedies, and there was a specific occasion, New Zealand- Imports of Electrical Transformers from Finland when the losing party effectively paid a refund (New Zealand - Imports of Electrical Transformers from Finland, GATT, BISD, 32 nd Supp. 55-70 (1986)). In the other six cases related to anti-dumping and countervailing duties investigations ordering refunds, two panel reports were adopted, and the remaining four were not, due to the refund order. These panel reports were Canada—Countervailing Duty on Boneless Manufactured Beef GATT Document SCM/85 (Oct. 13, 1987), United States—Antidumping Duties on Stainless Seamless Pipes and Tubes from Sweden, GATT Document ADP/47 (Aug. 20, 1990), United States—Antidumping Duties on Gray Portland Cement and 313 with the implementation put in place by the respondent, it can request the DSB to establish a compliance panel that will determine whether the measures adopted to comply with the recommendations and rulings of the DSB are in conformity with the covered agreements. If the compliance panel finds that the implementing measure does not conform with the covered agreements,794 the complainant Member may negotiate compensation or ask the DSB authorization to suspend concessions, which must be equivalent to the level of nullification and impairment. If the reluctant implementing
Member disagrees with the level of nullification, it can ask the DSB to appoint an arbitrator to calculate such level, whose decision cannot be appealed and will be binding upon parties. Once the level is determined, the complainant Member can proceed to suspend concessions as a temporary tool to induce compliance with the recommendations and rulings of the DSB in the case in question.797
Cement Clinker from Mexico, and European Communities—Antidumping Duties on Audio Tapes in Cassettes Originating in Japan, GATT Document ADP/136 (April 28, 1995). See Robert E. Hudec, "Broadening the Scope of Remedies in WTO Dispute Settlement" at 9, available at http//www.worldtradelaw.net/articles/hudecremedies.pdf. at 18. The door of retrospective remedies was already open within the WTO. The complaining panel in Australia— Subsidies Provided to Producers and Exporters of Automotive Leather took the first step towards recognizing the first exception to the well-established tenet of the WTO of providing only prospective remedies by ordering Australia to recall the full amount of a one-time subsidy paid to a private company. See Australia—Subsidies Provided to Producers and Exporters of Automotive Leather - Recourse to Article 21.5 of the DSU by the United States (2000), WTO Doc. WT/DS126/RW (Article 21.5 Panel Report), online: WTO
In addition to suspension of concessions as the tool to induce compliance, the DSU also establishes peer pressure aimed at the same goal. In this sense, Article 21.6 of the DSU establishes that the DSB will keep disputes on the agenda of its meetings until they are resolved.
III.3 The Operation of the Appellate Body as an Autonomous System
Having described the history of the GATT dispute settlement mechanism, its evolution to the WTO dispute settlement system and the different stages that comprise the latter, this thesis proceeds to demonstrate why the Appellate Body has operated in ways similar to autonomous systems. To this end, the thesis will assess each of the features of autonomous systems described in Part II of Chapter I, and will place particular emphasis on the
Appellate Body's limited autonomy to introduce transformations to the WTO dispute settlement system. When analysing this particular feature, this thesis will apply the general framework based on Luhmann's theory to prove the existence of the autonomy, how it has been exercised by the Appellate Body, as well as the dynamics of each self- transformation, in the sense that not all of them are at the same stage of development.
Some are almost fully developed, others are in the middle of the process, and others are in their early phases.
exporters affected by the retaliation to press their government to comply with the adopted reports of the case. 798 The above-mentioned stages are the most used in the normal operation of the WTO dispute settlement system. However, it is important to say that in addition to violation cases there may be non-violation cases, pursuant to GATT Article XXIII. 1(b). Under this course of action, complaining Members argue that respondents' measures that are WTO consistent are nonetheless nullifying and impairing their rights under the covered agreements. This type of dispute has become quite unusual today and the only case of the WTO era in which it was fully at issue was Japan - Measures Affecting Consumer Photographic Film and Paper. See Japan—Measures Affecting Consumer Photographic Film and Paper (1998), WTO Doc. WT/DS44/R 315
III.3.1. The Identity of the Appellate Body
The identity of the Appellate Body is dual: judicial and quasi-legislative in nature, as is
the case with the International Court of Justice and the U.S. Supreme Court, and it is for
the AB to determine which of its dual characters prevails in each decision.799 In addition,
the AB possesses an identity that distinct from other WTO organs.
III.3.1.1. The Judicial and Quasi-Legislative Identity of the Appellate Body
The judicial character of WTO panels and the AB is found in some provisions of the DSU,
particularly Article 19.2, which provides that "[i]n accordance with paragraph 2 of Article
3, in their findings and recommendations, the panel and the Appellate Body cannot add to
or diminish the rights and obligations provided in the covered agreements."800 Such judicial identity is highlighted by one AB Member, Sacerdoti, who affirms that "The
function entrusted to panels and the Appellate Body is, without any doubt, that of judging..."801
This thesis does not deal with the discussion of whether or not the AB has exceeded its authority by legislating from the bench, a discussion that may not be fruitful. See in this regard, McRae, "Treaty Interpretation", supra note 155, 360 at 362. However, what this thesis seeks is to show what the AB's identity is in order to illustrate that it has one and that therefore the AB satisfies this requirement for its operation as an autonomous system. 800 WTO Legal Texts, supra note 4 at 368. To some the WTO covered agreements does not strictly create rights but only obligations. Steve Charnovitz, "Internet roundtable. The Appellate Body's GSP decision" (2004) 3 World Trade Rev. 239 at 241. 801 Sacerdoti, "WTO Dispute Settlement", supra note 780 at 45. 316
There are also statements in which the Appellate Body would appear to portray itself as a mere dispute resolution mechanism, with no legislative power of even a minimum scale.
For instance, in its report in United States—Measures Affecting Imports of Woven-Wool
Shirts and Blouses from India the AB held that "[given] the explicit aim of dispute settlement that permeates the DSU, we do not consider that Article 3.2 of the DSU is meant to encourage either panels or the Appellate Body to 'make law' by clarifying existing provisions of the WTO Agreement outside the context of resolving a particular dispute".802
But in addition to the judicial character, the AB has a quasi-legislative identity. Indeed, there are significant differences between a judicial body vested with the power to resolve a single, discrete dispute between a reduced number of parties, as an arbitration tribunal, and the AB entrusted, as it is, with the duty to interpret a vast body of law - the WTO covered agreements - for a large community and possessing compulsory jurisdiction.803 In fact, Article 3.2 of the DSU establishes that the Dispute Settlement System
The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that ... it serves to clarify the existing provisions of [the covered] agreements in accordance with customary rules of interpretation of public international law.804
United States—Measures Affecting Imports of Woven-Wool Shirts and Blouses from India (1997), WTO Doc. WT/DS33/AB/R at para. VI. (Appellate Body Report), online: WTO
Given the pre-eminent place that the AB has within the dispute settlement system, the identity of the AB goes well beyond resolving single disputes, and has quasi-legislative character, as one of its members, Georgio Sacerdoti, recalls when he says:
[T]he aim [of the WTO Dispute Settlement System] went beyond that of ensuring the resolution of a few occasional disputes; it became the goal of safeguarding 'a central element in providing security and predictability to the multilateral trading system'(Article 3.2 of the DSU) .. .805
In fact, it is very hard to deny the fact that AB reports shape WTO Members understanding of their rights and obligations under the covered agreements and therefore such reports shape Members' future behaviour. Sacerdoti, again, makes the point by saying that "any decision can affect the interpretation and application of those agreements in respect of all members ..." Likewise, Members so recognize in DSB meeting in which they refer to the guidance the reports at issue offer to their future behaviour.807
Moreover, AB reports may have a significant influence on ongoing or future negotiations, which shows that the impact of such reports goes well beyond the specific parties in question.808
However, it is important to state that while the functions vested on the Appellate Body are specified by the DSU, it is the Appellate Body itself which determines in each particular
805 Sacerdoti, "WTO Dispute Settlement", supra note 780 at 36. 806 Ibid, at 45. 807 See ibid, at 49. 808 The Chairman of the agricultural negotiations in the Doha Round stated before the Appellate Body rendered its report in United States—Subsidies on Upland Cotton that discussions regarding a specific topic should wait until the report were issues "because you wouldn't know how to begin the discussion in terms of knowing where the real baselines were going to be." WTO, Tenth Anniversary, supra note 781 at 17. See also in this regard, Ernst-Ulrich Petersman, "Strategic Use of WTO Dispute Settlement Proceedings for Advancing WTO Negotiations on Agriculture" in Ernst-Ulrich Petersmann & James Harrison, eds., Reforming the World Trading System. Legitimacy, Efficiency, and Democratic Governance (Oxford: Oxford University Press, 2005) 127. 318 case the degree of judicial or quasi-legislative nature of its decision. It is, in other words, the Appellate Body which at the end determines how to perform its functions and which sets its own identity. Sometimes, the identity may be strictly judicial in the sense that the
Appellate Body explicitly circumscribes the binding effects of its reports to the parties at issue, as it did in its report in Japan—Taxes on Alcoholic Beverages. There the Appellate
Body held that reports "are not binding, except with respect to resolving the particular dispute between the parties to that dispute."809 In other occasions, the Appellate Body highlights its judicial character by limiting its findings and conclusions strictly to the particular facts of the case and not to analogous ones. For instance, in its report in Chile—
Price Band System and Safeguard Measures Relating to Certain Agricultural Products, the Appellate Body assigned to itself a strict judicial identity, by denying its rulings any possibility of being extended to other similar cases. The Appellate Body stated:
We emphasize that we have been asked, in this appeal, to examine the measure before us—Chile's price band system—for its consistency with certain of Chile's WTO obligations. We have not been asked to examine any other measure of any other WTO Member. Therefore, we need not, and do not, offer any view on the consistency with WTO obligations of price band systems in general, or the consistency with WTO obligations of any specific price band system that may be applied by any other Member. 81°
However, in other events, the AB highlights that its reports may have a broader impact beyond the specific disputes that originated. It held in US - Shrimp (Article 21.5 -
Malaysia):
The Panel had, necessarily, to consider our views on this subject, as we had overruled certain aspects of the findings of the original panel on this issue and,
Japan - Alcoholic Beverages II AB Report, supra note 122 at § E. 81 Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (2002), WTO Doc. WT/DS207/AB/R at para. 203 (WTO Appellate Body Report), online: WTO
more important, had provided interpretative guidance for future panels, such as the Panel in this case.
The message of this statement of the AB regarding the interpretative guidance provided by a previous report, although referring to panels, can be heard by Members too because the covered agreements are assessed in light of the interpretation made by the Appellate Body in order to determine the scope of Members' rights and obligations.812
In sum, the Appellate Body has an identity broadly defined by the DSU both in Articles
3.2 and 19.2 of the DSU, but at the end it is the Appellate Body itself which can sometime determine whether in a case or in general it acts more like a strict judicial, almost arbitral, tribunal, or whether it seeks to establish by way of its interpretation broad or quasi- legislative effects to its rulings.813
United States—Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 of the DSU by Malaysia (2001), WTO Doc. WT7DS58/AB/RW at para. 107 (Appellate Body Report), online: WTO
III.3.1.2. The Distinctiveness of the Appellate Body's Dual Identity
The functions associated with the dual identity of the AB performs within the WTO are distinct from those of other WTO institutions. The judicial identity, although shared with
WTO ad-hoc panels, is distinct in the sense that the AB is at the top of the judicial hierarchy of the WTO. The quasi-legislative identity is also distinct in the sense that it legally differs from the legislative identity of WTO political organs, in particular the
Ministerial Conference and the General Council, which possess the function of adopting interpretations of the covered agreements binding on all Members pursuant to Article IX of the WTO Agreement.
The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. In the case of an interpretation of a Multilateral Trade Agreement in Annex I, they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. The decision to adopt an interpretation shall be taken by three-fourths majority of the Members. This paragraph shall not be used in a manner that would undermine the amendment 814- provisions in Article X.
The most significant difference between the quasi-legislative function of the AB and the legislative one of the Ministerial Conference or the General Council lies in the fact that legally only Ministerial Conference or General Council's interpretations are binding on all
WTO Members. However, in reality, the legislative organs of the WTO, be they the
Ministerial Conference or the General Council, or the WTO Membership acting as such to
WT7DS217/AB/R, WT/DS234/AB/R at paras. 213 - 15 (Appellate Body Report), online: WTO
o i c the agreement on new treaty law. So, for practical purposes, the organ empowered with the function of declaring with the highest authority the scope of the content of the WTO covered agreements is the AB.816 So, in this sense, the operation of the AB as a quasi- legislator is not shared with any other WTO political body.817
III.3.2. The Self-Observation of the Appellate Body1
If there is a court for which self-observation is virtually inescapable it is the Appellate
Body, since it is a newly created institution within a dispute settlement system which was significantly transformed from the system that preceded it. Contrary to the International
Court of Justice, for instance, which could draw on the past prestige of its predecessor the
Permanent Court of International Justice, the Appellate Body had no institutional support other than the support it built for itself. A founding member of the Appellate Body,
The consensus rule is defined in Article IX. 1 and its footnote. Article IX provides as follows. The WTO shall continue the practice of decision-making by consensus followed under the GATT 1947... Ibid, at 8. Footnote 1 sets forth: The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision. Ibid. 816 Obviously, this is not to say that AB reports equal treaty provisions agreed by WTO Members. 817 See Clauss Dieter-Ehlermann & Lothar Ehring, "Decision-Making in the World Trade Organization. Is the Consensus Practice of the World Trade Organization Adequate for Making, Revising and Implementing Rules on International Trade?" (2005) 8 J of IntT Econ. L. 51 [Ehlermann & Ehring, "Decision-Making"]; and Clauss-Dieter Ehlermann, "Tensions between the dispute settlement process and the diplomatic and treaty-making activities of the WTO" (2002) 1 World Trade Rev. 301 [Ehlermann, "Tensions"]. 818 It was shown in Part 1.1.2 that self-observation by autonomous systems is intertwined with observation of their external environment and has a direct impact on how systems define their particular identity. This section, as has been the case with the assessment of self-observation by the U.S. Supreme Court and the ICJ, will focus only on how the Appellate Body looks at the impact that its decisins may have on itself and on the 322
Clauss-Dieter Ehlermann, recognized this fact, and the underlying self-observation that the Appellate Body had to undertake.
[F]rom the very beginning, every one of the seven Appellate Body members was conscious and determined to contribute to the building of a new institution. Every one of us wanted to contribute to the strength and authority of this new institution... The second factor is closely linked to the first. We were determined to contribute to the building of a new independent institution ...
Self-observation is an inescapable feature of the operation of the Appellate Body in the sense that it has to be extremely careful regarding how to perform its functions. First of all, the WTO dispute settlement system has compulsory jurisdiction, which implies that access to it is easy and broad. Therefore, a State unsatisfied with another Member's measure may well decide to trigger the operation of the dispute settlement system when its legal position means it has a good chance of prevailing in the dispute.
This is one of the reasons why members of the Appellate Body have said to have adopted a cautious approach to interpretation of the covered agreements, marked by a painstaking use of the textual and contextual method of interpretation. Sacerdoti points out:
[T]he cautious approach of the Appellate Body, as well as its reluctance to engage in innovative or teleological interpretations, may be partially explained by the compulsory character of its jurisdiction and its exclusivity. ...
[T]he more binding the ex ante jurisdiction, the more justified appears to be the caution and the self-restraint of the judicial body in the use of the different criteria of interpretation of the obligations undertaken by members. .. .82°
WTO dispute settlement system. A detailed assessment of how the AB examines its external environment is provided below in Parts III.3.4.2 and III.3.5.3.1.2 of this chapter. ®19 Clauss-Dieter Ehlermann, "Reflections on the Appellate Body of the WTO", (2003) 6 J. of Int'l Econ. L. 695, at 695 [Ehlermann, "Reflections"]. Likewise, Steger points out that the AB "[h]ad to develop, through its first cases, its own credibility and legitimacy as an international tribunal." Debra P. Steger, "The Challenges to the Legitimacy of the WTO" in Charnovitz et al, supra note 767, 202 at 212 [Steger, "Challenges"]. See also James Bacchus, Trade and Freedom (London: Cameron May, 2004) at 78-79, attributing this self-observation to Ehlermann's initiative [Bacchus, Trade and Freedom]. 323
But the choice of this method of interpretation has another perspective related to self- observation. The method was regarded as the one that could enhance the institutional reputation of the AB among WTO Membership. Ehlermann makes this link between the selection of the method of interpretation and the institutional reputation of the Appellate
Body by stating that "[t]he interpretative method, established and clearly announced by the Appellate Body, has had a legitimizing effect, and this from the very beginning of its activity."821
Finally, clear evidence of the AB self-observation was its decision to decide cases by collegiality as a way to enhance the institutional value of its jurisprudence through its consistency and coherence. According to Steger:
[T]he Appellate Body required "collegiality" in its decision-making. This means that, although the three persons selected to hear a particular appeal would be responsible for deciding that case, all seven Members of the Appellate Body would convene in Geneva to discuss and provide guidance on each case. This principle of 'collegiality', which has been applied religiously by the Appellate Body in practice, has done much to ensure coherence and consistency of its decisions and rulings on issues of legal interpretation as well as on matters relating to practice and procedure.822
But self-observation is not only linked to the preservation of the institutional reputation of the Appellate Body, but also to the integrity of the jurisdiction of the WTO dispute settlement system as illustrated by the Appellate Body decision in Mexico—Tax Measures
820 Sacerdoti, "WTO Dispute Settlement", supra note 780 at 47. 821 Claus-Dieter Ehlermann, "Six Years on the Bench of the 'World Trade Court'. Some Personal Experiences as Member of the Appellate Body of the World Trade Organization" (2002) 36 J. World Trade 605 at 617 [Ehlermann, "Six Years"]. 822 Steger, Peace through Trade, supra note 773 at 303. See also Howse & Esserman, supra note 784 at 66. 324 on Soft Drinks and Other Beverages. In this case, the Appellate Body dealt with the dilemma of how to preserve the jurisdiction of the system in the face of a growing number of multilateral and regional international tribunals that might also have jurisdiction to adjudicate trade disputes between WTO Members who are parties to other international treaties.
The facts of the case stemmed from a broad dispute between Mexico and the United States in the context of the North American Free Trade Agreement (NAFTA), which had repercussions within the WTO. The dispute involved two types of products: 'First, ...
"soft drinks and syrups". Second, the sweeteners used in the preparation of such "soft drinks and syrups" and, particularly, three types of sweeteners: cane sugar, beet sugar and
[High-Fructose Corn Syrup] HFCS'.824 Mexico produced mostly cane sugar, and the
United States, beet sugar and HFCS. According to Mexico, in the NAFTA negotiations, it was agreed that Mexico could export its sugar surplus to United States under certain conditions. However, during the passage of NAFTA before the United States Congress, the United States sugar industry feared that such imports would depress sugar prices in the
United States market and pressed for more negotiations. Such negotiations resulted in a side letter in which the English version of the agreement put forward by the United States excluded the possibility of imports of Mexico's sugar surplus, while the Spanish version put forward by Mexico included such a possibility. Consequently, both States had different perceptions regarding what they had agreed on regarding the Mexican sugar surplus. As a result of this disagreement, for instance, in 2001, the United States assigned
Mexico - Taxes on Soft Drinks Appellate Body Report, supra note 106. 325 a quota for Mexican sugar of 105.788 MT, while Mexico claimed that it had the right to export more than 500.000 MT.825
This overall situation put the Mexican cane sugar industry at risk. In order to solve this problem, Mexico sought to have the dispute resolved before a NAFTA Chapter XX panel. However, the United States did not appoint its panellist, so no panel was established and the dispute remained at the stage of consultations between the States, without any improvement. In the face of this situation, and given the importance of the
898 cane sugar industry for Mexico's economy and society, the Mexican Congress took measures aimed at solving the problem for its industry. Mexico's declared purpose for adopting the measures was then 'to compel the United States to comply with its obligations and [t]o protect [Mexico's] own legal and commercial interests ....'829
According to the United States, the results of the measures were that the Mexican sweetener industry replaced HFCS with cane sugar, orders for HFCS were cancelled
824 Mexico—Tax Measures on Soft Drinks and Other Beverages (2005), WTO Doc. WT/DS/308/R at para. 2.6 (Panel Report), online: WTO
and there was an 8% increase in Mexican sugar prices. The United States claimed
before the WTO panel that the measures were inconsistent with several sentences of
GATT Article III. Mexico did not refute any of the Article III claims made by the
Oil
United States during panel proceedings. Instead, it asked the panel to decline jurisdiction in favour of a NAFTA Chapter XX Panel. For Mexico, although the WTO Q'iA
panel had jurisdiction to adjudicate the Mexico - Taxes on Soft Drinks dispute, the
NAFTA Chapter XX Panel would be in a better position to resolve the whole sweetener
dispute, because it could adjudicate both Mexico's claims and United States' GATT Q-3C Article III claims—as this Article was incorporated within NAFTA.
The systemic issue implicit in this defense was the relation between the jurisdiction of
WTO panels and that of other international tribunals, be they regional or multilateral.
Indeed, in a world order of growing international adjudication and of increasing number of
bilateral and regional agreements with their own dispute settlement systems, there was the
risk that these trends could end up limiting in reality, in the short, medium, and long run,
the scope of the WTO DSB jurisdiction to solve trade disputes between WTO Members
who are also party to any of these agreements.
In a finding undeniably marked by a clear identification of the risks to the dispute
settlement system posed by Mexico's defence, the Appellate Body held in its report in
1 See ibid, at para. 4.44. 2 See ibid, at Part IV.B.(b), Part IV.B.(c), and Part IV.B.(d).. 3 Ibid, at para. 4.115. 4 See ibid, at para. 7.104. 5 See ibid, at paras. 4.97-101. 327
Mexico - Taxes on Soft Drinks that once it has been established that a WTO panel had jurisdiction to adjudicate the claims of the complaining WTO Member, the Dispute
Settlement Understanding (DSU) prevented the WTO panel from declining such jurisdiction and from leaving the dispute in the hands of the other tribunal.
In order to ground this conclusion, the Appellate Body recognized that panels have the
power to examine their own jurisdiction. However, upholding the panel's finding, the
Appellate Body did not accept that such power would allow a WTO panel to decline jurisdiction in its entirety. For the AB, if a WTO panel were to decline jurisdiction, this
decision would imply an unauthorized alteration of the DSU. Quoting its report in India -
Patent Protection for Pharmaceutical and Agricultural Chemical Products, the Appellate
Body said the following regarding Mexico's claim in the Mexico - Taxes on Soft Drinks
dispute:
Although panels enjoy some discretion in establishing their own working procedures, this discretion does not extend to modifying the substantive provisions of the DSU. ... Nothing in the DSU gives a panel authority either to disregard or to modify ... explicit provisions of the DSU.
This strong argument was the starting point of the legal analysis of the Mexico - Taxes on
Soft Drinks report, and the remaining arguments were not less forceful. In particular, the
Appellate Body held that panels could not decline jurisdiction, because by virtue of
Article 7 of the DSU, they had to 'address the relevant provisions in any covered
For a detailed analysis of the panel and AB's report of this case, see Alberto Alvarez-Jimenez, "The WTO AB Report on Mexico - Soft Drinks and the Limits of the WTO Dispute Settlement System" (2006) 3 L.I.E.I. 319. 837 See Mexico - Taxes on Soft Drinks AB Report, supra note 106 at para. 46. 838 Ibid, at para. 46. 328 agreement or agreements cited by the parties to disputes' and that they had to make an objective assessment of the matter before them, as mandated by Article 11 of the DSU, which would be impossible if jurisdiction were declined.840
This being said, the conclusion that emerges from the AB report in Mexico - Taxes on Soft
Drinks is that, as was mentioned, once jurisdiction is validly established on a WTO panel, the existence of any other jurisdiction vested in another tribunal to resolve the same controversy lacks any importance, and the WTO panel has to adjudicate the dispute.
Certainly, this conclusion prevents other international tribunals from impairing the jurisdiction of the WTO dispute settlement system. As a consequence the WTO dispute settlement system was strengthened by the Mexico - Taxes on Soft Drinks AB report. It was a sound decision guided by self-observation by the Appellate Body, which addressed the systemic issue for the WTO dispute settlement system that Mexico's defence had raised.
In sum, the Appellate Body has carried out self-observation for a number of reasons: (i) to develop a policy aimed at building and enhancing its institutional reputation; (ii) and to protect in particular cases the integrity of the WTO dispute settlement system, against potential interference by other regional or bilateral international adjudicators.
8jy Mat para. 49. 840 See id. at para. 51. In Mexico - Taxes on Soft Drinks the Appellate Body left unresolved the question whether a WTO Panel can declare that it legally lacks jurisdiction to adjudicate a WTO Dispute, thereby leaving it in the hands of another international tribunal. In effect, the Appellate Body set the limits of its decision by restricting its findings to the particulars of the Mexico - Taxes on Soft Drinks case and held that "the issue before us in this appeal is not whether the Panel was legally precluded from ruling on the United 329
III.3.3. The Recursive Operation of the Appellate Body
One of the features of the operation of the Appellate Body is recursivity in the sense that it interprets and reinterprets not only the covered agreements but also its prior jurisprudence related to them. It is due to the existence of recursivity, that the Appellate Body is able to subtly change or adjust its jurisprudence. Examples may be readily available: (i) the rejection of the "aims and effects" test by the AB in Japan - Alcoholic Beverages II and in
Q/ii HA.0
EC - Bananas, and its later adoption in Chile - Alcoholic Beverages, and in EC -
Asbestos, according to Regan; (ii) the Appellate Body's changes in the context of
Article XX regarding the threshold for determining if a measure is related to the conservation of an exhaustible natural resource, (A low threshold was set in US -
Gasoline, which was later replaced by a stronger one in the Appellate Body report in US -
Shrimp);S44 (iii) regarding dispute settlement proceedings, in particular, the content of the complaining Member's duty to declare the "brief summary of the legal basis of the complaint," in its request for the establishment of the panel, as required by Article 6.2 of the DSU. In EC - Bananas, the Appellate Body held that a mere listing of the provisions alleged to have been violated was sufficient to meet the duty. Later, in its report in
States' claims that were before it, but, rather, whether the Panel could decline and should decline to exercise jurisdiction with respect to the United States' claims ..." Ibid, at para. 44. See also ibid, at para. 54. 841 See EC - Bananas AB Report, supra note 131. 842 See Chile—Taxes on Alcoholic Beverages (1999), WTO Doc. WT/DS87/AB/R (Appellate Body Report), online: WTO
Korea—Definite Safeguard Measure on Imports of Certain Dairy Products, the Appellate
Body stated that a mere listing of the provisions was not enough.
In conclusion, recursivity is a characteristic of the operation of the Appellate Body, which allows it to make adjustments, changes, and clarifications to its prior understanding of the
R4.7 provisions of the covered agreements.
III.3.4. The Observation of the External Environment by the Appellate Body
III.3.4.1. Observation of the External Environment by Panels during the GATT
During the GATT years, panels undertook a careful observation of how parties would react to the reports. It seems to be that the main goal was not to apply GATT law according to its text, but to put an end to the dispute. Weiler says crudely:
[I]n talking to Panellists of that era [GATT] one gets ... the impression, difficult to prove empirically, of an ethos which favoured 5:4 outcomes rather than 9:0. Crafting outcomes which would command the consent of both parties and thus be adoptable was the principal task of the Panellists. Custodianship over the Law of the GATT was far from both the minds, and, let us be frank, the ability of many Panellists ...
846 See Korea—Definite Safeguard Measure on Imports of Certain Dairy Products (2000), WTO Doc. WT/DS98/AB/R at para. 124 (Appellate Body Report), online: WTO
Observation of the external environment was also carried out in order to secure the adoption of the report, which led some panels even to change their legal reasoning afterwards in response to the debate that took place between panels and parties before the reports were submitted to the GATT Council and due to the fear of non-adoption of reports.849 In another occasion, the external environment was so delicate that a GATT panel was completely unable to reach a decision regarding the conformity of the measure at issue. Such a situation took place with regard to the Nicaragua and U.S. dispute that stemmed from the latter's decision to impose a trade embargo against the former.
From this brief account, it may be inferred that the diplomatic character of GATT panels compelled them to determine the solution to the dispute and its justification with a precise calculation of parties' reactions, and of the implications of the reports. Observation of the external environment was a key component of panels' decision-making process. Having
849 Plank states in this regard: [P]anels have become more sensitive to negative reactions as a result of the non-adoption of reports, because there are recent precedents for a panel re-examining before its report was submitted to the Council. In the case of Canada/U.S. imports of automotive spring assemblies, the panel did not modify its findings or conclusions; in the case of U.S./EC production aids on certain processed fruits it did so on one aspect (EC subsidies on raisins) of the complaint. Such swings do not speak highly of the confidence of the judges in their decision-making but it can be argued that it is better to re-open the case than to risk the non-adoption of a report because of a misunderstanding an error. It indicates, however, that panels have a special responsibility not to get themselves into such a situation, by making sure their understanding of the factual aspects and arguments of the complaint is as complete as possible. Plank, supra note 769 at 110. 850 Describing this decision Plank points out: [T]he panel found, given its strict mandate, the embargo to be neither consistent nor inconsistent with the GATT and further concluded that there was no decision the contracting parties could take under Article XXIII:2 which would re-establish Nicaragua's balance of GATT advantages in the light of the two way embargo. ... Ibid, at 113. It is important to contrast the different results obtained by the dispute between Nicaragua and the United States during the 1980s before the GATT and the ICJ. If to handle certain aspects of the overall dispute between these countries was a daunting task for the ICJ, which had to put at risk all its institutional reputation, it is clear that the international trade aspect of the quarrel was simply too much for the ad hoc GATT panel. 332 presented the significant influence that the external environment played for panels, this thesis turns to the examination of the way in which the Appellate Body carries out the observation of external actors.
III.3.4.2. The Appellate Body and the External Environment
Courts operating as autonomous systems, such as the United States Supreme Court and the
International Court of Justice carefully observe their external environments, and so does the Appellate Body. However, while the members of the other Courts have boldly expressed their view that judges must take into account the meta-juridical aspects of the disputes, while deciding on the law, similar statements by acting or former members of the
Appellate Body do not exist. Quite the opposite, they appear to deny any observation of the external environment, which for both panels and the Appellate Body is constituted of
WTO membership and world opinion. For instance, one of the founding members of the
AB, Julio Lacarte Muro, has said:
[I] don't think any one of us concerned himself as to what would be the public opinion repercussions of what our rulings could lead to. We just went ahead and ruled in terms of our own view, of our own earnest and hopefully very honest RS 1 approach and analysis of the subject matter that was submitted to us. ...
James Bacchus also claims that the Appellate Body does not observe the political dimensions of disputes before it. He points out:
Some have suggested that the Appellate Body should embrace expediency by making pragmatic, 'political decisions'. But the DSU says that an appeal 'shall be limited to issues of law', and the Members of the WTO have instructed the Members of the Appellate Body not once, but twice, in the WTO Rules of Conduct, to be both 'independent and impartial' when addressing issues of law
1 Lacarte, supra note 3 at 177. 333
in an appeal. It necessarily follows from this that the Appellate Body must never make political decisions, and I have never once heard even one national or other political consideration uttered by anyone in the deliberations of the Appellate Body.852
These considerations could eventually have some support in the Appellate Body's virtually tacit rejection of a political questions doctrine of international character, in the sense that certain disputes that would fall otherwise within the jurisdiction of the WTO dispute settlement system should be left entirely to Members for negotiations or to WTO political organs. The jurisprudence of the Appellate Body has, however, left little, if any room at all, for the existence of a doctrine of this type within the WTO. In effect, in its report in Mexico - Taxes on Soft: Drinks the AB declared that, on the basis of Article 3.3 of the DSU, Members had a broad right to resort to the WTO dispute settlement system in order to preserve their rights and obligations853 and that a refusal to adjudicate a WTO dispute would diminish this right.854 From this reasoning, the AB concluded clearly:
[T]he fact that a Member may initiate a WTO dispute whenever it considers that 'any benefits accruing to [that] Member are being impaired by measures taken by another Member' implies that that Member is entitled to a ruling by a WTO panel.855
852 James Bacchus, "Appellators", supra note 156 at 506. This statement and Lacarte Muro's should be interpreted as referring to the impartiality of the AB, and in this sense they are a correct expression of the operation of the Appellate Body. However, they could not be seen as indicating that it does not observe its external environment. 853 See Mexico - Taxes on Soft Drinks AB Report, supra note 106 at para. 52. 854 See ibid, at para. 53. 855 Ibid, at para. 52. This approach has left behind certain concerns that existed during the GATT years regarding the type of case that could go before panels, and that has some similarity with the perennial discussion regarding the definition of legal disputes under the Statute of the ICJ. Hudec describes three types of what were considered to be wrong cases during the GATT era. First, cases in which compliance was not an option due to the opposition of a strong domestic interest. See Robert Hudec, "GATT Dispute Settlement After the Tokyo Round: An Unfinished Business" (1980) 13 Cornell Int'l L.J. 145 at 159. [Hudec, "Tokyo"] Second, disputes arising from inoperative GATT rules, which have acquired such nature due to States' widespread violation which made compliance with them politically impossible. (See ibid, at 160) And the third type of wrong case was those which required the collection and analysis of extensive data, for which panels were not the ideal forum to cope with. (See ibid, at 163). In reality, one can say that the definition of wrong cases is made from the perspective of complainants, not from the perspective of the jurisdiction of the system. All three type disputes have taken place under the WTO, and the system has dealt with them without its jurisdiction being criticized. 334
So, once WTO panels and Appellate Body's jurisdiction is established, the complaining party has the right to obtain a ruling, and neither panels or the Appellate Body can invoke the political sensitivity of the case or the fact that, in principle, the issue should be left to
Members or to WTO political organs.
Despite these statements and apparent evidence supporting the Appellate Body's lack of observation of the external environment, as a matter of law the Appellate does carry out such observation. It is important to highlight that the DSU expressly imposes on Appellate
Body members the duty to observe their external environment, particularly that involved in the operation of the WTO political organs. In effect, Article 17.3 sets forth in pertinent part that "[a]ll persons serving on the Appellate Body ... shall stay abreast of dispute settlement activities and other relevant activities of the WTO ..."857 Although, it is clear
oco that the Appellate Body would do so in any case for practical reasons, the establishment of this duty says a lot regarding WTO Members' desire to ensure that the Appellate Body, despite all the independence with which it is vested, does not place itself in an ivory tower, but remains fully informed about trends and decisions adopted by WTO political
EC - Hormones {supra note 132) is an illustration of the first type of "wrong case" since the adopted reports of the case were never complied with; the Appellate Body well settled jurisprudence regarding the applicability of Article XIX of the GATT and its requirement of proofs of "unforeseen developments" for the imposition of safeguards is an example of the second type. And, finally, Japan - Film {supra note 798) exemplified the third "wrong" case. In none of them was it alleged that the WTO panels or the Appellate Body should have declined jurisdiction to leave the disputes in the hands of parties. 856 Bacchus suggests that the policy reasons for the rejection of the political questions doctrine by the Appellate Body is that sending such issues back to Members may lead to stalemate. See Bacchus, "Roundtable", supra note 2 at 186. [ 857 WTO Legal Texts, supra note 4 at 366. 858 It can be said that this is virtually an obvious proposition since such observation is an essential requirement for a nascent institutional such as the Appellate Body, operating within an Organization such as the WTO, which unleashed such a vast trade liberalization project after the conclusion of the Uruguay Round. 335
OCQ bodies.0-" This provision is duly complied with by Appellate Body members, and during the first years it was through the Appellate Body Secretariat that they were informed about developments in WTO political organs. The first Director of the Secretariat, Debra Steger attended on weekly basis and as an observer meetings convened by the WTO General
Director and other high-ranked WTO officials in which broad issues of the Organization were discussed.
Observation of the external environment is also a strategic must for the Appellate Body. In effect, the process of liberalization is an ongoing one in which negotiations are carried out to deepen and shape the process. Such negotiations also include, as it is the case of the
Doha Round, assessments of the operation of the dispute settlement system, and may imply the introduction of undesired changes from the Appellate Body's perspective. The
Appellate Body has then to rule regarding issues related to the system with a political calculation on avoiding either negotiations or the adoption of authoritative interpretations changing its operation or mandate in ways that it does not desire. As discussed before, the
AB's treatment of amicus curiae briefs evidences such observation of the external political actors.
Finally, with the immediate accessibility of Appellate Body reports worldwide through the
WTO website, it is also virtually impossible to ignore the impact of world public opinion on the institutional prestige of the Appellate Body. Although not all its reports are subject
859 Article 17.4 of the DSU could not be read as imposing on the Appellate Body also the duty to decide on the basis of dominant trends regarding issues before WTO political bodies, for which consensus has not emerged yet. The duty is to stay abreast of these deliberations, not to decide upon them. 860 Interview with Debra Steger held in Ottawa on August 2d 2007 [Steger, Interview]. 336 of extensive scrutiny by private actors, some involve issues related to values and interests beyond trade of great significance. One example of such a report is that in the US -
Shrimp dispute that dealt with environmental issues. A passage in the AB report in this case was clearly addressed to world opinion to explain the scope of the decision, and how it contained a clear endorsement of the incorporation of environmental concerns within the world trading system. It is not unlikely that in an effort to prevent world public opinion's criticism for having declared the US environmental measures inconsistent with its WTO obligations, the AB said the following.
[I]n this appeal [we] have not decided that the protection and preservation of the environment is of no significance to the Members of the WTO. Clearly it is. We have not decided that the sovereign nations that are Members of the WTO cannot adopt effective measures to protect endangered species, such as sea turtles. Certain they can and should ... [w]hat we have decided in this appeal is simply this: although the measure of the United States in dispute in this appeal serves an environmental objective that is recognized as legitimate under paragraph (g) of Article XX of the GATT 1994, this measure has been applied by the US in a manner which constitutes arbitrary and unjustifiable discrimination between Members of the WTO, contrary to the requirements of the chapeau of Article
In sum, although apparently the Appellate Body may say that it does not observe external actors, the reality is that, without affecting its impartiality, the Appellate does in effect observe it. First, because the DSU explicitly imposes some degree of observation with regard to the evolution of issues in WTO political organs; second, because the need of preserving its reputation and prestige compels the Appellate Body to carefully assess how far it can go regarding, for instance, the introduction of changes to the system in a way
A detailed analysis of this issue is provided below in Part III.3.5.4.1.1.3.1 of this chapter. 862 US - Shrimp AB Report, supra note 98 at para. 185. Environmental scholars received very well the AB report. See in this regard for instance, Jeffery Atik, "Two Hopeful Readings of Shrimp-Turtle (1998) 9 Y.B Int'l Env. L. 6 at 6; Thomas J. Schoenbaum, "The Decision in the Shrimp-Turtle Case" (1998) 9 Y.B Int'l 337 that prevents Members from triggering a "legislative" process aimed at overruling the
Appellate Body's position on the issue or at altering the structure of the WTO dispute settlement in a way that goes against the view of the Appellate Body;863 and third, because today Appellate Body reports are the subject of detailed scrutiny by non-State actors capable of mobilizing important segments of the world opinion, whose interpretations of reports do matter not only for domestic but also for international politics.864
III.3.5 The Appellate Body and Luhmann's Requirements for the Existence of Its Autonomy to Transform the WTO Dispute Settlement System
Part 1.2.6 of Chapter I drew on Luhmann's theory of autonomous systems in order to define the requirements that a court must have to be able to transform itself. The Appellate
Body meets these requirements since it is not only in a position to self-transform but also to introduce institutional changes to the WTO dispute settlement system as a whole.
Luhmann's requirements will then be assessed in regard to these two possibilities. To recall what it has been already said, the conditions for the existence of the autonomy to self-transform as applied to the AB are the following: (i) the AB can adopt decisions about itself and the WTO dispute settlement system; (ii) when faced with an issue of systemic consequences, the AB possesses the discretion to select whether to self-transform or not, and if so, it has at its disposal a set of possible alternatives to choose from in order to
Env. L. 37 at 38; and David A. Wirth, "Some Reflections on Turtles, Tuna, Dolphin, and Shrimp" (1998) 9 Y.BInt'lEnv. L. 40 at 41. 863 Finally, and completely unsurprising, is the fact that AB keeps also a close eye on academic and professional analyses of its rulings, since one of the functions of the AB Secretariat is to keep track of articles providing such assessments, some of which are circulated to AB members. Steger, Interview, supra note860. 864 This is not to say that the AB observes the external environment in order to find ways to please external actors be they States or Non-state actors. The point that is made here is that the Appellate Body carries out 338 dispose of the given institutional issue; and (iii) the Appellate Body steers the process of introducing transformation to itself and to the WTO dispute settlement system by being able to choose, through its collegial decision-making process, the extent, timing and rationale of each transformation, in light of its external environment.
III.3.5.1 Appellate Body's Possibility of Adopting Decisions About Itself and About the WTO Dispute Settlement System
The AB can adopt decisions about itself and, broadly speaking, about the WTO dispute settlement system in the sense that the AB is able to some extent to determine institutional issues such as who has access to the system, under which conditions, and what the boundaries of jurisdiction are, among other matters. First of all, the DSU is silent regarding so many systemic issues, such as burden of proof and due process. It was the
AB which had to develop rules to address them within the dispute settlement system.865
such observation in order to craft its rulings in the way it considers best, according to its own criterion, in light of such external environment. 865 The Appellate Body introduced the definition of burden of proof within the WTO dispute settlement system in its report in US - Wool Shirts and Blouses where it said: [W]e find it difficult ... to see how any system of judicial settlement could work if it incorporated the proposition that the mere assertion of a claim might amount to proof. It is, thus, hardly surprising that various international tribunals, including the International Court of Justice, have ... accepted and applied the rule that party who asserts a fact, whether the claimant or the respondent, is responsible for providing the proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common law and, in fact, most jurisdictions, that the burden of proof rests upon the party, whether complaining or defending, who asserts the affirmative of a particular claim or defence. If that party adduces evidence sufficient to raise a presumption that what is claimed is true, the burden then shifts to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption. US - Wool Shirts and Blouses AB Report, supra note 802 at 14 [footnotes omitted]. For a general description of how evidence is handled in WTO disputes to apply the above-mentioned rule, see Scott Anderson, "Administration of evidence in WTO dispute settlement proceedings" in Rufus Yerxa & Bruce Wilson, eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005) 177. Due process has been consecrated - for obvious reasons - as a key element of the WTO dispute settlement system. In its report in Australia—Measures Affecting Importation of Salmon the AB defined some of the features of the concept in the following terms: 339
But by no means are these systemic decisions isolated examples. The AB generally determines who has standing to bring a case before the Dispute Settlement Body. The AB extended the standing to bring cases before the DSB in its report in EC—Regime for the
Importation, Sale and Distribution of Bananas, where it recognized the United States' standing to act as a claimant in the case, despite the fact that it did not export a single banana to the European Communities. There, the Appellate Body rejected the notion that complaining Members must have a legal interest in order to lodge a complaint before the
DSB.866 This broad access to the system was also enhanced by the Appellate Body's decision again in EC - Bananas in which it allowed Members to be represented by private counsel and not only by government officials.
A fundamental tenet of due process is that a party be provided with an opportunity to respond to claims made against it. In this case, we believe that the Panel did accord Australia a proper opportunity to respond by allowing Australia to submit a third written submission. ... Australia—Measures Affecting Importation of Salmon (1998), WTO Doc. WT/DS18/AB/R at para. 278 (Appellate Body Report), online: WTO
Moreover, and as is the case with the United States Supreme Court and the International
Court of Justice, the Appellate Body takes decisions regarding the scope of the jurisdiction of the WTO dispute settlement system. It was mentioned before in Part III.3.2. of this
Chapter, how the Appellate Body protected in Mexico - Taxes on Soft Drinks the jurisdiction of the system from being eroded by allowing WTO panels to decline jurisdiction in favour of other regional or bilateral international tribunals. However, this has not been the only report in which the jurisdiction of the system has been at issue. As will be seen below in Part III.3.5.4.2.2 of this Chapter, the Appellate Body dealt with the jurisdiction of the system vis-a-vis WTO political organs in its reports in India -
Quantitative Restrictions and in Turkey - Textiles and expanded such jurisdiction.
But, in addition, the Appellate Body often adopts decisions regarding itself. Paramount among them is its capacity, as is the case of the ICJ, to adopt its Working Procedures, pursuant to Article 17.9 of the DSU, which determines how appeal proceedings must be conducted. Moreover, it is the Appellate Body which interprets the ambit of the appellate review provided for in Article 17.6, according to which "[t]he Appellate Body shall be limited to issues of law covered in the panel reports and legal interpretations developed by the panel."869 The broad or narrow interpretation of this provision leads to
Such capacity has been regarded by some authors as central to the significant role the Appellate Body has played within the WTO dispute settlement system. See Peters Van des Bossche, "From Afterthought to Centrepiece: The WTO Appellate Body and its Rise to Prominence in the World Trading System" in Sacerdoti et al, supra note 155, 289 at 303. See also James McCall Smith, "WTO dispute settlement: the Politics of Procedure in Appellate Body Rulings" (2003) 2 World Trade Review 65. For a complete assessment of the Appellate Body Working Procedures, see Victoria Donaldson & Alan Yanovich, "The Appellate Body's working procedures for appellate review" in Sacerdoti et al, supra note 155, 386. 8fi 5 wro Legal Texts, supra note 4 at 366. 341 different roles for the Appellate Body in relation to panels, and it is the Appellate Body alone which decides the extent of its role.
Finally, as part of the ability to take decisions about itself, the Appellate Body determined in its report in United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services that panels' obiter dictums cannot be appealed, and that therefore the
AB does not pronounce regarding such statements.
In sum, for the above- mentioned reasons it is possible to say that, in effect, the Appellate
Body is able to adopt decisions related to itself and to the WTO dispute settlement system, thereby satisfying the first requirement for the existence of the Appellate Body's limited autonomy to transform the system.
870 For instance, in its report in EC - Hormones the AB said the following: Under Article 17.6 of the DSU, appellate review is limited to appeals on questions of law covered in a panel report and legal interpretations developed by the panel. Findings of fact, as distinguished from legal interpretations or legal conclusions, by a panel are, in principle, not subject to review by the Appellate Body. The determination of whether or not a certain event did occur in time and space is typically a question of fact .... Determination of the credibility and weight properly to be ascribed to (that is, the appreciation of) a given piece of evidence is part and parcel of the fact finding process and is, in principle, left to the discretion of a panel as the trier of facts. The consistency or inconsistency of a given fact or set of facts with the requirements of a given treaty provision is, however, a legal characterization issue. ... EC - Hormones AB Report, supra note 132 at para. 132. For an evaluation of the scope of appeal review within the WTO dispute settlement system, see Claus-Dieter Ehlermann & Nickolas Lockhart, "Standard of Review in WTO Law" (2004) 7 J. of Int'l Econ. L. 491; Matthias Oesch, "Standards of review in WTO panel proceedings" in Yerxa & Wilson, supra note 865, 161. 871 The AB declared: We disagree with the participants' characterization of the Panel's statement on 'practice', in paragraph 6.197 of the Panel Report, as a 'finding' of the Panel.871 The Panel itself acknowledged that, in any case, Antigua was not challenging a practice, as such. In this light, the Panel's statement on 'practice', in our view, was a mere obiter dictum, and we need not rule on it. 342
III.3.5.2 The Appellate Body Has a Menu of Alternatives to Choose From When Deciding to Self-Transform or Transform the WTO Dispute Settlement System
The application of Luhmann's theory to courts led in Part 1.2.6.1.2. of Chapter I to posit as a second requirement for the existence of autonomy to self-transform that courts be able to select their self-transformation from a set of plausible alternatives offered by the applicable law and jurisprudence of the case at hand.
It was argued that the existence of such set of alternatives is offered by the indeterminacy of the applicable law. Such indeterminacy also exists regarding the WTO covered agreements. In effect, WTO law is far from being a clear and unambiguous legal regime since the negotiating process involved a significant number of States, dealing with new and complex issues, and ambiguity was the only tool to reach an agreement in some cases.
Such indeterminacy has been noted by those who have directly interpreted WTO law. A telling statement in this regard was made by Julio Lacarte, one of the founding members of the Appellate Body, in the following terms:
[A]s you all are well aware, since you all are participants in this deadly art of drafting, the negotiations will sometimes fall back on what's called 'constructive vagueness, constructive ambiguity' to pull together different positions when you have to come to a final deal at the end of the conference, and you have to do something, and you know your text is not very clear, but it's the only text that everybody would approve, so in the end you take it. But then, that is that kind of text that the Appellate Body eventually has to interpret. ...873
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (2005), WTO Doc. WT/DS285/AB/R at para. 131 (Appellate Body Report), online: WTO
The indeterminacy of WTO law allows both WTO panels and the AB to have certain degree of flexibility and discretion expressed in the form of various alternatives to dispose of cases before them. The flexibility in interpretation is also recognized by the first
Director of the AB Secretariat, Debra Steger, who says:
[N]ot all WTO rules are models of textual clarity. Indeed, some of the language in the 500 pages or so of the text of the WTO Agreements is deliberately vague, reflecting a lack of agreement among the negotiators ... Such vagueness is not necessarily a problem: it may leave room for a rule to evolve flexibly through interpretation and application by a process of clarification recognized as legitimate by those to whom the rules are addressed. .. ,875
The existence of various reasonable interpretations of the covered agreements is explicitly contemplated regarding the Anti-Dumping Agreement. Article 17.6(H) provides:
In examining the matter referred to in paragraph 5: ... The panel shall interpret the relevant provisions of the Agreement in accordance with customary rules of interpretation of public international law. Where the panel finds that the relevant provision of the Agreement admits of more that one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.876
Lacarte, supra note 3, at 177. 874 For instance, Reif & Eckrert posit that the text of such important provision as GATT Article III is so vague that it leaves panels and the AB to broad latitude to determine the scope of the obligations not to discriminate between domestic and foreign products. See Timothy M. Reif & Julie Eckert, "Courage You Can't Understand: How to Achieve the Right Balance Between Shaping and Policing Commerce in Disputes Before the World Trade Organization" (2004) 42 Colum. J. Transnat'l L. 657 at 673. See also McRae, "Appellate Jurisdiction", supra note 791 at 106. The AB recognized such discretion when it said in its report in European Communities—Measures Affecting Asbestos and Asbestos-Containing Products that the examination of likeness under Article III.4 includes and "element of individual, discretionary judgment". (European Communities—Measures Affecting Asbestos and Asbestos-Containing Products (2001), WTO Doc. WT/DS135/AB/R at para. 101 (Appellate Body Report), online: WTO
But the possibility of the existence of a set of plausible alternatives at the disposal of the
Appellate Body when confronted with an issue that has institutional implications for the
WTO dispute settlement system is not only associated with the indeterminacy of the covered agreements, but also with the fact that the DSU left unresolved many systemic subject-matters. In effect, while the DSU sets the bases of the WTO dispute settlement system, it leaves the Appellate Body certain discretion to give the system a more detailed content. Such freedom is implicitly recognized by Ehlerman, who sustains that
[C]ompared with substantive rights and obligations, procedural rights and obligations of WTO Members related to the dispute settlement procedure are less precisely defined. This lack of precision is hardly surprising in view of the historical evolution of the dispute settlement system. In interpreting the DSU, the AB had therefore to face more ambiguities and 'gaps' than in other areas of WTO law...877
Concluding, the undeniable indeterminacy of the WTO covered agreements coupled with existence of ambiguities and gaps in the DSU offer the Appellate Body a set of plausible alternatives in those situations in which an issue of institutional repercussions for the
WTO dispute settlement system is in question. It is from this set of options that the
Appellate Body selects the specific self-transformation to be introduced to the system when deciding the given appeal at issue.
Ehlermann, "Reflections", supra note 819 at 701. For an analysis of some of those areas of WTO dispute settlement the DSU left unclarified, see Daniel Brinza, "DSU reform: if it is not broken - improve it?" in Sacerdoti et al., supra note 155, 246. To Steinberg, the AB has been willing to engage in gap filling. See Steinberg, "WTO Judicial Lawmaking", supra note 812 at 260. Although this willingness has been criticized by some commentators, gap filling is a widely accepted tool in a much less institutionalized international adjudication system such as international commercial arbitration, where the arbitrators' power to fill procedural silences left by parties possesses considerable currency. For instance, Piero Bernardini, Vice-President of ICC Court of International Arbitration, expresses that "all institutional rules of arbitration recognize the arbitrators' powers, in the parties' silence, to regulate the proceedings in the most appropriate manner ... Such power is very large, the 345
III.3.5.3 The Appellate Body' Steering of the Exercise of Its Limited Autonomy to Transform the WTO Dispute Settlement System
From the application of Luhmann's theory it was established that an autonomous court steers its self-transformations when, through the performance of its collegial decision making process, it can select the timing, scope and justification of any self-introduced institutional modification. To illustrate that the Appellate Body also satisfies this third, and last requirement, this section will be divided into two parts. The first part will describe the two collegial decision-making processes of the AB, namely the one that takes place at the Division level and the so-called exchange of views. This part will also demonstrate how AB members debate about the external environment involved in the given decision. The second subpart will display on the basis of concrete decisions how the AB has been able to steer the exercise of its self-transformative autonomy by determining the extent of and the opportunity and justifications for the institutional changes it has introduced to itself and to the WTO dispute settlement system. Once the thesis has proved that the AB satisfies this third requirement, the thesis proceeds with a discussion of the major transformations incorporated to the system by the AB, and of the one that the AB decided not to make. Finally, the thesis will present the major limitations on the self-transformative autonomy of the AB.
only practical limitation imposed by such rules and by applicable international conventions being respect for 346
III.3.5.3.1 Two Level Collegia! Decision-Making Process of the Appellate Body
There is a significant gap in the scholarship regarding the AB in the sense that its collegial decision-making process is well known in its formal elements, but it is ignored to a significant extent in its informal features, since AB members have been cautious in offering a complete description of how they take decisions. There are no available minutes of deliberations, as is the case of the U.S. Supreme Court, so material of this nature cannot be used to offer a description of AB's collegial deliberations.
This section will attempt to contribute to fill in such gap, not only by using the theoretical elements of collegial decision-making presented in Part 1.2.6.1.3 of Chapter I, but also by making inferences on the basis of the comparative assessment of the previous discussion of the deliberations of the U.S. Supreme Court and the ICJ. Finally, the theoretical and comparative analysis will be complemented with the insight provided by interviews this author had with three Directors of the AB Secretariat. In light of the nature of the evidence available, the conclusions must be considered preliminary and tentative.
To begin with, the AB operates by Divisions of three members randomly selected who hear the case. A Division has the responsibility for conducting the appellate process and for drafting and rendering the AB report in relation to a case. While pursuant to the AB
Working Procedures, each Division can adopt a decision autonomously, from the beginning of the functioning of the AB its original members decided that they would decide on the basis of collegiality, which means that all seven AB members directly due process ..." Piero Bernardini, "The Role of the International Arbitrator" (2004) 20 Arb. Int'l 113 at 117. 347
Q"7Q participate in the deliberations of each appeal. Article 4 of the Working Procedures for
Appellate Review provides:
Collegiality (1) To ensure consistency and coherence in decision-making, and to draw on the individual and collective expertise of the Members, the Members shall convene on a regular basis to discuss matters of policy, practice and procedure. (2) The Members shall stay abreast of dispute settlement activities and other relevant activities of the WTO and, in particular, each Member shall receive all documents filed in an appeal.
(3) In accordance with the objectives set out in paragraph 1, the division responsible for deciding each appeal shall exchange views with the other Members before the division finalizes the appellate report for circulation to the WTO Members. This paragraph is subject to paragraphs 2 and 3 of Rule 11.
(4) Nothing in these Rules shall be interpreted as interfering with a division's full authority and freedofreedomi to hear and decide an appeal assigned to it in accordancrdance with paragraph 1 of Article 17 of the DSU.87
Some AB members have provided descriptions of the operation of collegiality in the AB's decision-making process. In this regard, James Bacchus says that collegiality means that
"[t]here is an exchange of views in every case; every member of the AB participates in this exchange of views. Every member prepares for every case." Delving into the internal operation of collegiality he points out:
[I]n every appeal, each of us brings with us to our table preparations for provisional positions in which we try to take into account all the necessary questions about all the pending issues. Then, together, through mutual support, and through considerable mutual criticism, we try to find the right reasons and the right answers...
878 The intention behind this determination may well coincide with the U.S. Justice Brandeis's statement: "[I]n most matters it is more important that the applicable rule of law be settled than that it be settled right ..." As quoted by Ginsburg. Ruth Bader Ginsburg, "Remarks on Writing Separately" (1990) 65 Wash. L. Rev. 133 at 144-45. 879 Working Procedures for Appellate Review, WTO Doc. WT/AB/WP/5. 4 January 2005. 880 Bacchus, "Roundtable", supra note 2 at 182. 348
As we deliberate ... [t]he pages of the parties' submissions on appeal are scrutinized and analyzed. The arguments made by the parties at the oral hearing in the appeal are recalled and recited. The nuances of past appeals are revisited. The implications for future appeals are considered. ... And, slowly, a 001 'consensus' emerges.
Julio Lacarte, for his part has said that "[a]t the Appellate Body, we came down to this formula of consensus and the explanation, the secret for that, is unending toil, unending patience, unending tolerance, and unending inventiveness to work out the right formula within the mandate that one has..."882 An official publication of the WTO analysing the first ten years of operation of the Dispute Settlement System describes the level of preparation Appellate Body members must have to participate in the exchange of views.
[I]f [the given member] is not able to discuss that matter at great length, in great detail with the other members of the division, he looks very bad indeed, because the depth of the analysis that is carried out in the heart of the Appellate Body is so extreme that you cannot participate in an exchange of views in the application of the concept of collegiality unless you know exactly what you are talking about....883
In sum, what the Working Procedures establish is a two level collegial decision-making process. The first takes place within Division, the second during the exchange of views.
However, it is important to clarify the sequence of the operation of the two levels is the following: the collegial decision-making process at the Division level takes place before the hearing with the parties as evidenced by the preparation the Division makes for such a hearing in the sense that the members of the Division, with the help of the Appellate Body
Secretariat, prepares the questions to be asked to parties, among other activities.884 After
881 Bacchus, Trade and Freedom, supra note 819 at 46,48. 882 Lacarte, supra note 3 at 183. 883 WTO, Tenth Anniversary, supra note 781 at 10. 884 See Valerie Hughes, "Special challenges at the appellate stage: a case study" in Yerxa & Wilson, supra note 865, 80 at 82. 349 the hearing, the Division meets with the other 4 members and the Appellate Body carries out the second level of collegial decision-making: the exchange of views. Subsequently, the Division meets again, decides the case, drafts the report and renders it on behalf of the
Appellate Body.
This thesis will proceed by analyzing the collegial decision-making process of the AB by describing (i) the exchange of views, (ii) the impact it may have on the subsequent deliberation that takes place within the Division in charge of the appeal, and (iii) how AB members debate about their external environment when they carry out such process.
III.3.5.3.1.1 The Exchange of Views
III.3.5.3.1.1.1 Analysis of the Collegial Decision-Making Process that Takes Place during Appellate Body's Exchange of Views
The exchange of views constitutes a very fine collegial tool able to reach quite valuable results. Ehlermann so describes the results obtained by the exchange of views stage of the collective decision-making process of the Appellate Body:
The system of 'exchange of views' among all members has proved to be of enormous benefit to the work of the Appellate Body. As intended, the exchanges have permitted divisions to draw on the individual and collective expertise of all members. In addition, they have contributed greatly to consistency and coherence of decision-making. ...
Collegiality means only exchange of views. It does not mean that all seven Appellate
Body members actually decide the case. The case is decided by the given Division, as
Matsushita points out: "[t]he decision of the division is not made en banc by the whole
885 Ehlermann, "Six Years", supra note 821 at 612-13. 350
Appellate Body but by a division." Moreover, members who do not make up part of it can neither dissent nor render separate opinions. This also means that Division members do not have to accommodate non-members' arguments during the exchange of views. Moreover, according to Ms. Hughes, in the event of disagreement among any of the other four members which is not resolved during the exchange of views, those disagreeing usually leave in the hands of the Division the final determination.888
Matsushita also points out in this regard that "[t]he views of the other Appellate Body members constitute formal input which the division may or may not choose to accept."
However, this is not to say that the exchange of views may not sometimes involve intense bargaining among members. This is so for a number of reasons. The institutional need for coherence and consistency already mentioned as a paramount objective of the Appellate
Body, implies that a Division has compelling reasons to take into account the non- members views, since the latter will have to be coherent and consistent in future appeals with what the given Division said before. In other words, the jurisprudence of the AB must be seen as one, and not of the particular Divisions, which means that even though
AB members who are not part of the deciding Division have no right to vote on the
Mitsuo Matsushita, "Some Thoughts on the Appellate Body" in Macrory et al., supra note 785, 1389 at 1396 [Matsushita, "Thoughts"]. 887 This is why there will be neither more that one dissent nor will there be 4:3 Appellate Body decisions. 888 Interview with Valerie Hughes held in Ottawa on August 29, 2007 [Hughes, Interview]. 889 Matsushita, "Thoughts", supra note 886 at 1396. This is entirely logical since the Appellate Body works under tight deadlines and important time constraints, and simply cannot afford to always incur the bargaining costs of en banc decisions. Ehlermann highlights the link between strict Appellate Body' deadlines and decisions vested on Divisions. Today, the 'anomaly' of divisions composed of only three Appellate Body members appears to me to be one of these wise decisions of the authors of the DSU that should be maintained by all means. There seems to be a close connection between the decision to limit divisions to three Appellate Body members and the extremely short time limits prescribed for the appeal procedure. Ehlermann, "Six Years", supra note 821 at 611. 351 appeal, they may be considered to have in reality in some circumstances much more than the right to be heard by their colleagues.
The afore-mentioned analysis illustrates the exchange of views as it is usually carried out by the AB; however, there is a significant exception, wholly relevant for the purpose of the thesis: systemic issues raised in appeal by parties are decided by the AB en banc with full deliberation among all AB members.
III.3.5.3.1.1.1.1 Exchange of Views Regarding Novel Systemic Issues890
Regarding certain issues of paramount relevance for the WTO dispute settlement system that come for the first time before the AB the exchange of views may equate, for practical purposes, en banc decisions, in the sense that all Appellate Body members have a de facto right to vote the general policy orientation regarding such novel systemic issues. The underlying reason for the existence of this particular situation would be that those systemic issues will likely come before different Divisions of the Appellate Body on regular basis, so it is of significance importance to fix a completely unified course of action regarding them. The general policy orientation of the decision regarding the novel issue that will be applied to all subsequent cases should in practice be adopted once it carries the support of at least four members, and one could expect that bargaining among
Appellate Body members may well resemble that of the U.S. Supreme Court, in the sense
890 The label is Ms. Hughes's. Hughes, Interview, supra note 888. 891 This is not to say that the specific appeal would be decided by the whole Appellate Body. Although regarding novel systemic issues the general policy orientation is determined by the AB as a whole, it is the Division in charge of the appeal which applies the general policy orientation to the particularities of the case and decides it. 352 that there is a full negotiation among members regarding both the policy orientation as to the novel issues and the justification thereof. Regarding these determinations, the internal costs of operation of the AB are higher than in the exchange of views and are those associated with an en banc decision.
Concerning novel systemic issues the exchange of views has another important characteristic: it takes place early in appeal proceedings. In effect, the Division in charge of the appeal in which they have been raised usually consults with the other four members well in advance the hearing.892 Such determination certainly allows the AB members to have sufficient time to assess the novel procedural issue and to determine how to address it, without having the time pressure they face later in appeal proceedings during the exchange of views.
Examples of the process described above include EC - Asbestos in which the Appellate
Body decided to establish particular rules to deal with a potential flow of amicus curiae briefs. In that case the Division determined that it would set out the rules only after having fully debated the issue with the rest of the Appellate Body members. Certainly, regarding this systemic issue, in effect it was the Appellate Body en banc which took this decision.894
The point worth-highlighting is that novel systemic issues may indeed be shaped by the full Appellate Body members, although the concrete application in the appeal in question
Hughes, Interview, supra note 888. Steger, Interview, supra note 860. 353 is obviously left to the Division hearing it. So, one may say that any important decision related to a novel issue that has a significant bearing on the Appellate Body or on the
one WTO dispute settlement system is materially adopted by the Appellate Body en banc.
It is possible to summarize the whole collegial decision-making process of the AB in the following words: the process starts by deliberations of the Division in charge of the appeal to prepare for the hearing. Then, the exchange of views between the Division and the rest of the AB members occurs. It takes place only once, and does not imply that the full
Appellate Body de facto hears and decides the appeal, save in the very important case of novel systemic issues. In fact, the bargaining among members is not aimed at obtaining their votes or support, nor is the Division under a de facto obligation to accommodate non- members views in its report, but it has the discretion to choose what arguments will consider and what it will disregard. In this sense, the exchange of views and its consensus formula does not mean that the Appellate Body decided appeals en banc.
III.3.5.3.1.2. The External Environment as a Matter Members Debate About During the Appellate Body's Collegial Decision Making Process
It was posited in Part 1.2.1.6.1.3.4 of Chapter I that members of collegial courts may bargain not only about assessment of facts and law, but also about potential reactions by external actors to their potential rulings, or about the external actors' strategic behaviour that such rulings may produce, and about how to prevent such reactions and undesired strategic conduct. In other words, judges in collegial courts also bargain about the content
According to Steger, the decision to accept amicus curiae briefs was unanimous. Ibid. 354 of the regulatory dialogue that they want to carry out with the court's external environment.
Turning back to the AB, evidence of bargaining between its members regarding potential reactions and strategic behaviour by concerned external actors are provided in reports in which the Appellate Body has explicitly addressed such issues so as to prevent their occurrence; and in how the Appellate Body keeps a close eye on Members' reaction to its decisions.
As to interpretations aimed at preventing strategic behaviour by actors based on their interpretations of Appellate Body rulings, one of the strongest examples that show how the Appellate Body crafts its reports with an eye to preventing undesired strategic interpretations, is the Appellate Body's construction of the scope of the exceptions to the disciplines of GATT pursuant to the Chapeau of Article XX. Politically, Article XX serves an important purpose for WTO Members: it offers them justification for the adoption of protectionist WTO inconsistent measures that may also seek the achievement of important domestic interest other than trade. However, there is also the risk of impairing the effectiveness of the WTO covered agreements by adopting a broad construction of the exceptions provided for in Article XX that may lead its abuse by WTO
Members.
This is not certainly to say that for each and every novel procedural issue raised on appeal is decided by the full Appellate Body. 355
The Appellate Body has shown that it is aware of such a risk and has interpreted the scope of Article XX so as to prevent its abuse, while ensuring the availability of the provision.
Since its first report in US - Gasoline, the Appellate Body stated:
[I]t is important to underscore that the purpose and object of the introductory clause of Article XX is generally the prevention of 'abuse of the exceptions of [what was later to become] Article [XX]. This insight drawn from the drafting history of Article XX is a valuable one. The chapeau is animated but the principle that while the exceptions of Article XX may be invoked as a matter of legal right, they should not be so applied as to frustrate or defeat the legal obligations of the holder of the right under the substantive rules of the General Agreement. If those exceptions are not to be used or misused, the measures falling within the particular exceptions must be applied reasonably, with due regard both to the legal duties of the party claiming the exception and the legal right of the other parties concerned.896
This approach was further developed by the Appellate Body in US - Shrimp in which it created the concept of the balance of rights and obligations, as the guiding criterion to
interpret and apply the Chapeau of Article XX. In this report the Appellate Body held that
"a balance must be struck between the right of a Member to invoke an exception under
Article XX and the duty of the same Member to respect the treaty rights of the other
Members."897
The afore-mentioned passages illustrate how the Appellate Body's interpretation of the
Chapeau of Article XX does take into account the possibility of its abuse by Members, a
US - Gasoline AB Report, supra note 423 at 22 [footnotes omitted]. A similar argument was made regarding the Chapeau of Article XXIV of the GATS. See US - Gambling AB Report, supra note 871 at para. 339. 97 US - Shrimp AB Report, supra note 98 at para. 156. For an analysis of the concept of balancing rights and obligations in the interpretation of Article XX, see Gabriel Marceau, "Balance and coherence by the WTO Appellate Body: who could do better?" in Sacerdoti et al, supra note 155, 326 at 328-32. The balance of rights and obligations also applies in the case of the Chapeau of Article of the GATS. See US - Gambling AB Report, supra note 871 at paras. 306-07. 356 result that the Appellate Body clearly considers undesired because it undermines the rights of Members pursuant to the covered agreements.
Another situation in which the Appellate Body has interpreted the covered agreements so as to avoid the risk of Members' abuse or manipulation is the requirements Members must satisfy in order to declare in safeguard investigations that there are "increased imports" that are causing or threatening to cause serious injury to domestic producers of like goods.
The United States have assumed that to demonstrate the requirement of "increased exports" it suffices to compare the level of imports at the end of the period of investigation with a previous one. The Appellate Body rejected such interpretation given the risk of easy manipulation by Members in the selection of the point of comparisons with the aim of finding the increased imports. One sees clearly the Appellate Body's concern regarding the risk of abuse of safeguards by Members on the basis of flexible interpretations of the requirements to impose them.900
See, for instance, United States—Definitive Safeguard Measures on Imports of Certain Steel Products (2003), WTO Doc WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT7DS258/AB/R, WT7DS258/AB/R, WT7DS259/AB/R at para. 352 (Appellate Body Report), online: WTO
[A] determination of whether there is an increase in imports cannot, therefore, be made merely by comparing the end points of the period of investigation. Indeed, in cases where an examination does not demonstrate, for instance, a clear and uninterrupted upward trend in import volumes, a simple end-point-to-end-point analysis could easily be manipulated to lead to different results, depending on the choice of end points. A comparison could support either a finding of an increase or a decrease in import volumes simply by choosing different starting and ending points. For instance, if the starting point for the period of investigation were set at a time when import levels were particularly low, it would be more likely that an increase in import volumes could be demonstrated ... Ibid, at paras. 354-55.[italics added]. 357
These are two examples of the Appellate Body anticipating Members' reactions to its decisions and of crafting statements to address them so as to reduce the risk of misinterpretations or strategic undesired behaviour based on such interpretations. It also
suggests that the two level collegial decision making process of the Appellate Body
incorporates assessments of the external environment, and that the Appellate Body
specifically takes it into the account at the time of the writing of its reports.
But observation of the external environment is not only carried out by the Appellate Body during its two level collegial decision-making in order to anticipate undesirable Members'
strategic behaviour. In fact, such observation - which also illustrates the dialogue between the AB and the WTO Membership in which the Appellate Body is able to assess reactions to its rulings and to develop, adjust, rectify or deepen its jurisprudence - is explicitly carried out during the DSB meetings in which panel and Appellate Body reports are
adopted. The DSU expressly grants Members the right to express their views regarding the reports at issue, and such right is not limited to parties to the dispute in question.901 While
few scholars have paid much attention to this forum for the discussion of panels and the
Appellate Body, the latter does indeed consider it important. In effect, Sacerdoti, member
of the Appellate Body, highlights the importance of this discussion for both WTO
Members902 and the Appellate Body.
900 The AB stated that Members' authorities have to evaluate the trends in imports during the period of the safeguard investigation. See ibid, at para. 354. 901 Article 16.4, dealing with the adoption of panel reports by the DSB, establishes that "[t]his adoption procedure is without prejudice to the right of Members to express their views on a panel report." An almost identical language is included in Article 17.14 of the DSU with regard to the adoption of AB reports. 902 Despite the fact that the DSB adopts reports almost automatically, it does not mean that panels or the Appellate Body are deaf to the debates their reports engender, and might react to them in future cases. Members know this and clearly state it. For instance, in its 2002 Report to the U.S. Congress, the Secretary of Commerce said that the "The United States will continue to work to communicate the United States' 358
The discussions that take place in the DSB when reports are being adopted represent an important opportunity for members to express their views, both about the specific outcome of the dispute and about the general systemic questions of interpretation and implementation. Arts. 16.4 and 17.4 of the DSU expressly recognize this right. Thanks to this immediate feedback, a kind of 'dialogue over distance' is established between the judicial organs and members, although criticism expressed does not affect the 'automatic adoption' of the reports. ...
Sometimes the dialogue it is not precisely over distance, since the Appellate Body has made it sure it receives a detailed account of Members' reactions to its reports by having members of the Appellate Body Secretariat present in these DSB meetings. 904 However, this is not to say that the Appellate Body, as a strategic actor itself, takes any comment made by WTO Members at face value. Certainly, a DSB meeting is a stage in which both domestic and international politics take place, and Appellate Body members are well aware of that as evidenced by the following statement made by James Bacchus:
[I] do not agree with most of the criticisms that have been heard in DSB meetings about the Appellate Body relying too much on public international law. I think a lot of them are politically motivated back home, without saying more, and are obligatory and can be safely be considered as political speeches... °5
concern clearly to panels and the Appellate Body ... The tools available for these purposes include submissions to panels and the Appellate Body, comments on the proposed findings of panels, and discussions of any finding at the DSB." U.S. Secretary of Commerce, Executive Branch Strategy Regarding WTO Dispute Settlement Panels and Appellate Body. Report to the Congress Transmitted by the Secretary of Commerce. Dec. 30, 2002. Debra Steger also makes clear that not only the United States but WTO Members generally do exercise this right because, she says, "[i]t has become common place for WTO members who are not parties or third parties in a dispute to express their views in DSB meetings relating to that dispute." Steger, "Challenges", supra note 819 at 210. For a general comment regarding the possibility of DSB's debates influencing the Appellate Body, see Steve Charnovitz, "Judicial Independence in the World Trade Organization" in Laurence Boisson de Chazournes, Cesare Romano & Ruth MacKenzie eds., International Organizations and International Dispute Settlement: Trends and Prospects (New York: Transnational Publishers, 2002) 219 at 237 [Charnovitz, "Judicial Independence"]. 903 Sacerdoti, "WTO Dispute Settlement", supra note 780 at 47, n. 16. 904 For instance, during the first years, Debra Steger, attended all the DSB meeting with the aim of having a first hand knowledge of Members' reactions to AB reports, which she transmitted to Appellate Body. Steger, Interview, supra note 860. 905 Bacchus, "Roundtable", supra note 2 at 185. 359
It follows from the foregoing that the regulatory dialogue which was highlighted in
Chapter I between courts and their external environment is not a merely theoretical concept, but it exists in practice. The words of Giorgio Sacerdoti cannot be more conclusive in showing the existence of such dialogue and how it is taken into account during the collegial decision-making of the Appellate Body.
III.3.5.3.1.3 The Effects on AB Members of the Collegial Decision-Making Process of the Appellate Body
It is not surprising, given the outstanding professional and intellectual capacities of all
Appellate Body members so far, that the operation of the two level collegial decision
making process of the Appellate Body leads to changes in members' perspectives and that
such perspectives evolve during the process, as predicted by Maltzman, Spriggs, and
Wahlbeck. One of the original AB members, Julio Lacarte, so describes the impact of the
operation of the collegial decision-making process on his views:
At the Appellate Body, we came down to this formula of consensus ... As to the different origins of the members of the original Appellate Body ... I had previous GATT experience. I had been already twice a permanent delegate to GATT ... And I had thought, mistakenly, that I would have some kind of advantage over my colleagues because of my past background. There was nothing of this sort. Surprisingly to me, from the very first moment I found that there was no aspect of the complaint or any appeal that came to the Appellate Body that all my colleagues were not able to deal with in a completely successful way, and very often, I'm sorry to say, even better than I did.906
Lacarte, supra note 3 at 183. Likewise, the inner operation of the collegial decision-making of GATT panels is described by Plank in the following terms: The panel aims at consensus which may lead to some envious drafting here and there as one member seeks to have included some special phrasing or have emphasized some particular element. .. .There can be considerable psychological pressure applied to the 'odd man/men out' by his/their panellist colleagues, and considerably give-and-take as regards findings and reasonings in order to achieve unanimous conclusions and a common judgment. When unanimity cannot be achieved the majority and minority opinions are set out wherever the members though or decided differently. ... The views of panel members as to their findings and conclusions are anonymous in panel reports, no matter whether they are unanimous or not. But who thought what is not kept secret for long. 360
This result is not only explained by the operation of the collegial decision-making process itself but also by the professional and intellectual stature of Appellate Body members, usually senior individuals with remarkable backgrounds in areas well beyond trade. The contributions they can make during the two level collegial decision-making process may be significant as James Bacchus implicitly pointed out:
[0]f the fourteen people who have sat on the Appellate Body, I think probably less than half have been primarily trade people or had had any particular experience in trade when they went on the Appellate Body ... but others have come from completely different backgrounds, and they brought a wealth of understanding and experience there as well. So I think these things have contributed to the consensus and contributed to the credibility of the 907 institution.
Undeniably, the two level collegial decision-making process of the Appellate Body is in a position to truly alter members' initial positions, because it effectively operates as a collegial body of equally qualified individuals. This is another point worth-mentioning which has a direct bearing on the impact the process may have on each member's initial understanding of the case. According to Ms. Hughes, there was no a strong leadership within the Appellate Body in the sense that a single member was able to command the institution and the rest were his or her mere followers. In Ms. Hughes's views, all members had great admiration and respect for each other and considered of great value their insight.908
Plank, supra note 769 at 106. 907 Bacchus, "Roundtable", supra note 2 at 182. 908 Hughes, Interview, supra note 888. 361
III.3.5.3.2 The Appellate Body's Steering of Its Self-Transformations by Selecting the Timing, Scope and Extent of Transformations of the WTO Dispute Settlement System
As was shown, all Appellate Body reports are the result of a two level collegial decision making process: the one that takes place within the Division in charge of the appeal and the second that occurs during the exchange of views. It was also illustrated how novel systemic issues are decided by the Appellate Body en banc, and that the determination of the policy orientation regarding such issues involves a full bargaining among members seeking to get a consensus. It was also shown how the Appellate Body observes the external environment and how it decides on the basis of calculations of some potential and strategic interpretations by Members and seeks to prevent such behaviour by specifically addressing in its reports.
As was mentioned in Part 1.2.1.6.1.3.5 of Chapter I, the steering by courts of their self- transformative autonomy is demonstrated by the fact that courts, not external actors, determine the timing, scope and justification of any specific self-transformation, after having carried out its collegial decision-making process. The Appellate Body satisfies this third requirement derived from the application of Luhmann' theory to judicial institutions.
To prove this point, it will be shown how the Appellate Body has been able to select the timing of self-transformations.909 A single example suffices, and this example is the
909 As was the case for both the U.S. Supreme Court and the ICJ, the demonstration of this requirement regarding the AB will be made on the basis of evidence resulting from AB reports and not on concrete and direct proofs showing that for the cases cited below the AB members specifically bargained about the timing, scope, and justifications of the self-transformation in question. Records of the AB deliberations are not public, nor have former AB members disclosed the content of their internal discussions, as expected. 362
Appellate Body decision in Turkey—Restrictions on Imports of Textile and Clothing
Products. l It will be seen below that one of the transformations the Appellate Body introduced to the WTO dispute settlement system was the possibility of assessing the
WTO consistency of regional trade agreements and customs unions. Such self- transformation was made by the Appellate Body in its report in Turkey - Textiles. Such report transformed the WTO dispute settlement system because it expanded its jurisdiction over issues that were considered to fall under the exclusive competence of the WTO political organ.911 There the Appellate Body decided to introduce the self-transformation in an obiter dictum despite the fact that the panel's decision not to assess regional trade agreements had not been appealed. Certainly, the AB knew that this dispute would virtually be the only occasion in the short and medium run in which it could be able to introduce the transformation, since this type of disputes is likely to be rare. The AB decided that the timing was right for die self-transformation. Given the fact that the AB has always stated that it only decides those issues necessary to resolve the dispute and the specific issues appealed, it is interesting to imagine the internal debate among the AB members at the Division level and during the exchange of views to determine whether, first, the WTO dispute settlement system had jurisdiction over the conformity of regional trade agreements, and, second, whether, if this was the case, the occasion to declare such jurisdiction was a report in which this topic was not part of any appeal. The two level collegial decision-making process came to the conclusion that both questions should be answered positively. Certainly, one is tempted to think that this was an occasion that could
910 Turkey—Restrictions on Imports of Textile and Clothing Products (1999), WTO Doc. WT/DS34/AB/R (Appellate Body Report), online: WTO http://docsonline.wto.org/gen search/asp, [hereinafter Turkey - Textiles AB Report]. 911 A detailed analysis of this report is provided below in Part III.3.5.4.2.2.2 of this chapter. 363 be considered as a "novel systemic issue", therefore it was likely the full AB, not only the
Division in charge of the appeal, and after a full bargaining among its members which decided the self-transformation. Therefore, as this example shows well, it is possible to
say that through the collegial decision-making process Appellate Body it is able to select the timing of its self-transformations and those relating to the WTO dispute settlement
system.
When exerting its autonomy to transform the system, the Appellate Body has also the ability to determine the extent of any self-transformation. It may decide introduce the change to the system to its fullest extent, or it may choose to do it on a step-by-step basis despite the fact that in each occasion the Appellate Body may have the possibility of going further. The scope of the self-transformation is a matter for the Appellate Body to decide.
Turning now to how the Appellate Body determines the extent of its self-transformations,
it is possible to say that the Appellate Body may well introduce the self-transformation to
its fullest extent, as it did in Turkey - Textiles, or it may choose to do it on a step-by-step basis to respond to the external environment, as it has been the case with amicus curiae briefs.
As will be seen below in Part III.3.5.4.1.1.3 of this Chapter, the Appellate Body
introduced first the possibility that panels could accept unsolicited amicus curiae in its
01 9 report in US - Shrimp. The panel had rejected three unsolicited amicus curiae briefs;
2 See US - Shrimp AB Report, supra note 98. 364 since it had not requested them, the DSU did not allow it to accept these briefs. The AB reversed this finding and declared that panels could accept unsolicited amicus briefs. The
AB could well have made an obiter dictum in this report to extend to itself the prerogative, as it did later in Turkey - Textiles to self-transform, but instead the AB chose to wait for a dispute in which it would deal specifically with its own right to accept amicus curiae briefs. It self-recognized such right in its report in United States—Imposition of
Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products
Originating in the United Kingdom, when it had to decide whether or not to accept two unsolicited briefs sent by two steel associations.915
Moreover, since then the Appellate Body has decided not to consider any unsolicited amicus curiae brief, which means that it self-transformed but it has decided not to use its self-transformation so far to appease WTO Members' opposition. This opposition was evident during appeal proceedings in the EC - Asbestos case, the AB adopted special procedures regarding amicus curiae briefs to be applied only in this case. The WTO
Membership reacted angrily against the AB, a General Council meeting was convened, and, according to Matsushita, "the General Council warned the Appellate Body that it
See United States—Import Prohibition of Certain Shrimp and Shrimp Products (1998), WTO Doc. WT/DS58/R at para.7.8 (Panel Report), online: WTO
should act with 'extreme prudence' on the issue of accepting briefs from non governmental organizations in dispute settlement proceedings ..." 916
As can be seen, the Appellate Body controlled the speed of the self-transformation by introducing it on a step-by-step basis. This way of self-transforming is the result of the collegial decision-making of the Appellate Body. In effect, by the time of the appeal in US
- Shrimp the issue of amicus curiae was a novel procedural issue and it was surely debated by the Appellate Body en banc. What this evolution also illustrates is that the
Appellate Body has been able to self-transform even in the face of significant opposition to its self-transformations. The step-by-step approach has made such self-transformations possible.
Finally, the Appellate Body steers the self-transformation because it has the capacity to determine the rationale of any justification, which results from the internal deliberation of the members. In effect, it will be shown below how the Appellate Body has the autonomy to develop its own argumentation. The justification in each appeal is fully discussed by the
Division and during the exchange of views, and, as Ms. Steger expressed to this author,
AB members and the Secretariat have designed techniques to avoid disagreement, such as carefully considering what common ground exists among those members having different views in order to avoid going further in the argument, if this is not necessary to resolve the dispute. The design and use of these techniques illustrates well that the Appellate Body
steers the crafting of the rationale of its self-transformations, and that the result of such
steering emerges from the collegial deliberation of the Appellate Body members.
916 Matsushita, "Thoughts", supra note 886 at 1400. 366
In sum, it can be posited that the Appellate Body satisfies the three requirements derived from Luhmann's theory to possess autonomy to transform itself and the WTO dispute settlement system. In effect, the Appellate Body can adopt decisions regarding the system; in cases in which a subject-matter of institutional repercussions for the system is raised, the DSU offers the AB discretion to decide the case on the basis of a set of alternative options; and third, the AB steers the exercise of its transformative autonomy because it has the ability, after having carried out its two level collegial decision-making process of deciding the moment, scope and justification of any transformation introduced to the system.
Having shown the AB's satisfaction of this requirement, this thesis turns now to show how the AB has exerted its autonomy to introduce modifications to the WTO dispute settlement system.
III.3.5.4 The Transformations Introduced Body to the WTO Dispute Settlement System by the Appellate Body
The Appellate Body not only has certain autonomy to introduce changes to the WTO dispute settlement system in theory, but it has exerted this autonomy in practice. Hudec provides a good explanation for the exercise of such autonomy, wholly applicable to the
Appellate Body:
Most legal systems are able to employ a certain momentum of habitual acceptance which attaches to their decision-making institutions. This momentum enables legal institutions to challenge the community's normative structure in the 367
short run, and thus to become a creative, educating force in their own right, Q17 helping to shape the underlying consensus on which they rest....
While the first years of the Appellate Body saw an institution that was extremely cautious, after this initial period it seems that the Appellate Body considered that it had achieved enough institutional prestige, and the creativity in its interpretations of the covered agreements, the DSU included, increased. On this basis, it can be said that the Appellate
Body has introduced two major transformations to the system: first, the Appellate Body has gained more control over disputes before it; and second, it has expanded the jurisdiction of the system, without exceeding such jurisdiction.
III.3.5.4.1 Appellate Body and Panels' Increasing Control Over Disputes
It was seen that diplomacy played a central role within the informal GATT dispute settlement proceedings. In order for their reports to be adopted by the losing Member, panels were as interested in arriving at a convenient result for the disputants as in applying
GATT law.919 While diplomacy was not expected to disappear after the creation of the
WTO and its dispute settlement body, ° it was clear that the system had to be less diplomatic and more rule-oriented. To this end, the AB had to take some critical
917 Hudec, Diplomacy, supra note 751 at 203. 918 This without saying that the Appellate Body became mainly activist when performing its duties. 919 See Robert Howse, "Adjudicative Legitimacy and Treaty Interpretation in International Trade Law. The Early Years" in J.H.H. Weiler ed., The EU, the WTO, and the NAFTA. Towards a Common Law of International Trade? (Oxford: Oxford University Press, 2000) 35 at 57 for an analysis of the interpretative method of GATT texts [Howse, "Legitimacy"]. 920 See Weiler, "Ethos of Diplomats", supra note 766 at 194. 921 For a general account of the operation of the system during its first decade, see, for instance, Giorgio Sacerdoti, "The Dispute Settlement System of die WTO: Structure and Function in the Perspective of the First 10 Years" (2006) 5 The Law and Practice of International Court and Tribunals 49. 368 decisions in order to place itself and panels within the world trade system. Thus, it does not come as a surprise that one of the most significant transformations the AB has introduced to the WTO dispute settlement system is that panels and the AB itself have gained more control over disputes922 at the expense of that of state litigants and WTO
Members generally, thereby attenuating the influence that diplomacy plays in dispute settlement proceedings.
This is understandable. Judicial bodies like the Appellate Body are strategic actors, and according to a founding Member of the Appellate Body, as was already said, all its members were aware that they had to create an institution with a distinctive role within the world trading system.924 To assert control over trade controversies was and is clearly a key issue for the building of this institution and its reputation. Indeed, more control over disputes also allows panels and the Appellate Body to be in a better position to properly adjudicate trade controversies, thus benefiting parties and the whole WTO membership and making a significant contribution to the security and predictability of the world trading system, a clear objective of the Dispute Settlement System set forth in Article 3.2 oftheDSU.
The transformation introduced by the Appellate Body to the dispute settlement system that has allowed panels and the Appellate Body itself to have more control over disputes is contained in a set of decisions in which (i) it has strengthened panels' fact- finding powers; (ii) it has broadened parties' opportunity to provide evidence to panels; (iii) it has
See McRae, "Appellate Jurisdiction", supra note 791 at 107. See Maltzman et al, supra note 180 at 13. 369 allowed panels to assess evidence related to facts that pre-date and post-date the request for establishment of panels; (iv) it has granted panels and the Appellate Body itself the capacity to control disputes in terms of arguments; and (v) it has started a self- transformation aimed at asserting more control over the agenda of disputes once parties have established their framework in the request for establishment of panels.
III.3.5.4.1.1. Bolstering the WTO Quasi-Judiciary's Fact-Finding Powers925
Insufficient fact finding is one of the most prominent deficiencies of the WTO quasi- judiciary, as recognized by one of the original members of the AB, and the Appellate
Body has taken concrete steps to solve this weakness. Indeed, the Appellate Body has been granting panels the possibility of being more assertive in their fact-finding process. One of the reasons for this is to try to prevent Members from taking advantage of this weakness in order to evade the fulfilment of their obligations. Thus, what the
Appellate Body is striving for is to promote more fairness in the WTO adjudication process by reducing the asymmetries of information favouring a given party. Nonetheless,
924 See Ehlermann, "Reflections", supra note 819 at 695. 925 Throughout this part, the term WTO quasi-judiciary will mean ad hoc panels and the AB. Strictly speaking, the World Trade Organization lacks a judiciary as the concept is understood in domestic law. Indeed, the WTO dispute settlement system is quasi-judicial for many reasons. Among them are three already described in this Chapter. First, because panels are ad hoc. Second, because panels and the Appellate Body depend on a political entity, the Dispute Settlement Body, to adopt its reports. And third, because as was previously underlined, the WTO dispute settlement system possesses several, important stages, such as consultations between parties and the way respondent Members comply with adopted reports, where politics plays a fundamental role. 26 See Ehlermann, "Six Years", supra note 821 at 623. 927 See also in this regard, McRae, "Appellate Jurisdiction", supra note 791 at 107 and Jackson, Sovereignty, supra note 791 at 180. 928 For Feliciano, former member of the AB, and Van den Bossche it is essential for panels to control the fact-finding process. See Florentino Feliciano & Peter L. H. Van den Bossche, "The Dispute Settlement System of the World Trade Organization" 75 Philippine Law Journal 1 at 30-31, cited by Steve Charnovitz. Charnovitz, "Judicial Independence", supra note 902 at 228, n. 67. 370 there is another systemic side effect critical for the AB itself: complete factual records at the panel stage are a fundamental component of the appellate phase, if the AB has to complete the analysis by rendering decisions on a basis different from the panel.929 Thus, fact finding is a key element of the effective operation of the AB itself.
The AB has adopted creative interpretations of the DSU in order to alleviate the weakness in fact finding.930 The transformation aimed at enhancing the fact-finding capabilities of
WTO judiciary is evidenced by the following determinations adopted by the Appellate
Body: (i) creation of the Members' duty to provide information requested by panels; (ii) the extension of the panels' right to make negative inferences in the case of Members' refusal to submit such information; and (iii) recognition of the right of WTO panels and
Appellate Body to accept amicus curiae briefs.
III.3.5.4.1.1.1. Appellate Body's Creation of the Members' Duty to Provide Requested Information to Panels
Article 13 of the DSU establishes the right of panels to require information from Members in the course of dispute settlement proceedings. However, the third sentence of the article
The technique of completing the analysis prevents the Appellate Body from leaving unsettled disputes. As is known, the panel may well decide not to evaluate other claims once it has identified one violation. A systemic problem emerged when the AB reversed the findings of violation found by a panel. One alternative in this situation would be to remand the case to the panel. The other alternative for the AB would be to complete the analysis using the extant factual record of the case and to rule on the other claims the panel had refused to adjudicate when it exercised judicial economy. Given the legal impossibility of adopting the first, and to the lack of guarantee that the original panellists would be again available the AB chose the second in Canada—Certain Measures Concerning Periodicals. See Canada—Certain Measures Concerning Periodicals (1997), WTO Doc. WT/DS31/AB/R at 24-26 (Appellate Body Report), online: WTO
is ambiguous regarding to what extent it sets forth a positive obligation to submit the
given information, by stating that "a Member should respond promptly and fully to any request by a panel for such information as the panel considers necessary and appropriate."
The use of the word "should" could indicate that the provision is hortatory in character.
The Appellate Body, however, did not accept such a reading of Article 13, which would
allow Members to retain control of how far the WTO quasi-judiciary could go in fact
finding within dispute settlement proceedings. In its report in Canada—Measures
Affecting the Export of Civilian Aircraft, the Appellate Body established that Article 13
imposes on Members a positive obligation to submit the information requested by panels.
The Appellate Body stated:
[W]e are of the view that the word 'should' in the third sentence of Article 13.1 is, in the context of the whole of Article 13, used in a normative, rather than a merely exhortative, sense. Members are, in other words, under a duty and an obligation to 'respond promptly and fully' to requests made by panels for information under Article 13.1 of the DSU. 31
The policy reasons of this conclusion in favour of the WTO quasi-judiciary were so
expressed by the Appellate Body:
If Members that were requested by a panel to provide information had no legal duty to 'respond' by providing such information, that panel's undoubted legal 'right' to seek information ... would be rendered meaningless. A Member party to a dispute could, at will, thwart the panel's fact-finding powers and take control itself of the information-gathering process that Articles 12 and 13 DSU place in the hands of the panel. A Member could, in other words, prevent a panel from carrying out its tasks of finding the facts constituting the disputes before it and, inevitably, from going forward with the legal characterization of those facts ...
931 Canada—Measures Affecting the Export of Civilian Aircraft (1999), WTO Doc. WT/DS70/AB/R at para. 187 (Appellate Body Report), online: WTO
The Appellate Body concluded that such a decision was, as it is, in the best interest of
Membership:
[S]o to rule [that there was no duty to provide information] would reduce to an illusion and a vanity the fundamental right of Members to have disputes arising between them resolved through the system and proceedings for which they bargained for in concluding the DSU...
In this report, the Appellate Body clearly set aside its normal principle of interpretation of
WTO law, as Ehlermann declared:
The interpretation of the word 'should' in Article 13 DSU is one of the rare cases in which the Appellate Body, in following the methodology prescribed by Article 13 of the Vienna Convention, clearly attributes more weight to the criteria of 'context' and 'object and purpose' than to the 'ordinary meaning of the words'.934
Undeniably, the Appellate Body exerted it autonomy to transform the weak provision of the DSU regarding panels' fact finding powers into a strong one, for the benefit not only of panels but also of the Appellate Body itself, as was mentioned. It is highly likely that this decision was not adopted exclusively by the Division in charge of the Canada -
Aircraft appeal, but by the Appellate Body en banc, given its character of novel systemic
935 issue.
933 Ibid, at para. 189. 934 Ehlermann, "Six Years", supra note 821 at 624, n. 32. For a complete evaluation of the Appellate Body's ruling in Canada - Aircraft, see R. Behboodi, "Should" Means "Shall": A Critical Analysis of the Obligation to Submit Information under Article 13.1 of the DSU in Canada-Aircraft Case" (2000) 3 J. of Int'l. Econ. L. 563. 935 Given the importance of fact-finding for the operation of the AB it is doubtful that the transformation of Article 13 of the DSU into a mandatory provision generated divergent views among the members. But one 373
III.3.5.4.1.1.2. Panels' Right to Make Negative Inferences
To strengthen the WTO panels' fact-finding capabilities, declaring that Members have the duty to provide the information requested by panels is just the first step. To ensure that this duty was fulfilled, it is necessary to impose consequences on reluctant Members. That is presumably why the AB decided to extend to cases dealing with other agreements the prerogative that the Subsidies Agreement in Annex V confers on panels to draw negative inferences from the refusal of Members to submit the information requested by the former.936
However, the right to draw adverse inferences is contemplated exclusively in the
Subsidies Agreement. The transformation introduced by the Appellate Body consisted in extending it beyond such Agreement in its report in United States— Definitive Safeguard
Measures on Imports of Wheat Gluten from the European Communities. There the
Appellate Body held that such a right also exists in safeguard investigations, without providing a basis for such an extension. Nonetheless, the AB has not pushed panels too far in this regard by granting them the discretion whether or not to make adverse inferences in the absence of co-operation. The exercise of this discretion, though, is not left exclusively in the hands of panels. Such discretion, the Appellate Body said, is an issue of
can speculate, though, that the justification for this transformation may have been subject of extensive bargaining or deliberation. 936 See WTO Legal Texts, supra note 4 at 273. 937 See United States—Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (2000), WTO Doc. WT7DS166/AB/R at paras. 170-76 (Appellate Body Report), online: WTO
In reviewing the inferences the Panel drew from the facts of record, our task on appeal is not to redo afresh the Panel's assessment of those facts, and decide for ourselves what inferences we would draw from them. Rather, we must determine whether the Panel improperly exercised its discretion, under Article 11, by failing to draw certain inferences from the facts before it. In asking us to conduct such a review, an appellant must indicate clearly the manner in which a panel has improperly exercised its discretion. Taking into account the full ensemble of the facts, the appellant should, at least: identify the facts on the record from which the Panel should have drawn inferences; indicate the factual or legal inferences that the panel should have drawn from those facts; and, finally, explain why the failure of the panel to exercise its discretion by drawing these inferences amounts to an error of law under Article 11 of the DSU.938
The recognition of the discretion of panels, and the specification of the conditions to appeal its exercise, are two strategic decisions whose end result will be a better fact finding process at the panel stage. 39
IH.3.5.4.1.1.3. Panels and Appellate Body's Right to Receive Unsolicited Amicus Curiae Briefs
Surely the most contentious transformation introduced by the Appellate Body to the WTO dispute settlement system has been the admission of unsolicited amicus curiae briefs by
ICSID. Award, Marvin Feldman v. Mexico. Case No. ARB(AF)/99/l, para. 178. For a hint towards a potential use of this power see the ICJ judgment in Genocide. Genocide, supra note 439 at para. 206. 938 US - Wheat Gluten AB Report, supra note 937 at para. 175. 939 The fact that so far no panel has draw adverse inferences against a party reluctant to provide information requested by a panel says nothing regarding the effectiveness of the creation of the possibility for panels and the Appellate Body to draw such inferences. In fact, it is possible that the existence of such a possibility could have contributed to parties' willingness to furnish panels the information they have requested. 375 both panels and the AB. Apart from the democratic impact that it produces on the WTO system as a whole,941 the decision to allow panels and the Appellate Body to consider unsolicited amicus curiae briefs may have a significant effect on the operation of the
WTO dispute settlement system.942
In effect, these briefs might contribute to improving the fact-finding process in WTO judicial proceedings. Indeed, in practical terms, unsolicited amicus curiae briefs support the view of one of the parties to the given dispute, so that the factual information such briefs provide might include data that the supported party might not possess or that the other party did not provide to the panel for whatever reason. In the case of very sensitive controversies involving values other than trade, such as health or the environment, amicus curiae briefs can bring expertise that can be valuable for their correct adjudication.
Given that the DSU in no way contemplated the admission of amicus curiae briefs, and perhaps was designed with the idea of avoiding it without its express rejection,943 the
There are certain aspects of the amicus curiae issue that are not problematic. Panels may request, pursuant to Article 13, DSU expert opinions from non-governmental organizations regarding matters related to the dispute at hand. To this extent, this NGO participation in WTO dispute settlement proceedings is expressly contemplated by WTO law. In a similar vein, the decision of parties to include within their submissions NGO briefs might be considered part of their right to make submissions to panels. 941 See for instance, Howse, "Legitimacy", supra note 919 at 48 942 No doubt, unsolicited amicus curiae briefs enrich the quality of the dispute resolution process in terms of legal arguments, since these briefs might well deal with issues of facts and laws. On the topic of amicus briefs, see Laurence Boisson de Chazournes & Makane Moise Mbengue, "The Amici Curiae and the WTO Dispute Settlement System: The Doors are Open" (2003) 2 Law and Practice of International Courts and Tribunals 205, Gabrielle Marceau & Matthew Stilwell, "Practical Suggestions For Amicus Curiae Briefs Before WTO Adjudicating Bodies" (2001) 4 J. of Int'l Econ. L 155, Petros Mavroidis, "Amicus Curiae Briefs Before the WTO: Much Ado About Nothing" Jean Monnet Working Paper No 2 (2001) available at http://www.jeanmonnetprogram.org/papers/01/010201.html. and Joel P. Trachtman & Philip M. Moremen, "Costs and Benefits of Private Participation in WTO Dispute Settlement: Whose Rights is It Anyway?" (2003) 44 Harv. J. of Int.l L. J. 221. For an evaluation of this issue from a general international law perspective, see Philippe Sands, "Turtles and Torturers: The Transformation of International Law" (2001) 33 N.Y.U.J. Int'l L & Pol. 527 at 539-48. 943 See McCall Smith, supra note 868 at 88. 376
Appellate Body had to adopt, once again, completely unconventional interpretations of the
DSU and make use of the full persuasion of its argumentation, despite the fact that amicus briefs are accepted by multiple international tribunals.944
As is widely known, the occasion came to adopt such an interpretation in the appeal in US
- Shrimp. The panel had rejected three unsolicited amicus curiae briefs; since it had not requested them, finding that the DSU did not allow it to accept these briefs.945 The
Appellate Body reversed this finding, stating that "in the present context, authority to seek information is not properly equated with a prohibition on accepting information which has been submitted without having been requested by a panel. A panel has the discretionary authority either to accept and consider or to reject information and advice submitted to it, whether requested by a panel or not..."
However, these briefs can be as important to the Appellate Body as they are to the panels.
Being the highest trade adjudicative body of the world, and with a limited tradition on which to ground its institutional reputation, the Appellate Body requires all the information—factual and legal—available in order to make decisions that, from its standpoint, are politically, economically, and legally correct.947 As a matter of policy, the
Appellate Body must have a complete perspective in all disputes, and these unsolicited briefs can be important.
944 For ways in which many international tribunals deal with amicus curiae briefs, see Philippe Sands, Ruth Mackensie, and Yuval Shany, eds., Manual on International Courts and Tribunals (London: Butterworths, 1999). 945 See US - Shrimp Panel Report, supra note 913 at para. 7.8. 946 US - Shrimp AB Report, supra note 98 at para. 108. 947 See McCall Smith, supra note 868 at 79. 377
In the appeal process in United States - Imposition of Countervailing Duties on Certain
Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United
Kingdom948 the Appellate Body self-transformed by extending to itself the possibility of accepting unsolicited amicus curiae briefs, on the basis that no provision of the DSU or of its Working Procedures prohibited its doing so.94 An Appellate Body guided by self- restraint would have approached a systemic issue like this with extreme caution, given the majority opposition of WTO Membership, and perhaps followed another interpretative principle broadly applied by the WTO quasi-judiciary, according to which, if Members wished that the respective matter was made part of the covered agreements, they explicitly
included it.950 However, faced with two conflicting interpretations the Appellate Body
chose to defy the opposition and to transform the system.
III.3.5.4.1.1.3.1 Appellate Body's Direction over the Self-Transformation In the Face of Majority Opposition in the Amicus Curiae Controversy
The Appellate Body's decision to allow panels and itself to accept unsolicited amicus
curiae briefs illustrates well the Appellate Body's direction of its self-transformations
despite significant WTO Membership opposition. Following its decision that, in principle,
See US - Lead and Bismuth II AB Report, supra note 914. 949 See ibid, at para. 39. For a complete analysis of the AB decision to accept amicus curiae briefs from an insider's perspective, see Steger, Peace through Trade, supra note 773 at 207-42. 950 See for instance, Mexico—Measures Affecting Telecommunications Services (2004), WTO Doc. WT/DS284/R para 7.31 (Panel Report), online: WTO
The modus operandi established by the Appellate Body seems a perfect example of the interplay between external and internal legitimacy. The audacity of stepping in and allowing amici briefs in principle (external legitimacy) will be counterbalanced, at least at first, by a prudence and conservatism in implementing the principle (internal legitimacy). Go too far in one direction and the Appellate Body would find itself under severe internal challenge. Go too far in the other direction and it will not only become a target of outside sharp attacks but open itself to attack as bowing to political pressure. One should allow a reasonable time to pass before judgment is made as to the success of the "World Trade Court" in finding the appropriate balance .. .952
Sands considers that the Appellate Body's cautious approach could eventually be seen as affecting its independence, although he also considers that it might be the result of the
Appellate Body "taking account of signals from the political organs."
It may be worth-noting a couple of factors that have surely played a role in the actual state of the amicus curiae debate. The first is that the Appellate Body has the support of the
United States, and in international politics this support is in itself significant. On the other hand, Members opposing the Appellate Body have limitations in the credibility of their threats for they know that a strong Appellate Body may operate in their favour in the future, which explains why Members have decided not even attempt to use their power to
WT7DS213/AB/R at para. 65 (Appellate Body Report), online: WTO
Agreement in order to reverse the AB's stance on amicus briefs.,954 In other words, not only have they not used Article IX, but also they have not even threatened the Appellate
Body with its use by tabling a draft of the interpretation. The absence of even the threat would apparently convey the message that Members are not willing to challenge the
Appellate Body in this regards, at least as things stand so far. The Appellate Body's behaviour may well be a careful decision to keep the self-transformation without triggering even the threat of effective use of Article IX.2.
Finally, it is important not to ignore the fact that the Appellate Body is acting in the middle of the negotiation of the Doha Round, in which changes to the WTO dispute settlement system are being discussed. Therefore, from the Appellate Body's perspective the timing for embarking on a broad use of amicus curiae briefs may not be the right one.
In effect, such broad use could lead opposing Members to rewrite the DSU to provide specifically that WTO panels and the Appellate Body cannot accept such briefs, which would leave the Appellate Body without this important tool for the proper adjudication of disputes in and increasing complex world trading system.
However, a point worth-making is that despite the WTO Membership majority opposition, the Appellate Body was able to transform the WTO dispute settlement system. Today, amicus curiae are not a contentious issue as such, and there is no apparent intention
power conferred upon it by Article IX.2 therefore there is an instrument to reverse the Appellate Body jurisprudence regarding amicus curiae briefs. See Howse & Esserman, supra note 784 at 67. 954 The text of this provision is included in note 814, above. 380 among Members to use the opportunity for revision of the system in the Doha Round to reverse the Appellate Body jurisprudence in this regard.955
III.3.5.4.1.1.4 Summary
In synthesis, the Appellate Body transformed a system in which fact-finding was a real weakness, into one in which panels have better instruments to be assertive in the search of facts. The Members' duty to provide information requested, the panels and Appellate
Body's possibility of drawing adverse inferences, and the possibility of accepting amicus curiae briefs are three important instruments aimed at enhancing the fact-finding capabilities of the system and of great importance for the proper adjudication of disputes at the panel and Appellate Body level.
III.3.5.4.1.2 The Appellate Body's Broadening of the Panels' Capacity to Assess Facts
III.3.5.4.1.2.1 Broadening Parties' Opportunity to Provide Evidence to Panels
In its quest to ensure adequate factual records, the AB has not only strengthened the panels' fact finding capacities, but has also granted panels wide discretion to accept evidence provided by parties. The DSU and the Working Procedures are silent in this regard and the AB has taken this opportunity to ensure panels' flexibility to decide whether or not to accept evidence at the latest stages in panel proceedings, although it has also set out the conditions such acceptance must meet in order to comply with Article 11 and its duty to carry out an objective assessment of the matter: panels must offer the other
955 At least, this is the perception from the Appellate Body's Secretariat, according to one of its counsellors, 381 parties opportunities to respond to such evidence. For instance, in its report in Argentina -
Textiles and Apparel it upheld the panel's decision to accept evidence two days before its second and last meeting with the parties, on the basis that both the DSU and the Working
Procedures do not establish time limits for submitting evidence. The AB held that
Article 11 of the DSU does not establish time limits for the submission of evidence to a panel. Article 12.1 of the DSU directs a panel to follow the Working Procedures set out in Appendix 3 of the DSU, but at the same time authorizes a panel to do otherwise after consulting the parties to the dispute. ... [H]owever, the Working Procedures in their present form do not constrain panels with hard and fast rules on deadlines for submitting evidence. The panel could have refused to admit the additional documentary evidence of the United States as unseasonably submitted. The panel chose, instead, to admit that evidence, at the same time allowing Argentina two weeks to respond to it. ... [W]hile another panel could well have exercised its discretion differently, we do not believe that the Panel here committed an abuse of discretion amounting to a failure to render an objective assessment of the matter as mandated by Article 11 of the DSU.956
Subsequently, in its report in European Communities—Trade Descriptions of Sardines the
Appellate Body put some limits by declaring that "[t]he interim review stage is not an appropriate time to introduce new evidence." The reason for such finding was that
QCQ panels are authorized by Article 15 of the DSU to review specific aspects of the report
Alan Yanovich. Interview held with Alan Yanovich in Geneva on August 23 2007 [Yanovich, Interview]. 956 Argentina—Measures Affeting Imports of Footwear, Textiles, Apparel and Other Items (1998), WTO Doc. WT7DS56/AB/R at paras. 79-81 (Appellate Body Report), online: WTO
957 European Communities—Trade Descriptions of Sardines (2002), WTO Doc. WT/DS231/AB/R at para. 301 online: WTO
2. Following the expiration of the set period of time for receipt of comments from the parties to the dispute, the panel shall issue an interim report to the parties, including both the descriptive sections and the panel's findings and conclusions. Within a period of time set by the panel, a party may submit a written request for the panel to review precise 382 and not to assess new evidence.959 Such rule was ratified by the Appellate Body in EC -
Selected Customs Matters.
However, while the Appellate Body has been generous with panels' capacity to gather evidence, it has not been so with regard to itself. Its report in United States—Continued
Dumping and Subsidy Offset Act of 2000 the Appellate Body established that it would not consider evidence that was not before panels, even though it was part of the public record, but was adduced by parties only before the Appellate Body.961 Compared with the
International Court of Justice's approach to evidence in the public record, the standard of the Appellate Body is certainly stricter.
aspects of the interim report prior to circulation of the final report to the Members. At the request of a party, the panel shall hold a further meeting with the parties on the issues identified in the written comments. If no comments are received from any party within the comment period, the interim report shall be considered the final panel report and circulated promptly to the Members. WTO Legal Texts, supra note 4 at 365. 959 See EC - Sardines AB Report, supra note 957 at para. 301. 960 See European Communities—Selected Customs Matters (2006), WTO Doc. WT/DS315/AB/R at para. 259 (Appellate Body Report), online: WTO
III.3.5.4.1.2.2 Panels Can Assess Evidence of Facts that Pre-Date and Post-Date the Request for Establishment of the Panel
The Appellate Body has granted panels a broad discretion to gather as many facts as possible. In effect, it has stated that they can assess evidence related to facts that have taken place before and after the request for establishment of panels, therefore granting panels a broad possibility to gather facts to adjudicate trade disputes. In its report in EC -
Selected Custom Matters the Appellate Body stated:
[W]hile there are temporal limitations on the measures that may be within a panel's terms of reference, such limitations do not apply in the same way to evidence. Evidence in support of a claim challenging measures that are within a panel's terms of reference may pre-date or post-date the establishment of the panel. A panel is not precluded from assessing a piece of evidence for the mere reason that it pre-dates or post-dates its establishment.962 In this case, the United States was not precluded from presenting evidence relating to acts of administration before and after the date of Panel establishment. A panel enjoys a certain discretion to determine the relevance and probative value of a piece of evidence that pre-dates or post-dates its establishment.
As can be seen the Appellate Body has used the discretion offered by the silences of the
DSU to strengthen the system by according parties wide opportunities to provide evidence before panels and it has also allowed panels to examine evidence produced even after their establishment.
(Footnote in the original). However, we recall that, in US - Cotton Yarn, the Appellate Body stated (when reviewing a textile safeguards determination) that a Member cannot be expected to examine 'evidence that did not exist and that, therefore, could not possibly have been taken into account when the Member made its determination. ... Consequently, a panel must not consider evidence which did not exist at that point in time.'' (Appellate Body Report, US - Cotton Yarn, paras. 77 and 78 (original emphasis; footnote omitted)). We also note the Appellate Body's statement in EC - Sardines that '[t]he interim review stage is not an appropriate time to introduce new evidence.' (Appellate Body Report, EC-Sardines , para. 301) 384
III.3.5.4.1.3 WTO Quasi-Judiciary's Control of Disputes in Terms of Arguments
Drawing on the practice of the International Court of Justice, the Appellate Body introduced the freedom of argumentation for the benefit of panels and the Appellate Body itself, thereby gaining a very important element of control over disputes. By virtue of this freedom the WTO quasi-judiciary does not have to rely on the arguments made by parties but can also use those put forward by third parties or developed by panels and the
Appellate Body on their own.
In EC - Hormones, the Appellate Body said that, while panels are bound to the claims made by the parties, they are not regarding their arguments.
[P]anels are inhibited from addressing legal claims falling outside their terms of reference. However, nothing in the DSU limits the faculty of a panel freely to use arguments submitted by one of the parties - or to develop its own legal reasoning - to support its own findings and conclusions on the matter under consideration. A panel might be well unable to carry out an objective assessment of the matter, as mandated by Article 11 DSU, if in its reasoning it had to restrict itself solely to arguments presented by the parties to the dispute...964
The Appellate Body has granted itself identical freedom. In effect, relying on ICJ's
statements regarding the principle jura novit curiae, the AB held in its report in European
Communities—Conditions for the Granting of Tariff Preferences to Developing Countries.
We are therefore of the view that the European Communities must prove that the Drug Arrangements satisfy the conditions set out in the Enabling Clause.
EC - Selected Customs Matters AB Report, supra note 960 at para. 188. See also Brazil—Measures Affecting Imports of Retreaded Tyres (2007), WTO Doc. WT/DS332/AB/R at para. 193 (Appellate Body Report), online: WTO
Consistent with the principle of jura novit curia , it is not the responsibility of the European Communities to provide us with the legal interpretation to be given to a particular provision in the Enabling Clause966; instead, the burden of the European Communities is to adduce sufficient evidence to substantiate its assertion that the Drug Arrangements comply with the requirements of the Enabling Clause.967
The Appellate Body has established that the freedom of argumentation exists regarding both claims, defences, and rebuttals. As to the latter two situations, the Appellate Body held in its report in US - Gambling:
In the context of affirmative defences, then, a responding party must invoke a defence and put forward evidence and arguments in support of its assertion that the challenged measure satisfies the requirements of the defence. When a responding party fulfils this obligation, a panel may rule on whether the challenged measure is justified under the relevant defence, relying on arguments advanced by the parties or developing its own reasoning. The same applies to rebuttals. A panel may not take upon itself to rebut the claim (or defence) where the responding party (or complaining party) itself has not done so.
As part of the freedom of argumentation, panels and the Appellate Body do not need to respond to all arguments made by parties. In its report in European Communities—
965 (Footnote in the original) The principle of jura novit curia has been articulated by the International Court of Justice as follows: It being the duty of the Court itself to ascertain and apply the relevant law in the given circumstances of the case, the burden of establishing or proving rules of international law cannot be imposed upon any of the parties, for the law lies within the judicial knowledge of the Court. (International Court of Justice, Merits, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 1986 ICJ Reports, p. 14, para. 29 (quoting International Court of Justice, Merits, Fisheries Jurisdiction Case (United Kingdom of Great Britain and Northern Ireland v. Iceland), 1974 ICJ Reports, p. 9, para. 17)) 966(Footnote in the original) Compare Appellate Body Report, EC - Hormones, para. 156, which states: [N]othing in the DSU limits the faculty of a panel freely to use arguments submitted by any of the parties — or to develop its own legal reasoning — to support its own findings and conclusions on the matter under its consideration. A panel might well be unable to carry out an objective assessment of the matter, as mandated by Article 11 of the DSU, if in its reasoning it had to restrict itself solely to arguments presented by the parties to the dispute. 967 European Communities—Conditions for the Granting of Tariff Preferences to Developing Countries (2004), WTO Doc. WT/DS246/AB/R at para. 105 (Appellate Body Report), online: WTO 386
Measures Affecting the Importation of Certain Poultry Products the Appellate Body stated:
[J]ust as a panel has the discretion to address only those claims which must be addressed in order to dispose of the matter at issue in a dispute, so too does a panel have the discretion to address those arguments it deems necessary to resolve a particular claim ...
In other occasions, the Appellate Body has used its freedom of argumentation to clarify provisions that have not been raised by appellants as being violated by panels. In other words, the Appellate Body has dealt with issues for which its views were not asked by appellants, thereby assuming more control over the legal aspects of the dispute. In effect, in its report in EC - Tariff Preferences the Appellate Body expressed that:
We note, moreover, that the European Communities has not appealed the Panel's interpretation of paragraph 3(c) of the Enabling Clause. Instead, the European Communities has invoked that provision solely as 'contextual support' for its interpretation of 'non-discriminatory' in footnote 3. We also note that the Panel made no findings in this case as to whether the Drug Arrangements are inconsistent with paragraph 3(a) or 3(c) of the Enabling Clause. Our mandate, pursuant to Article 17.6 of the DSU, is limited to issues of law covered in the panel report and legal interpretations developed by the panel". Therefore, in this appeal, we are not required to, and we shall not address, the issue of whether the Drug Arrangements are consistent with paragraphs 3(a) and 3(c) of the Enabling Clause. This does not prevent us, of course, from examining those paragraphs as context for our interpretation of 'non-discriminatory' in footnote 3.
968 US - Gambling AB Report, supra note 871 at para. 282. 969 European Communities—Measures Affecting the Importation of Certain Poultry Products (1998), WTO Doc. WT/DS69/AB/R at para. 135 (Appellate Body Report), online: WTO
In sum, the Appellate Body has released the WTO quasi-judiciary from the arguments made by the parties before it. Panels and the Appellate Body do not have to respond to all arguments advanced by disputant Members, they can use their arguments in ways not utilized by them, and panels and the Appellate Body can use their freedom of argumentation to provide clarification of provisions parties have not explicitly invoked.
The Appellate Body has therefore granted the WTO quasi-judiciary a significant ability to provide the justification for its rulings that it considers necessary in light of the particularities of the case and of its relevant external environment.
III.3.5.4.1.4. Appellate Body's Control over the Agenda of Disputes Once Parties have Established their Framework: Judicial Economy at the Appellate Level
As a normal feature of third party adjudication, parties retain a considerable capacity to set the agenda of the WTO dispute settlement system, and in particular of panels and the
Appellate Body. In fact, it is the Appellate Body itself that has promoted the role of WTO
Members as exclusive agenda setters by refusing to give any practical content to the requirement contemplated in Article 3.7 of the DSU, according to which "[bjefore bringing a case, a Member shall exercise its judgment as to whether action under these procedures would be fruitful."971
971 WTO Legal Texts, supra note 4 at 356. Perhaps one of the most extreme examples that illustrates well how Members has simply unlimited access to the WTO dispute settlement system is India's decisions to bring the EC - Tariff Preferences case. Bacchus, who had left the AB at this time, considers that despite the fact that perhaps no WTO Member shared India's views, India "was free to decide whether it was fruitful to bring that case ..." Bacchus, "Roundtable", supra note 2 at 178. 388
The AB declared in its report in Mexico—Antidumping Investigation of High Fructose
Corn Syrup (HFCS) from the United States - Recourse to Article 21.5 of the DSU by the
United States, that the decision to bring a case before the Dispute Settlement System is not a matter for panels or the Appellate Body to assess. Moreover, panels and the Appellate
Body have to rule only on those claims made by parties.973 But once Members have set the framework of the dispute, the WTO quasi-judiciary should be able to decide which claims they would rule on, thus refraining from adjudicating others. The concept of judicial economy, then, is defined by the panels and AB's discretion not to rule on claims made by parties, if to do so is not necessary to solve the dispute at issue. GATT panels exerted this power,974 and the ICJ possesses it. It was shown before in Part II.2.1.5.4.1.4 of Chapter II how the ICJ controls the agenda of the dispute by having granted itself the discretion, first, to select the order of assessment of claims, and, second, to determine those claims it will adjudicate, thereby setting aside those it does not wish to cope with. Thus, what in WTO parlance is known as judicial economy is also a control tool that the ICJ enjoys.
972 The Appellate Body pointed out: Given the "largely self-regulating" nature of the requirement in the first sentence of Article 3.7, panels and the Appellate Body must presume, whenever a Member submits a request for establishment of a panel, that such Member does so in good faith, having duly exercised its judgement as to whether recourse to that panel would be "fruitful". Article3.7 neither requires nor authorizes a panel to look behind that Member's decision and to question its exercise of judgement. Therefore, the Panel was not obliged to consider this issue on its own motion. Mexico—Antidumping Investigation of High Fructose Corn Syrup (HFCS) from the United States - Recourse to Article 21.5 of the DSU by the United States (2001), WTO Doc. WT/DS132/AB/RW at para 74 (Appellate Body Report), online: WTO
One of the ongoing transformations introduced by the AB to the WTO dispute settlement system is to grant to itself the capacity to exert judicial economy, despite the restriction posed by Article 17.12 of the DSU. This norms sets forth that
The Appellate Body shall address each of the issues raised in accordance with paragraph during the appellate proceeding.975
By doing this, the AB is heading towards granting itself the level of discretion the ICJ has and GATT panels enjoyed by being able to select the claims it will rule on in order to resolve the dispute at issue. This is an ongoing transformation in the sense that the AB has started to take the steps in this direction although it neither has declared that it possesses the capacity to exert judicial economy nor it has made frequent use of it. A complete understanding of this AB's self-transformation must necessarily include the other the AB is introducing by narrowing the scope of judicial economy at the panel level. To develop the argument this section continues, first, with an illustration and explanation of the AB's reduction of WTO panels' discretion to exert judicial economy, and then it will analyze the steps the AB has adopted to grant itself the power to exercise judicial economy, thereby asserting more control over the agenda of disputes.976
WTO Legal Texts, supra note 4, at 367. Paragraph 6 provides in turn: An appeal shall be limited to issues of law covered in the panel report and legal interpretations developed by the panel. Ibid, at 366. 976 Although it seems evident that the AB can exercise judicial economy, this is not the case. The AB Secretariat does not report any case in which the AB has overtly stated that it has it. In the Secretariat's WTO Appellate Body Repertory of Reports and Awards. 1995—2004 there is no mention to AB's judicial economy in the case-law reported regarding Article 17.12. (See WTO Appellate Body Secretariat, WTO Appellate Body Repertory of Reports and Awards. 1995—2004 (Cambridge: Cambridge University Press, 2005) at 609. Additionally, all reported cases included by die Secretariat regarding judicial economy are related to WTO panels only. See ibid, at 192-94. Lastly, one of the books prepared to commemorate the tenth anniversary of the AB contains an article assessing the case-law related to the judicial economy entitled "Reflections on the concept of 'judicial economy' in WTO dispute settlement". One of the authors of this piece is a legal officer of the Secretariat and the first footnote of this piece states: The term 'judicial economy', in WTO law, has been applied in the context of panel findings. This term is not used in the context of appellate review. Moreover, it may be noted that, pursuant to Article 17.12, the Appellate Body 'shall address each of the issues 390
III.3.5.4.1.4.1 AB's Narrowing of WTO Panels' Discretion to Exert Judicial Economy
The AB established in US - Wool Shirts and Blouses that panels do not have to rule on every claim made by complainants,977 but only on those they consider necessary to resolve the dispute, thereby ratifying the discretion that GATT panels enjoyed in this regard.
However, the AB subsequently warned panels in Australia - Salmon about exercising false judicial economy, which would leave the Appellate Body unable to complete the analysis979 and the DSB ill-placed to make enough recommendations and rulings to solve the dispute.980 The reason is that the more judicial economy panels exert, the less likely the AB will be able to complete the analysis, if needed, and to resolve the dispute in
question.
In practical terms, the Appellate Body has reduced the scope of judicial economy at the panel level compared to that GATT panels enjoyed. Since Australia - Salmon panels have tended to make broad findings in order to grant the Appellate Body enough bases to
QOI
complete the analysis if required. The Appellate Body highlighted the importance of this kind of panel behaviour in US - Gambling by stating:
raised in accordance with paragraph 6 during panel proceedings'. This paper examines the exercise of judicial economy by panels. Jan Bohanes & Andreas Sennekamp, "Reflections on the concept of 'judicial economy' in WTO dispute settlement" in Sacerdoti etat, supra note 155,424 at 424. As can be seen, the AB has not itself the capacity to exert judicial economy, which does not mean that it is not taking steps in this direction, as will be seen below. 977 See US - Wool Shirts and Blouses, supra note 802 at 18-9. 978 See Bohanes & Sennekamp, supra note 976 at 425-31. 979 For a description of the technique of completion of analysis, see supra note 929 and accompanying text. 980 See Australia - Salmon AB Report, supra note 865 at para. 223. 981 See William J. Davey, "Has the WTO Dispute Settlement Exceeded Its Authority? A Consideration of Deference Shown by the System to Member Government Decisions and Its Use of Issue-Avoidance Technique". (2001) 4 J. of Int'l. Econ. L. 79 at 109 [Davey, "Deference"]. 391
Provided that it complies with its duty to assess a matter objectively, a panel enjoys the freedom to decide which legal issues it must address in order to resolve a dispute. Moreover, in some instances, a panel's decision to continue its legal analysis and to make factual findings beyond those that are strictly necessary to resolve the dispute may assist the Appellate Body should it later be called upon to complete the analysis, as, for example, in this case.982
In synthesis, although WTO panels have discretion to exercise judicial economy, they must be extremely careful when doing so in order to allow the Appellate Body to complete the analysis if panels' conclusions of inconsistency are later reversed.983 Such caution - which may lead also to exercise a lesser degree of judicial economy - did not exist for GATT panels, which could stop their assessment of the measures at issue whenever they thought convenient once the respective measure was found to be contrary to GATT and were encouraged to do so by the nature of the GATT dispute resolution process.
Given the existence of an appellate review, the use of judicial economy by the Appellate
Body is much more important in terms of the control that the AB can have to render decisions than that of panels, since it is at the appeal stage when the final words regarding the consistency of the measure at issue is to be pronounced. It is also at this stage that judicial economy may have its highest significance by allowing the Appellate Body to decide which claims it will assess in order to adjudicate the trade controversy at issue.
US - Gambling AB Report, supra note 871 at para. 344 [footnotes omitted]. 983 For a description of the meaning of the technique of completing the analysis see supra note 929 and accompanying text. 392
III.3.5.4.1.4.2 Appellate Body's Steps to Control the Agenda of Appeals by Exerting Judicial Economy
While the judicial economy is being reduced at the panel level, it has slowly been introduced by the AB at the appeal level, despite the apparent rigour of Article 17.12 of the DSU. The requirement for rigour is well illustrated by the following statement made by Bacchus:
Under the terms of the DSU, the Appellate Body does not choose which disputes are resolved in WTO dispute settlement. The Appellate Body does not choose which panel reports are appealed in WTO dispute settlement system. The Appellate Body does not choose which legal issues are appealed in those panel reports. Nor does the Appellate Body have the authority under the DSU to refuse to 'address' a legal issue when it is appealed.984
He also points out that the Appellate Body sees no room to deny an appellant the consideration of any of the issues it raises:
[U]nder Article 17 of the DSU ... the Appellate Body is required—'shall address'—every legal issue that is raised on appeal. I have heard one or two law professors argue that the Appellate Body, despite this clear language, is not required to address those issues. But I do not know of any member of the WTO that feels that way. ...985
Matsushita holds a similar view in this regard. He states:
[T]he DSU says that the Appellate Body needs to address each issue that was raised. Thus, compared with panels, the Appellate Body needs to deal with every issue. So judicial economy is not a privilege of the Appellate Body, at least in theory. But as far as the practical aspect is concerned, if you have, say, twenty issues, you might deal with some important issues heavily and deal with some others lightly.9 6
Despite such an understanding of Article 12.17 of the DSU, Appellate Body has begun to
assume more control over the issues it decides, freeing itself from a strict reading of this
Bacchus, "Appellators", supra note 156 at 507. Bacchus, "Roundtable", supra note 2 at 178-79. Matsushita, "Roundtable", supra note 929 at 187, 393 provision. During the first years it was a sound policy to really rale on each of the issues raised by appellants, since there was a need to clarify WTO law in every occasion in which this was necessary. However, after the first ten years, the body of WTO jurisprudence is already substantial and although multiple areas of the covered agreements still await their first interpretation, the need for clarification may not be as urgent as during the initial years. The building of the AB's institutional prestige was linked to how it decided every issue raised in each appeal. Today, there are areas of the covered agreements that may not need constant clarification and the reputation of the Appellate
Body has reached a level in which it can dispose of cases on using greater discretion with respect to the bases upon which it renders a decision.
The introduction of the AB's judicial economy is first evidenced in situations in which appellants have sought to reverse panels' legal findings on substantive grounds and also claimed that panels had violated Article 11 of the DSU when making those appealed findings by failing to make an objective assessment of the matter. The AB has repeatedly decided in recent years that if the substantive claim succeeded it did not have to assess whether panels had complied with Article 11. For instance, in its report in US - Gambling the Appellate Body refused to assess a claim of the United States related to the panel's violation of Article 11, and said:
We note that the United States also advances an appeal under Article 11 of the DSU in relation to the Panel's assessment of Antigua's prima facie case. The United States argues that the Panel failed to comply with its obligations under Article 11 of the DSU, not merely because it made an error in finding a prima facie case, but because of 'the egregious nature of the departure by this Panel from its assigned role of objective arbitrator.' We have already found error in the Panel's examination of the aforementioned state laws on the basis that Antigua had not made a prima facie case of inconsistency with Article XVI:2. Therefore, 394
in order to resolve this dispute, we need not determine whether, in assessing Antigua's prima facie case, the Panel also failed to satisfy its obligations under Article 11 of the DSU.987 [emphasis added]
A more recent application of this type of judicial economy can be found in the report in
EC - Selected Customs Matters. There the Appellate Body held:
The European Communities also claims that the Panel's findings regarding the administrative process leading to the tariff classification of blackout drapery lining were not based on an objective assessment of the facts as required by Article 11 of the DSU. As we concluded that the Panel erred in finding a violation of Article X:3(a) of the GATT 1994 with respect to the tariff classification of blackout drapery lining, we do not consider it necessary, for purposes of resolving this dispute, to rule on whether the Panel's findings regarding the administrative process in question were based on an objective assessment of the facts, as required by Article 11 of the DSU. [emphasis added]
This type of decision by the AB is understandable since if a panel's finding has been already reversed, there is nothing to add of value for the implementation of the recommendations and rulings of the DSB in the dispute in question, if the Appellate
Body declares that in making the finding the panel also failed to make an objective assessment of the matter.
A second type of exercise of judicial economy, which could be labelled "substantive judicial economy" took place in US - Steel Safeguards. There the AB declared that the
U.S. safeguards measures regarding the imports of tin mill products and stainless steel
987 US - Gambling AB Report, supra note 871 at para. 156 [footnotes omitted]. See also ibid at paras. 333, 337 for other examples in which the Appellate Body exerted judicial economy in this decision regarding claims of violation by the panel of Article 11. 988 EC - Selected Customs Matters AB Report, supra note 960 at para. 243. For another example see United States—Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina. Recourse to Article 21.5 of the DSU by Argentina (2007), WTO Doc. WT/DS268/AB/RW at para. 122 (Appellate Body Report), online: WTO
Safeguards?*9 The appellants asked the AB to declare that the safeguard measures related to these products also contravened Article 5.1 of the Agreement on Safeguards because they went beyond what was necessary to prevent or remedy the serious injury suffered by the U.S industry that produced like or directly competitive products.990 The AB exerted judicial economy and did not rule on this claim. It said:
[A]s for the two remaining products, namely, tin mill products and stainless steel wire ... as we have found that the measures applied to those two products are inconsistent with Article XIX: 1(a) of the GATT 1994 and with Articles 2.1, 3.1, and 4.2 of the Agreement on Safeguards, it is, in our view, not necessary, for the purposes of resolving this dispute, to rule on whether, in applying these measures, the United States also acted inconsistently with its obligation under Article 5.1 of the Agreement on Safeguards.
This is a more substantial exercise of judicial economy because the AB decides not to rule on a claim that is made against the lawfulness of the respondent's measure directly, and not against a finding of the panel, as is the case of the additional claims of violation of Article 11. For practical purposes, what the AB did in US - Steel Safeguards was to rule on certain claims made by the appellants against the measure in question, once it had found that it already contravened other provisions of the covered agreements.992
This is virtually the extent of the scope of judicial economy that GATT panels enjoyed
The AB found that all safeguard measures included those related to tin mill products and stainless steel wire had violated Article XIX: 1(a) of the GATT 1994 and Article 3.1 of the Agreement on Safeguards because the U.S. had failed to "provide a 'reasoned conclusion' that the "unforeseen developments" resulted in increased imports for each specific safeguard measure at issue ..." (US - Steel Safeguards AB Report, supra note 898 at para. 323). The AB also declared that the measures related to these products contravened Articles 2.1 and 4.2 of the Agreement on Safeguards because in the calculation of the increased imports affecting the U.S. industry, the U.S. had included all imports, while it had excluded from the imposition of safeguards those from Canada, Mexico, Israel and Jordan. See ibid, at paras 455-56. According to these provisions, authorities are precluded from finding the requirement of "increased imports" on the basis of all imports, to impose safeguards only to some of them. 990 See ibid, at para. 512. 991 Ibid, at para. 512. [footnotes omitted]. 396 and has some similarities with the extent of the agenda-setter character that the ICJ has recognized for itself in certain decisions.
The discretion offered by the judicial economy at the appellate stage may well be a necessary tool for the Appellate Body to control the agenda of disputes before it. An interpretation of Article 17.12 requiring the Appellate Body to rule on every single issue raised in an appeal may be too restrictive to effectively handle complex cases in the way it considers the most appropriate in light of the external environment of the dispute. In this type of dispute, the AB may well need the discretion to determine on the bases of which claims it will resolve the dispute, leaving aside those that it regards as inconvenient to decide on, given the relevant external environment of the case. This margin of discretion may be necessary and the Appellate Body granted to itself, although it does not make frequent use of it.
According to Ms. Hughes, Article 17.12 of the DSU imposes on the Appellate Body the duty to address all the issues appealed but it does not have to rule on each of them.994
This is a full definition of judicial economy at the appeal stage. So far, the Appellate
Body has not made such a broad statement regarding Article 17.12 of the DSU, but the case-law quoted in this section illustrates well that the Appellate Body has already
adopted decisions almost equivalent to a full definition of judicial economy.
992 It is this author's view that Appellate Body's refusal to address conditional appeals, when the condition attached by the appellant fails, cannot be considered as exercise of judicial economy. 993 The only difference may be that the ICJ does not provide the reasons why it does not rule on a claim, as was the case in Arrest Warrant. See above Part II.2.1.5.4.1.4 of Chapter II. 994 Hughes, Interview, supra note 888. 995 This is my own conclusion based on the AB case-law and on my interview with Ms. Hughes. 397
In sum, and as was mentioned, the Appellate Body is displacing the control over the agenda of disputes from panels to itself, which is an understandable decision given that the final word on disputes, in principle, lies on the Appellate Body and no longer on panels, as was the case during the GATT. The result of this ongoing transformation introduced by the AB to allow the Appellate Body to set the agenda of the dispute, once
Members have selected the issues that will the subject of the appeal. One may expect that in the great majority of cases, the Appellate Body will rule on each and every issue raised, but the self-transformation may be useful in those events in which for whatever reason that the Appellate Body regards significant, it may not need to rule on certain
996 issues.
III.3.5.4.2. The Appellate Body's Expansion of Its Jurisdiction and that of the WTO Dispute Settlement System
The second important general transformation introduced by the Appellate Body to the
WTO dispute settlement system has been the expansion of its jurisdiction. Such expansion has taken place, first, due to the creation of a new appeal stage within the WTO dispute
settlement system, not expressly contemplated by the DSU; and, second, due to the
The most common reason would be convenience. As is known, AB members perform their duties on part-time basis, and in certain periods of large number of appeals in the docket, it may well be a waste of time and of human resources to rule on claims that may not have a significant impact on implementation. In other situations much more politically sensitive or complex, judicial economy at the appellate level may be used to not to deal with certain issues that are controversial whose assessment may not be totally necessary to resolve the dispute in question. So far, however, such situation has not taken place but if it happens, the instrument deployed by the AB will be its discretion to exert judicial economy. Further analysis of this use of judicial economy is provided below in Part III.5.2 of this Chapter. 398 stretching of the jurisdiction of the system over issues that were considered to fall exclusively within the scope of WTO political organs.
III.3.5.4.2.1. The Expansion of the Appellate Jurisdiction: Appellate Review of Compliance Panel Reports
Part III.2 illustrated that once the DSB has adopted panels or AB reports, the time comes for the implementation phase by the losing Member. However, the WTO dispute settlement does not end there. In fact, there might be debate between the parties as to whether the implemented measures are or are not in conformity with the recommendations and rulings of the DSB. In this circumstance, the DSB provides for another stage: compliance panels pursuant to its Article 21.5 of the DSU. The DSB does not expressly contemplate for an appeal of compliance panel reports, and Article 22 seems to suggest that, after the compliance panel stage, is the only arbitration regarding the permitted level of retaliation follows.
However, a bilateral agreement between Brazil and Canada in the dispute in Brazil—
Export Financing Program for Aircraft - Recourse by Canada to Article 21.5 of the DSU, with the implicit but strong endorsement of the European Communities and the United
States as third parties in this case, recognizing the right to appeal the compliance panel report, was enough for the Appellate Body to extend appellate review to compliance panels reports pursuant to Article 21.5.997 As a result of the agreement between the
997 See Sylvia A. Rhodes, "The Article 21.5/22 Problem: Clarification Through Bilateral Agreements?" (2000) 3 J. of Int'l. Econ. L. 553. However, it is important to mention that bilateral agreements are no longer 399 appellant, the appellee, and the third parties, none of the parties raised the issue of the
Appellate Body's jurisdiction to hear the appeal. The litigated matter was whether or not the implementing measures complied with the DSB recommendations. The AB did not have any difficulty in extending the appellate review over compliance panel reports without having to ground such an extension in the provisions of the DSU.998 The entire
AB report in this case does not contain a single word regarding its jurisdiction to decide these appeals.
This is even more striking if one regards the considerable importance that the AB attaches to jurisdiction in general. In fact, this issue when related to panels is fundamental for the
Appellate Body. Indeed, in its report in United States—Anti-Dumping Act of 1916 the AB held that:
[A]n objection to jurisdiction should be raised as early as possible and panels must ensure that the requirements of due process are met. ... The vesting of jurisdiction in a panel is a fundamental prerequisite for lawful panel proceedings. ...9"
Moreover, the issue of jurisdiction is so important that the AB will deal with it even if the parties have not raised it on appeal. In fact, the AB held in US - Offset Act (Byrd
Amendment), after citing parts of the above quotation, that:
required to appeal compliance panel reports. They can be appealed directly by parties before the AB. See Mexico—Anti-Dumping Investigation of High Fructose Corn Syrup (HFCS) from the United States. Recourse to Article 21.5 of the DSU by the United States (2001) WT/DS132/AB/RW at para. 7 (Appellate Body Report), online: WTO
[I]n our view, the issue of a panel's jurisdiction is so fundamental that it is appropriate to consider claims that a panel has exceeded its jurisdiction even if such claims were not raised in the Notice of Appeal.1000
It is understandable that the AB in Brazil - Aircraft (Article 21.5 - Canada) decided not to evaluate the issue of its own jurisdiction, despite the considerable importance that it attaches to it. Certainly, to embark in an enquiry regarding the justification for the creation of a new stage in the WTO dispute settlement system would have raised serious concerns within Members regarding potential activist decisions with regard to other areas or issues of the system, which could explain the silence of the Appellate Body as to the justification in the DSU of the new stage.
As a matter of policy, the possibility of the Appellate Body's review of compliance panel reports ensures that disputes regarding compliance are resolved by the highest judicial body of the WTO. The Appellate Body's intervention in the compliance stage contributes to truly final determinations regarding whether a respondent effectively complied with the recommendations and rulings of the DSB in the case at issue, and there are no reasons to criticize the Appellate Body for this determination. However, it is beyond doubt that the
Appellate Body exercised its autonomy to transform itself in Brazil - Aircraft (Article
IUOU us _ Q^set Acf (Byrd Amendment) AB Report, supra note 813 at para. 208. 1001 The value of this new stage for the dispute settlement system has been recently increased due to the possibility it offers to correct some of the problems associated with the exercise by panels of false judicial economy. In effect, the Appellate Body determined in US - Oil Country Tubular Goods Sunset Reviews that complaining parties can raise claims not assessed by original panels before compliance panels, thereby solving some of the problems associated with the exercise of judicial economy. See US - Oil Country Tubular Goods Sunset Reviews AB Compliance Report, supra note 988 at Part V.E. In effect, such evaluation at the compliance stage is possible because respondents will have two instances to refute these claims, as is normally the case: before the compliance panel, and subsequently before the Appellate Body on appeal. Therefore, the new stage of dispute settlement system has made it possible that some claims not ruled on by panels as a result of their exercise of judicial economy may be subsequently raised by complainants in compliance proceedings. 401
21.5 - Canada) and fully steered this self-transformation by deciding not to provide any justification thereof. The transformation exists even if in this case the appeal was the result of an agreement between the parties. In effect, such agreement may not be sufficient to grant the AB jurisdiction in the absence of some authority in the DSU itself.
Given the unquestionable character of this novel systemic issue, it is highly likely that this self-transformation was adopted by the Appellate Body en banc and although its convenience may be virtually unquestionable and members' consensus around it may not have been difficult to gather, one can in any case imagine that the debate about the justification of this self-transformation, and ultimate the lack of it, may have produced some discussion.
III.3.5.4.2.2 Appellate Body's Extension of the Jurisdiction of the WTO Dispute Settlement System over Issues Deemed to Belong Exclusively to WTO Political Bodies
Another important self-transformation carried out by the AB is the expansion of the jurisdiction of the system to areas considered to be in the exclusive hands of WTO political bodies: such as balance of payment measures and assessment of regional trade agreements. The issue is not whether the AB decisions in these areas are right or wrong, but whether the AB entered into new areas when it had the clear option not to do so based on past GATT practice. Regardless of the quality of the legal reasoning, which in the cases to be discussed below is indeed very sophisticated, and one does not expect less from the
AB when taking such a complex and delicate determinations, the fact is that even some
AB members were aware of the fact that they were stepping into areas that had 402 traditionally fallen within the sphere of the Contracting Parties during the GATT or of
WTO political bodies. Ehlermann notes the significance of these cases.
Later cases decided by panels and the Appellate Body moved into new territory. They produced less-expected and sometimes very controversial results. Of particular importance in our context are, in my view, two groups of decisions: first, and foremost, those on unsolicited amicus curiae briefs, and, second, those on balance of payment problems (Article XVIII of GATT 1994) and on regional trade agreements (Article XXIV of GATT 1994). Both groups of decisions reveal tensions between the dispute settlement process, on the one hand, and political bodies and processes of the WTO, on the other.
Compared with the amicus curiae controversy, the criticism voiced against the Appellate Body's rulings in the already mentioned balance of payment and regional trade agreement cases is more limited, but potentially more explosive. ... The criticism is also directed against the Appellate Body's implicit ruling that a panel, and on appeal itself, are competent to examine the overall consistency of a regional trade agreement with Article XXIV of GATT 1994, though the conditions of this provisions are notoriously difficult to interpret and apply. ... WTO Members that are parties to regional trade agreements are groupings could therefore feel alarmed that the overall consistency of such agreements might become subject to the quasi-judicial control of panels and the Appellate Body.1002
It was shown before that Luhmann posited that autonomous systems are able to establish their boundaries, which in the case of courts operating as such systems means that they are able to set the scope of their jurisdiction. Appellate Body insiders, such as Sacerdoti, rightly think that the scope of the jurisdiction of the WTO dispute settlement system is a matter for the Appellate Body to decide. He says that "[t]he judicial branch of the WTO may de facto be called on to determine the limits of the WTO's jurisdiction."1003
Ehlermann, "Tensions", supra note 817 at 302. Sacerdoti, "WTO Dispute Settlement", supra note 780 at 47. 403
III.3.5.4.2.2.1. Jurisdiction of the WTO Dispute Settlement System over Balance-of- Payment Measures
The first expansion of the jurisdiction of the WTO dispute settlement system introduced by the Appellate Body took place in its report in India—Quantitative Restrictions on
Imports of Agricultural, Textile and Industrial Products.1 The salience of this case rests on the fact that both the panel and the Appellate Body were tested on a very sensitive issue: legislative vs. judicial powers within the WTO. The choices made by both the panel and the AB were unequivocal. Both determined that the scope of the dispute settlement system is vast and that it stops only in the face of express provisions limiting or excluding the DSB. Everything falling short of such express provisions is within the WTO judiciary's jurisdiction, regardless of overlaps with the functions of the General Council's or other WTO political bodies' competences.
The dispute involved certain import restrictions imposed by India, who alleged balance of payments difficulties that the United States considered to no longer have justification. As is widely known, Article XVIII.B allows developing country Members to impose import restrictions so as to protect their balance of payments. In the case of disagreement regarding the justification of specific balance of payments restrictions, the Understanding on Balance of Payments creates a political mechanism. Assessing the application of the
See India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (1999), WTO Doc. WT7DS90/R (Panel Report), online: WTO
Committee (BOP Committee) and the General Council.
Given the existence of some uncertainty regarding whether or not panels were competent to review the justification of balance of payments restrictions, Members approved in the footnote to the Understanding on Balance of Payments that:
Nothing in this Understanding is intended to modify the rights and obligations of Members under Article XII or XVIILB of GATT 1994. The provisions of Article XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding may be invoked with respect to any matters arising from the application of restricting import measures taken for balance-of- payments purposes.
In this case, India attempted to construct an interpretation according to which the General
Council and the BOP Committee would have jurisdiction to decide whether there was justification for the restrictions a Member imposed on the basis on balance of payments difficulties, and panels and the AB would decide whether these restrictions were being applied or administrated in a WTO-consistent way. This argumentation would have allocated competences between WTO judicial and political organs in a fashion that would have appeared to be respectful of the latter. A "diplomatic" AB might have found such an interpretation attractive. However, the AB did not endorse such an interpretation, pointing out that the terms of the footnote were very broad and assigned jurisdiction to the WTO judiciary regarding "any matters arising from the application of balance-of-payments restrictions." 1005
See ibid, at paras. 89-92 [Footnotes omitted]. In this regard, see India - Quantitative Restrictions Panel Report, supra note 1004 at paras. 5.58-59. 405
The Appellate Body went further and set forth a general principle regarding the jurisdiction of the WTO dispute settlement system: only express exceptions contemplated by the Appendix 2 to the DSU would be accepted.1006
However, the Appellate Body did not stop there. First, it rejected explicitly the existence of the principle of institutional balance between political and judicial organs within the
WTO, as India had posited. 1007 Second, the AB went so far as to instruct panels not to exert self-restraint when evaluating the justification of balance of payments restrictions.
During the oral hearing, India clarified its claim of legal error by stating that... panels ... should exercise judicial restraint with respect to these matters. With regard to this argument, we make the following observations. ... if the exercise of judicial restraint were to lead in practice, as India seems to suggest, to panels refraining from considering disputes regarding the justification of balance-of-payments restrictions, such exercise of judicial restraint would, as discussed above, be inconsistent with Article XXIII of the GATT 1994, as elaborated and applied by the DSU, and footnote 1 to the BOP Understanding.
The end result of this decision was the creation of a dual-track system for the evaluation of the justification for balance-of-payments restrictions. Complaining Members have at their
1006 See India - Quantitative Restrictions AB Report, supra note 1004 at para. 86. The AB endorsed the panel's view expressed in the argument 5.84 of its report. to07 The AB pointed out: In support of this proposition, India refers to the GATT 1947 panel reports in EC - Citrus, EC - Bananas I and Korea - Beef. The panel reports in EC - Citrus and EC - Bananas I are both unadopted. Moreover, these two reports concern the relationship between Article XXIII and Article XXIV on regional trade arrangements, not that between Article XXIII and Article XVIII on balance-of-payments restrictions, which is the relationship at issue in this case. The panel in Korea - Beef, far from supporting the interpretation suggested by India, was explicit in adopting die "dual track" approach. Moreover, the panel in that case did not limit itself to merely espousing the conclusions of the BOP Committee. In addition to taking into account the deliberations and conclusions of the BOP Committee, that panel looked to other sources of information, including data originating from Korea and the IMF, evaluated the evidence before it, and concluded that Korea's balance-of- payments restrictions were no longer justified. We, therefore, conclude that the three reports cited by India do not support its contention that there is a principle of institutional balance, as defined by India, in WTO law. India - Quantitative Restrictions AB Report, supra note 1004 at paras. 99-100 [Footnotes omitted]. 1008 Ibid, at paras. 106-8. 406 disposal the judicial review based on Article XXIII and the political review based on
Article XVIII.B.1009
As can be seen, the Appellate Body broadened the jurisdiction of the WTO dispute settlement system.1010 However, just as astonishing is the style of the decision. Aware of its possibility of avoiding India's arguments regarding self-restraint and the principle of institutional balance within the WTO, given by its jurisprudence according to which the
WTO judiciary does not have to respond to all the arguments presented by the parties to disputes, the Appellate Body could well have decided the case without referring to such arguments. Instead, the Appellate Body used all its freedom of argumentation to determine that there is no principle of balance of powers within the WTO applicable in
Article XXVIII.B disputes or in any other type of WTO dispute. Anyone familiar with the history and practice of the GATT and the WTO will easily realize the deep meaning of
See ibid, at para. 97. The availability of dispute settlement proceedings regarding this type of controversy is not a neutral issue for the WTO political organs. In fact, such availability will allow requesting Members to block consensus in the BOP Committee and the General Council in order to resort exclusively to the judicial proceedings, thereby creating obstacles to the effective operation of the BOP Committee and the General Council. This is what occurred in India's case, where the United States blocked consensus and started DSB proceedings. See Frieder Roessler, "The Institutional Balance Between the Judicial and the Political Organs of the WTO", http://www.ksg.harvard.edu/cbg/Conferences/trade/roessler.htmat7. It is understandable, though, that such a decision also receives praise. Indeed, Davey, himself director of the Legal Affairs Division by the time the India - Quantitative Restrictions panel report was issued, suggests that the jurisprudence set forth in this case does not affect the balance of political or juridical rights. See Davey, "Deference", supra note 981 at 87. 1010 There was a GATT precedent, Korea—Beef, where a GATT panel ruled regarding the justification of balance-of-payments restrictions. Although the India - Quantitative Restrictions panel and AB drew extensively on this decision so as to try to show that it was only following past GATT practice, there was a substantial difference between the two cases. In Korea-Beef, before the panel issued its report, the contracting parties had already determined that Korea's balance-of-payment situation was adequate and that the balance-of-payments restrictions were no longer justified. The Korea - Beef panel had therefore at its disposal a previous GATT political statement. This was not the case in India - Quantitative Restrictions. The stretching of the WTO judiciary's jurisdiction exists here because it has jurisdiction even though no WTO political statement has been issued. 1011 See EC- Poultry AB Report, supra note 969 at para. 135. 407 these words, in an organization where diplomacy in practical terms, still plays a significant role.
Given the institutional repercussions of this report over the relations between the AB and
WTO political organs, it would not be surprising that this expansion of jurisdiction and its justification generated significant deliberation among AB members, and was reached with full deliberation of the AB en banc, although at the end a Division was in charge of rendering the report. The activism of this report both in terms of its result and reasoning is surprising for a nascent institution operating under close assessment by WTO Members.
Neither the collegial decision-making process of the AB nor the external environment - and its foreseen resistance - operated as a constraint in this particular case.
III.3.5.4.2.2.2 Extension of the Jurisdiction of the WTO Dispute Settlement System over Free Trade Areas and Custom Unions
The second clear example of the AB's decision transforming the WTO dispute settlement
system is its report in Turkey - Textiles.1012 Article XXIV of the GATT 1994 and its 1994
Understanding in paragraph 4 allow WTO Members to be party to custom unions or trade
agreements and regard them a positive tool to promote free trade. However, Article XXIV
also establishes that such a right is not absolute, but conditional.
Accordingly, the provisions of this Agreement [GATT 1994] shall not prevent, as between the territories of Members, the formation of a customs union or of a
1012 See Turkey - Textiles AB Report, supra note 910. The origin of the dispute was the imposition by Turkey of quantitative restrictions on imports from India of several categories of textile and clothing products. Such restrictions were the result of the application of the Turkey-EC custom union in order to allow Turkey to be considered as having the same commercial policy as the European Communities on trade in this sector. India considered that que restrictions were inconsistent with Articles XI and XIII of the GATT 1994 and Article 2.4 of the Agreement on Textiles and Clothing. Both the paneld and the AB declared such inconsistency. See ibid, at paras. 3 & 63. 408
free-trade area or the adoption of an interim agreement necessary for the formation of a customs union or of a free-trade area; Provided that (a) with respect to a customs union, or an interim agreement leading to a formation of a customs union, the duties and other regulations of commerce imposed at the institution of any such union or interim agreement in respect of trade with contracting parties not parties to such union or agreement shall not on the whole be higher or more restrictive than the general incidence of the duties and regulations of commerce applicable in the constituent territories prior to the formation of such union or the adoption of such interim agreement, as the case maybe;1013
The Turkey - Textiles panel understood that the dispute had an institutional dimension
regarding the allocation of competences between, on one hand, the WTO political bodies,
in this case the Committee on Regional Trade Agreements, and on the other hand, the judicial organs: panels and the Appellate Body. Specifically, the Turkey - Textiles panel
showed deference to the Committee on Regional Trade Agreements by limiting its jurisdiction:
[W]e note that the Committee on Regional Trade Agreements (CRTA) has been established, inter alia, to assess the GATT/WTO compatibility of regional trade agreements entered into by Members, a very complex undertaking which involves consideration by the CRTA, from the economic, legal and political perspectives of different Members, of the numerous facets of a regional trade agreement in relation to the provisions of the WTO.... As to whether panels also have the jurisdiction to assess the overall WTO compatibility of a customs union, ... We consider that regional trade agreements may contain numerous measures, all of which could potentially be examined by panels, before, during or after the CRTA examination, if the requirements laid down in the DSU are met. However, it is arguable that a customs union (or a free-trade area) as a whole would logically not be a "measure" as such, subject to challenge under the DSU.1014
1013 WTO Legal Texts, supra note 4 at 458. Article XXIV establishes an exception to one of the tenets of the GATT/WTO: the Most Favoured Nation Treatment principle. According to it, in the words of Jackson, "[i]t is an obligation to treat activities of a particular foreign country or its citizens at least as favourably as it treats the activities of any other country ..." Jackson, World Trading System, supra note 778 at 161-62. By virtue of this exception, generous concessions granted by a WTO Member to others pursuant to regional or bilateral free trade agreements do not have to be extended to WTO Members not parties to them. 1014 Turkey—Restrictions on Imports of Textile and Clothing Products (1999), WTO Doc. WT/DS34/R at paras. 9.52-53 (Panel Report), online: WTO
However, the Appellate Body did not endorse such self-restraint, expressing its opposition briefly but unequivocally, despite the fact that this finding had not been appealed. The expansion of the jurisdiction of the WTO dispute settlement system is contained in the following obiter dicta:
[T]he Panel maintained that "it is arguable" that panels do not have jurisdiction to assess the overall compatibility of a customs union with the requirements of Article XXIV. We are not called upon in this appeal to address this issue, but we note in this respect our ruling in India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products on the jurisdiction of panels to review the justification of balance-of-payments restrictions under Article XVIILB of theGATT 1994. ...1015
What the AB stated here is that its analysis regarding the expression "any matters arising from the application of restrictive import measures taken for balance-of-payments purposes," which appears in the footnote of the Understanding on the Balance-of-
Payments Provisions of the General Agreement on Tariffs and Trade 1994, wholly applies to the same expression "any matters arising from the application" appearing in paragraph
12 of the Understanding on Article XXIV, which set forth that "the provisions of Articles
XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement
Understanding may be invoked with respect to any matters arising from the application of those provisions of Article XXIV related to customs unions, free-trade areas or interim
in European Community—Tariff Treatment on Imports of Citrus Products from Certain Countries in the Mediterranean Region dealt with this issue in similar terms. See Roessler, supra note 1009 at 2. 1015 Turkey - Textiles AB Report, supra note 910 at para. 60. Interesting is the fact that, by making such a reference, the Appellate Body did not apply its well-established principle of not expressing its views regarding non-appealed findings set forth in the very decision the AB referred to: India -Quantitative Restrictions. The question whether Article XV:2 of the GATT 1994 requires panels to consult with the IMF and to consider as dispositive specific determinations of the IMF was debated at length by the parties before the Panel. However, the Panel did not consider it necessary, 410 agreements leading to the formation of a customs union or a free-trade area." The consequence of this note is that panels must conduct an evaluation of the WTO consistency of regional trade agreements when Article XXIV is used as a defence by parties to these agreements in order to justify trade restrictions that are inconsistent with other provisions of the covered agreements.1016
In other words, the AB engaged in a self transformation in Turkey - Textiles by deciding that the vague authority in Paragraph 12 of the Understanding on Article XXIV permitting matters arising from the application of those provisions in Article XXIV relating to customs unions and free trade areas to be dealt with under the DSU, constituted a grant to panels and the AB of the authority to assess the compatibility of the customs unions and free trade areas with the criteria in Art. XXIV:5 as interpreted by the AB. The result in this case was that the AB engaged in a comprehensive analysis of the criteria that must be satisfied for a free trade agreement or a custom union to fall within Article XXIV so as to
for the purposes of this dispute, to decide this issue. As this finding of the Panel is not appealed, we abstain from taking any position on it. India - Quantitative Restrictions AB Report, supra note 1004 at para. 152. 1016 The AB held: [0]n the basis of this analysis of the text and the context of the chapeau of paragraph 5 of Article XXIV, we are of the view that Article XXIV may justify a measure which is inconsistent with certain other GATT provisions. However, in a case involving the formation of a customs union, this 'defence' is available only when two conditions are fulfilled. First, the party claiming the benefit of this defence must demonstrate that the measure at issue is introduced upon the formation of a customs union that fully meets the requirements of sub-paragraphs 8(a) and 5(a) of Article XXIV. And, second, that party must demonstrate that the formation of that customs union would be prevented if it were not allowed to introduce the measure at issue. Again, both these conditions must be met to have the benefit of the defence under Article XXIV... . Turkey - Textiles AB Report, supra note 910 at paras. 58-59. It must be noted though that the AB did not rule on whether the Turkey-EC custom union was in conformity with Articles XXIV:5(a) and XXIV:8(a). See ibid, at para 60. For a general evaluation see James H. Mathis, Regional Trade Agreements in the GATT/WTO: Article XXIV and the Internal Trade Requirement (The Hague: T.M.C. Asser Press, 2002) at 193. It is important to mention the institutional risks the AB would face when interpreting Article XXIV. To Steinberg, an AB decision having the consequence of declaring European Union trade agreements 411 permit a Member's measure that would otherwise be inconsistent with the Most Favoured
Nation obligation, and in so doing in effect the AB allowed panels to engage in an assessment of the compatibility of the free trade agreement with Article XXIV, a kind of assessment which had previously been the exclusive responsibility of the Committee on
Regional Trading Agreements.
Although the AB grounded this decision on GATT law, which is certainly mandated, this does not mean that this dispute did not have an institutional dimension. The AB stepped into a territory Members considered their own, to matters be handled within the political organs of the Organization.
Finally, the point this section would like to emphasize is not that the Appellate Body was right or wrong in interpreting Article XXIV, but that it chose to expand the jurisdiction of the dispute settlement system with regard to regional trade agreements when it had enough arguments not to do so, which were additionally supported by past GATT panel reports.
Ehlermann himself recognizes that the application of the above-mentioned provision is difficult to interpret and apply, which could have lent support for the endorsement of the position taken by the panel in this particular case. The Appellate Body had a persuasive option not to step into the domain of the WTO Committee on Regional Trade Agreements but decided to do so and expanded the jurisdiction of the dispute settlement system in real terms.
excluding agriculture as being WTO-inconsistent would likely trigger a correction of such a decision by political means. See Steinberg, "WTO Judicial Lawmaking", supra note 812 at 268. 412
III.3.5.4.2.3 Summary
As a partial conclusion, it can be said that the Appellate Body has introduced two major transformations to the WTO dispute settlement system. First, it has strengthened the control panels and the Appellate Body itself have over disputes. And, second, it has extended the jurisdiction of the system. But a whole analysis of the self-transformations would be incomplete if it did not include the significant transformation that the Appellate
Body refused to make.
III.3.5.4.3 Self-Transformations that Did Not Take Place
IH.3.5.4.3.1 The Self-imposed Limits to the Expansion of the Jurisdiction of the WTO Dispute Settlement System
The Appellate Body has a certain degree of autonomy to set the boundaries of the WTO dispute settlement system. It can adopt decisions aimed at protecting its jurisdiction, as it did in its reports in Mexico - Taxes on Soft Drinks to avoid the jurisdiction being affected by other international tribunals' concurrent jurisdiction to hear and adjudicate WTO
Members' disputes. The Appellate Body can also expand the jurisdiction of the system to share it with WTO political organs, as it did in Turkey - Textiles and in India -
Quantitative Restrictions. In this section we discuss how the AB can refuse to extend such jurisdiction, as was the case in Mexico - Taxes on Soft Drinks when the Appellate Body prevented the WTO dispute settlement system from being used for the direct enforcement of international treaties other than the WTO covered agreements. The case offered the AB the opportunity to transform the system by expanding even more its jurisdiction, but the
AB exerted its self-transformative autonomy and refused to do it. 413
To recall, Mexico's measures in this case were enacted with the aim of forcing the United
States to comply, with what Mexico considered to be its United States' NAFTA obligations. In consequence, Mexico alleged in Mexico - Taxes on Soft Drinks that its measures, even though inconsistent with the national treatment obligation in GATT
Article III, fell within the scope of the exception provided by Article XX(d). This precept provides.
Subject to the requirements that such measures are not applied in a manner which would constitute a means of arbitrary or unjustified discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: ... (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement.. ,101
In other words, according to Mexico, trade-restrictive measures could be lawfully deployed against another WTO Member to force it to comply with other international treaties. For Mexico, said the AB, 'the terms "laws and regulations" are broad enough to
include international agreements such as the NAFTA'.1018
If it had been successful, the exception based on Article XX(d) had the potential effect of
expanding this jurisdiction to such an extent that it would have transformed the DSB into
a body in whose hands would have been the resolution of disputes related to other
international agreements, in those cases in which lack of compliance with them had led
other Members to adopt WTO inconsistent measures. The Appellate Body, for many good
reasons, did not let the WTO dispute settlement system have such a wide jurisdiction.
WTO Legal Texts, supra note 4 at 455. Mexico -Taxes on Soft Drinks AB Report, supra note 106 at para. 64. 414
In our view, the terms 'laws and regulations' refer to rules that form part of the domestic legal system of a WTO Member. Thus, the 'laws and regulations' with which the Member invoking Article XX(d) may seek to secure compliance do not include obligations of another WTO Member under an international agreement.1019
The policy reason invoked by the AB in support of this conclusion was set out in its
Mexico - Taxes on Soft Drinks report:
[M]exico's interpretation would imply that, in order to resolve the case, WTO panels and the Appellate Body would have to assume that there is a violation of the relevant international agreement (such as the NAFTA) by the complaining party, or they would have to assess whether the relevant international agreement has been violated. WTO panels and the Appellate Body would thus become adjudicators of non-WTO disputes. ... this is not the function of panels and the Appellate Body as intended by the DSU.1020
As was seen, the Appellate Body expanded the jurisdiction of the WTO dispute settlement system to areas previously covered by GATT or WTO political organs, thereby stretching its boundaries. However, it does not hold the inference that one of the transformations introduced by the AB is the unfettered extension of the
Ibid, at para. 70. The AB went on to say in support of this conclusion that the indicative list in Article XX(d) were all domestic regulations (See ibid) and that the distinction in Article X:l between 'law and regulations' and 'international agreements' meant that the former did not include the latter. (See ibid, at para. 71). 1020 Ibid, at para. 78 [footnotes omitted]. It is though important to make clear that the AB report in Mexico - Taxes on Soft Drinks does not entirely prevent Members from adopting measures aimed at forcing other Members to comply with other international treaties. Such a far-reaching conclusion would not have support in this report. In effect, the consequence of the AB report in Mexico - Taxes on Soft Drinks is that the WTO DSB is not readily available on the basis of Article XX(d) to enforce other international obligations because of the mere fact that they are being breached. This would have opened the door for a huge flow of trade disputes related to non-trade conflicts under other international treaties. However, the possibility of WTO Members using trade measures to force compliance with other international treaties still exists, but it remains indirect, because it would have to be based on an exception provided for in Article XX other than that pursuant to Article XX(d), and therefore the breach of the other international obligation would not be a matter for a WTO panel or the Appellate Body to decide. Put differently, WTO Members had two ways of trying to enforce international obligations pursuant to other international treaties through the adoption of trade-restrictive measures before the Mexico - Taxes on Soft Drinks AB report: (i) direct measures based on Article XX(d) of the GATT 1994 and (ii) indirect means on the basis of any of the other exceptions pursuant to Article XX. Mexico - Taxes on Soft Drinks barred the first way, the one that posed significant risks for the DSB, and the second remains possible but exceptional. This availability does not considerably expand the jurisdiction of the DSB, given its exceptional character. Indeed, in order to save the measure from WTO inconsistency, the adopting Member has to show that it falls within the ambit of any other exception to Article XX. The burden of proof is considerably higher in this 415 jurisdiction, because such expansion has had limits, as the AB report in Mexico -
Taxes on Soft Drinks well illustrates. The AB exerted its self-transformative autonomy and decided not to expand the jurisdiction of the WTO dispute settlement system to the extent offered by this dispute.
III.3.5.4.3.2 AB's Lack of Solution to the Sequencing Problem of Articles 21.5 and 22.6 of the DSU
The second transformation that did not take place is associated with the so called
"sequencing problem" of the application of Articles 21.5 and 22 of the DSU. Without delving into the details of the problem,1021 it suffices to say that if a prevailing complaining Member is of the view that the respondent's measures to comply with the
adopted panel and AB reports of the case are still WTO inconsistent, it can request the
establishment of a panel to decide on such consistency. These so-called Article 21.5
compliance panels have 90 days from the date of referral of the matter by the complaining
Member to render their decision, which will normally be after the expiry of the reasonable period of time to implement the recommendations and rulings of the DSB. However,
Article 22.6 compels arbitrators calculating the amount of concessions or other WTO
obligations a member is authorized to suspend to render their awards within 60 days after
such expiry.1022 As a matter of logic, the authorization to suspend concessions should take
place once there has been a declaration by the Article 21.5 compliance panel that the
scenario than if the Member had only to demonstrate that an international obligation provided for in another international treaty was breached by the complaining party in WTO dispute settlement proceedings. 1021 For a detailed explanation of the sequencing problem, see David Palmeter & Petros C. Mavroidis, Dispute Settlement in the World Trade Organization. Practice and Procedure 2d. ed. (Cambridge: Cambridge University Press, 2004) at 278-84. 1022 It is worth mentioning that by virtue of both provisions the members of Article 21.5 panels and the Article 22.6 arbitrators may be the same individuals that formed the original panel. 416
measures taken to comply by the respondent are unlawful. The problem arises if the
Article 21.5 panel takes 90 days to determine such validity, which makes it impossible for
Article 22.6 arbitrators to render their award within the timeframe imposed by Article 22.6
and on the basis of a determination of the measures taken to comply with the reports of the
case. In EC - Bananas III the arbitrators attempted to solve the problem by stating that they could assess compliance as part of the process leading to the calculation of the
amount of suspension.1023 In a subsequent case, the Appellate Body disagreed with the
arbitrators' approach, and declared that it was for WTO Members, not panels or the
Appellate Body, to address this problem. In its report in United States—Import Measures on Certain Products from the European Communities the Appellate Body recognized the
systemic problem but declared that:
[W]e are cognizant of the important systemic issues of the relationship between Articles 21.5 and 22 of the DSU. As the United States correctly points out in its appellee's submission, the terms of Articles 21.5 and 22 are not a 'model of clarity' and the relationship between these two provisions of the DSU has been the subject of intensive and extensive discussion among Members of the WTO. We note that, on 10 October 2000, eleven Members of the WTO presented a proposal in the General Council to amend, inter alia, Articles 21 and 22 of the DSU.
In so doing we observe that it is certainly not the task of either panels or the Appellate Body to amend the DSU or to adopt interpretations within the meaning of Article IX:2 of the WTO Agreement. ... Determining what the rules and procedures of the DSU ought to be is not our responsibility and not the responsibility of panels; it is clearly the responsibility of the Members of the WTO.1024
European Communities—Regime for the Importation, Sale and Distribution of Bananas. Recourse to Arbitration by the European Communities under Article 22.6 of the DSU (1999), WTO Doc. WT7DS27/ARB/ECU at para 4.5 (Decision by the Arbitrators), online: WTO
At least with regard to the solution to the sequencing problem, the Appellate Body decided, surely after having carried out a self-observation, that it did not fall under the scope of its judicial functions, and left it in the hands of the political organs of the WTO by means of authoritative interpretations, or to WTO Members through new treaty law.1025
III.3.5.5 Limits to the Appellate Body's Autonomy to Introduce Changes to the WTO Dispute Settlement System
III.3.5.5.1 The Appellate Body is not Self-Starter
The Appellate Body can neither control nor predict with precision what panel reports will be appealed. For instance, the Appellate Body was expecting until the last day the appeal of the panel report in the dispute between Mexico and Guatemala in Mexico—
Anti-Dumping duties on steel pipes and tubes from Guatemala, which was not finally
1097 appealed. The same can be said of the panel report in European Communities—
Measures Affecting the Approval and Marketing of Biotech Products, which for the nature of the interest at stake was considered as being a likely subject of appeal,1029 but no appeal took place.
1025 Those calling for the application of an international political questions doctrine should take note of this AB decision, which resembles such doctrine as it is understood in U.S. constitutional law to some extent. In effect, although the Appellate Body does not leave in the hands of WTO political organs the dispute in its entirety, it has left the specific issue of sequencing problem to them to resolve. 1026 Mexico—Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala (2007), WTO Doc. WT/DS331/P/R (Panel Report), online: WTO
Likewise, the fact that the AB is not a self-starter also applies in the sense that it cannot rule on claims or defences not made or raised by complainant or defendant parties. Even if the AB might find that a party had a good claim that it did not make, it could not pronounce on it, in principle. In this regard, Bacchus expressed this limit in the following way.
Frequently, I have said, 'Well, the Americans had a good claim here—why didn't they bring it?' But I am not free to say that of India or the European Union or any of the others. They make their own decisions about what issues they want to raise on appeal.. ."103°
However, it is important to say, as it was also the case with the International Court of
Justice, the fact that the AB is not a self-starter has not prevented it from self- transforming, as was the case of the self-transformation carried out in the report in Turkey
- Textiles in which the AB declared, as was shown, that the WTO dispute settlement system may assess the WTO consistency of regional trade agreements.
In sum, lack of self-starting capacity operates in general as a restraint on the Appellate
Body's autonomy to introduce transformation to the WTO dispute settlement system, but
it has not deterred the Appellate Body from exercising such autonomy when it regards it necessary.
III.3.5.5.2 Self-Observation as a Restraint to the Autonomy of the Appellate Body to Transform the WTO Dispute Settlement System
It has been said that self-observation constitutes a restraint on the extent of the autonomy
of some courts to self-transform, in the sense that courts may refuse to self-transform in 419 certain instances due to the institutional concerns regarding the effects that certain self- transformations may have for the court. Self-observation operated as a restriction on the autonomy of the AB to transform the WTO dispute settlement system in the Mexico -
Taxes on Soft Drinks, when it refused to extend its jurisdiction to cover disputes originated in the violation of treaties other than the WTO covered agreements. The AB simply has no capacity to handle these controversies, because they would virtually exhaust its quite limited resources.
Therefore, there is no doubt that self-observation by the Appellate Body in its report in
Mexico - Taxes on Soft Drinks led to the refusal to become an adjudicator of disputes in which Members attempted to use WTO inconsistent measures to try to force compliance with other international treaties based only on the need to seek compliance with these treaties. Such self-observation as a constraint is wholly consistent with the AB having control over the exercise of its autonomy to transform the WTO dispute settlement, and it is a restriction that the AB shares with the ICJ, which as was seen above in Part
II.2.1.5.4.6 of Chapter II also refused to expand its jurisdiction to adjudicate disputes on the exclusive basis of an alleged violation of jus cogens.
III.3.5.5.3 The Collegial Decision-Making Process as an Internal Constraint on the Exercise of the AB's Autonomy to Transform the WTO Dispute Settlement System
The two level collegial decision-making process of the Appellate Body may operate as a constraint on the exercise of the Appellate Body's autonomy to transform the WTO
James Bacchus, "Roundtable", supra note 2 at 178. 420
dispute settlement system, although there is no concrete evidence in this regard.1031 First of all, significant institutional transformations may well be considered "novel systemic
issues", whose general orientation are set by the Appellate Body en banc, with all the
internal costs of operation involved in the need to ensure, at least, the support of a majority of members or to reach a consensual formula.
Sometimes, this more strict decision-making process may prevent the self-transformation to be introduced or may attenuate its extent. It is hard to prove, but seen in restrospective,
it is likely that the negotiations between Appellate Body members regarding amicus curiae briefs determined not only the self-transformation itself, but also its pace and use. It may not be mere speculation to say that the state of the affair - at least during the first years of the self-transformation - may indicate that the approach was this: self-transform the system, but do not freely exploit the self-transformation. This could have been seen as
a solomonic formula to gather internal enough support for the decision to self- transform.1"^ If this was the case, the AB collegial decision-making process may have
acted as a constraint on the use of the above-mentioned self-transformation.
Although there is no direct evidence of the constraining effect on the AB's self-
transformative autonomy of its collegial decision-making process, the fact that such effect has existed for another international court, such as the ICJ, suggests that it is likely that the
same takes place for the AB. Finally, the facts associated with the lack of use of amicus
1031 As was already mentioned, former AB members have not provided much detail about the operation of the collegial decision-making processes that led to any of the transformation referred to above. But in addition, and given that there was no separate opinions in any of the reports containing them, there is no public, direct evidence that debates about the scope of the transformations took place. 421
curiae permits speculation that lack of use was the concession that the majority of the AB
members gave to the minority in order to achieve agreement on the self-transformation in
this regard, without having separate opinions in US - Lead and Bismuth II AB Report,1033 the decision in which the transformation took place.
III.3.5.5.4 The External Environment as a Constraint on the Autonomy of the Appellate Body to Introduce Changes to the WTO Dispute Settlement System1034
Mitsuo Matsushita, a founding member of the AB, along with Schoenbaum and Mavroidis
describe in the following terms the apparent lack of formal mechanisms constraining the
Appellate Body.
[T]he Appellate Body has the final word in a dispute settlement since the report of the Appellate Body in a dispute is adopted automatically by negative consensus voting at the DSB, and the winning party always favours its adoption. Even if the Appellate Body makes a mistake, there is no mechanism to correct it. In a domestic jurisdiction, if the Supreme Court makes a mistake, the legislature can enact a law correcting it. However, in the WTO process, the political branch (the General Council and the Ministerial Conference) does not commonly exercise this power.
This means that there are no effective 'checks and balances' operating within the WTO ...1035
1032 JJ^ js my Qwn assumption an(j it was not suggested either directly or implicitly by any of the Directors of the Appellate Body Secretariat whom I interviewed. 1033 See US - Lead and Bismuth II AB Report, supra note 914 at para. 39. 1034 Part III.3.4.2 of this chapter illustrated how and why the AB observes its external environment. The purpose of the foregoing Part was simply to show that the AB carries out the observation of the external environment, and therefore it satisfies Luhmann's requirement to operate as an autonomous system. This Part shows another angle of the relationship between the AB and the external environment: the impact that the latter has and has had on the AB's exercise of its autonomy to transform the WTO dispute settlement system. However, both issues are intertwined and cannot be fully separated, because it is due to the fact that the AB observes the external environment that this is able to act as a constraint on the exercise of the former's self-transformative autonomy. Had the AB not observed the external environment, this would not hamper such autonomy. 1035 Mitsuo Matsushita, Thomas J. Schoenbaum & Petros C. Mavroidis, The World Trade Organization. Law, Practice, and Policy (Oxford: Oxford University Press, 2003) at 43. 422
But the apparent lack of constraining effect of the external environment on the Appellate
Body is not only associated with the fact that WTO Members do not in practice reverse an
Appellate Body finding or conclusion. Members do not have at their disposal the punishing tools they possess in relation to the ICJ either.
For instance, WTO Members cannot withdraw from the DSU as a reaction to an adverse
Appellate Body report, since to do so would mean leaving the WTO.1036 Therefore, this
type of punishment available with regard to the ICJ does not exist regarding WTO panels
and the AB. Likewise, non-appearance before panels and the AB is not an option for
respondent WTO Members, as it is with regard to the ICJ, since the jurisdiction of the
system is compulsory. In the hypothetical event of a non-appearance, the WTO dispute
settlement process would operate in its entirety and, if required by the given complainant
Member, it would make use of DSU mechanisms to induce compliance. Thus, non
appearance is not a threat for WTO panels and the Appellate Body.
The same can be said as to the possibility of Members reacting against adverse AB reports
by resorting to other means of resolution of disputes outside the WTO system, as was the
case of France, which ultimately preferred arbitration to the Court to resolve disputes with
other States.1038 In effect, although it is possible that some trade disputes that could be
resolved through the WTO may not come before the WTO dispute settlement system,
because for instance the dispute can be also adjudicated by the dispute resolution system
1036 rp^g wro covered agreements are a single undertaking therefore it is an all or nothing issue for all WTO Members. 1037 See Sacerdoti, "WTO Dispute Settlement", supra note 780 at 55. 1038 See text accompanying supra note 699. 423 of a regional free trade agreement, convincing another WTO Member counter-part to go outside the system may be possible in theory but unlikely in practice. This is because the
WTO system has already a body of jurisprudence and institutional reputation that makes it at least possible for members to gauge their possibilities with regard to trade disputes.
Also, the WTO system has a compliance mechanism which, although it still has some voluntary elements, in any case may be seen stronger than any other ad-hoc mechanism
States may use to resolve trade disputes, and that obviously would not be available for the prevailing State should it choose to go outside the WTO dispute settlement system.
However, this is not to say that the Appellate Body may not face a punishment of this kind at all. In effect, Article 25 of the DSU grants WTO Members the possibility to resolve their disputes through arbitration, and specifically provides them with the enforcement tools provided for in Article 21 and 22 of the said Agreement. However, the punishing
Member must get the consent of its disputant party to resort to arbitration, and such consent may not be assumed to be easily available.1040
This is not to say that for different reasons WTO Members may agree to ensure that certain issues will not be resolved through the WTO dispute settlement system. When Members do so, they are not punishing WTO panels or the Appellate Body but simply assuming full control over the existing or potential conflicting issue. Such situation took place in the Kimberly waiver, approved by the WTO General Council. (WTO, General Council, Waiver Concerning Kimberly Process Certification Scheme for Rough Diamonds (24 February 2003), WTO Doc. G/C/W/432/Rev.l). The Kimberly agreement provided a certification process of diamonds and it is aimed at preventing their trade when it is used to finance illegal armed activities mostly in Africa. The agreement established a process of certification for diamonds, and allowed parties to ban trade in this good with States which did not comply with the process. Given that the agreement could be seen to violate GATT Article XI, the parties sought and obtained a waiver, which means that there will not be any legal debate in the WTO on the basis of the application of the agreement, thereby removing it from the reach of the WTO dispute settlement system. See in this regard, Howse & Esserman, supra note 784 at 76-77. As can be seen, the waiver prevents a WTO panel and the AB from dealing with the agreement, but it has nothing to do with punishment of the latter, in particular. 1040 Article 25 of the DSU has not been used with this purpose so far. For an evaluation of the possibilities of this provision without taking into account the angle mentioned here, see. Laurence Boisson de Chazournes, "Arbitration at the WTO: A Terra Incognita to be Further Explored" in Charnovitz et ai, supra note 767, 181 at 195-201. This is not obviously to say that every time Article 25 is used the given parties are punishing the AB for previous decisions. 424
However, one should assess all these elements that indicate a great discretion to decide cases, in light of the fact that the Appellate Body operates closer to the political organs of the WTO and to the WTO Membership in general than any other international tribunal. In fact, while the ICJ is based in The Hague and the United Nations in New York, the AB and the WTO function in the very same building, so it is by no means surprising that
Members' comments, criticisms, and functioning may well be very quickly perceived by the Appellate Body members and its Secretariat. In fact, Mr. Zdouc recognized that the
Appellate Body worked close to the political organs of the WTO.1041 Such statement may reveal that Members may be in a position to act as a constraint in the ability of the
Appellate Body to transform to certain limited extent the Dispute Settlement System and the covered agreements, although this is not obviously to say that WTO Members, by virtue of this proximity, may affect the independence of the Appellate Body, which is certainly not the case.1042
Equally important is the fact that trade liberalization is an ongoing project for WTO
Members, and therefore it is the object of successive rounds of negotiations to deepen it. It
is expected that from time to time and within the frame of such negotiations, WTO
Members may also negotiate about introducing changes to the DSU that may affect either the Appellate Body as an institution or the dispute settlement system as a whole. Such
1041 Interview with Werner Zdouc held in Geneva on August 24 2007 [Zdouc, Interview]. 1042 Ms. Hughes highlighted that during the first years, the members of the Appellate Body took the decision not to attend any public or private meeting in which delegates were present. Only with the occasion of the celebration of the first ten years of operation of the Appellate Body, its members decided that the institution enjoyed enough credibility to allow them to be present in public events attended also by delegates of WTO Members. Hughes, Interview, supra note 888. 425 possibility may indeed put breaks on the Appellate Body's limited autonomy to introduce modifications to the system on its own motion, for the fear of triggering adverse reactions by Members that may materialize in treaty law.1043
In addition to the general constraining effect that external actors enjoy by virtue of these two circumstances, there are at least two visible illustrations of how external actors do indeed constrain specifically the Appellate Body's autonomy to transform the WTO dispute settlement system. First, the constraining effect of the external environment is more or less evident regarding the amicus curiae debate. The WTO Membership's opposition did not prevent the Appellate Body from transforming the system by allowing the acceptance of these unsolicited briefs, but it had played a role concerning how this self-transformation is used by panels and, specifically, the Appellate Body. Second, the
Appellate Body's decision not to offer the solution to the sequencing problem could also well be associated with the need to calm down WTO Membership. Given that novel procedural issues are debated and decided by all of the members of the Appellate Body, and that other institutions like the U.S. Supreme Court are characterized as going two step forward and one step backward,1044 one is tempted to speculate that the Appellate Body's
This is not to say however that negotiations prevent the Appellate Body from exerting this autonomy or from contributing to the development of the covered agreements, since the Appellate Body, as Zdouc mentioned to this author, usually resolves very specific issues and negotiations of any type among Members are more conceptually oriented. More specifically, Ms. Hughes emphasized that sometimes even negotiations did not affect Appellate Body's deliberations. That was the case in the United States—Subsidies on Upland Cotton in which the Appellate Body internally decided that its mandate was to adjudicate the dispute on the basis of the extant WTO provisions exclusively. The Appellate Body consciously set aside the political facet of this dispute embedded in the impact such negotiations could have over the Appellate Body, or viceversa. Hughes, Interview, supra note 888. However, a different calculation may take place regarding revisions of the DSU. Finally, Steinberg mentions another tool that Members can deploy in order to constrain the AB. They can use their their power to appoint AB members in a way that excludes those candidates with expansive views of the WTO dispute settlement system. See Steinberg, "WTO Judicial Lawmaking", supra note 812 at 264. 1044 See McCloskey, supra note 84 at 253. 426
self-transformative restraint in US - Certain EC Products was a step back in the context of the significant ongoing self-transformations that were taking place at the time of this report.
This assumption is reasonable because the pace of the transformations introduced by the
Appellate Body during this year was impressive. First, the Appellate Body declared on
May 20, 2000 in its report in US - Lead and Bismuth II that it could accept unsolicited amicus curiae briefs. Then in its Article 21.5 report in Brazil - Aircraft on July 21 2000, the Appellate Body recognized the possibility of appeals of Article 21.5 panel reports.
Subsequently, on November 8, 2000 the Appellate Body issued the specific procedures for the reception of amicus curiae briefs in the EC - Asbestos dispute,1045 which triggered the
strong opposition of virtually all of the WTO Membership. Certainly, the sequencing problem in US - Certain EC Products, and the "unequivocal" statement therein on
December 11, 2000, was the perfect occasion the Appellate Body had to put brakes to the
exercise of its autonomy to transform the WTO dispute settlement system.
It can be posited as a final conclusion that the Appellate Body possesses a limited
autonomy to transform the WTO dispute settlement system, and has exercised it, and is
continuing to do so. It can be said that the extent of the self-transformations introduced so
far by the Appellate Body is not uniform regarding each of them. For instance, there are
more or less completed self-transformations, such as the strengthening of the WTO quasi- judiciary fact finding powers, or the establishment of its freedom of argumentation. But 427 there are also ongoing self-transformations, such as the gradual use of amicus curiae briefs by the Appellate Body. Finally, the Appellate Body has made clear what transformations will not come from its reports, such as the solution to the sequencing problem.
Finally, such transformative autonomy has constraints both internal and external, which have in effect operated as such during the first years of existence of the Appellate Body. In consequence, it is possible to say that the Appellate Body operates as an autonomous
system in the sense that satisfies the condition of being able to self-transform in light of the relevant external environment, subject to these constraints.
Now this thesis turns to discuss the influence that the Appellate Body has had on external
systems, as the final condition to establish that in fact it has operated as an autonomous
system in the terms described by Luhmann.
III.3.6 The Appellate Body's Influence over External Autonomous Systems: The Appellate Body Case-Law Role in Moving the World Trading System Towards the Protection of the Environment1046
The Appellate Body has made significant contributions to outside external systems.
Among those is the contribution that the Appellate Body has made to make the WTO legal
system more concerned for environmental issues. It is important to highlight that such
See European Communities—Measures Affecting Asbestos and Asbestos-Containing Products (2000), WTO Doc. WT/DS135/9 (Communication from the Appellate Body), online: WTO
[w]hile allowing for the optimal use of the world's resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.10
The WTO covered agreements include a few provisions that have a bearing on the environment. Article 6.1, Annex II paragraphs 2(a), 8 (a), and 12 of the Agreement on
Agriculture establishes that certain payments for government environment programs may be exempted from Members' subsidy reduction obligations; Articles 5.2 and 6.2 of the
Agreement on the Application of Sanitary and Phytosanitary Measures incorporates environmental conditions as part of the parameters for risk assessment. Article 2.2 of the
Agreement on Technical Barriers to Trade expressly sets forth the protection of the environment as an objective of the Agreement; and Article 27.2 of the Agreement on
Trade-Related Aspects of Intellectual Property Rights provides for an exemption to patentability if this is required to avoid serious injury to the environment.1048 In addition to these provisions, the WTO has a Committee on Trade and Environment, created by a 1994
Ministerial Decision, charged with the tasks, among other, of identifying relationships
The purpose of this section is to present a broad description of the main contributions of the AB in order to strengthen the concerns of the world trading system for the environment. A detailed assessment of such contribution is well beyond of the scope of this thesis. 1047 As Charnovitz highlights, this preambular language has become one of the pillars on which the AB and other WTO adjudicators have grounded their environmentally friendly jurisprudence. See Steve Charnovitz, "The WTO's Environmental Progress" (2007) 10 J. of. Int'l. Econ. L. 685 at 688 [Charnovitz, "Progress"]. 1048 See generally ibid, at 688-89 and Fiona Macmillan, WTO and the Environment (London: Sweet & Maxwell, 2001). 429
between trade and environmental measures, and of making recommendations regarding
rules able to foster a positive interaction between the protection of the environment and
the promotion of international trade, while preserving a sustainable development.1049
However, the most significant contribution to the preservation of the environment has
come from the jurisprudence of the AB regarding the use of Article XX exceptions to justify trade measures aimed at achieving this goal. Broadly speaking, such measures may be justified on the basis of Articles XX(b), XX(g) and the Chapeau of Article XX of the
GATT 1994, which provide:
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures:
(b) necessary to protect human, animal or plant life or health; ...
(g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption.
In its jurisprudence regarding the interpretation of Article XX the AB has established a
two tier test to assess whether the measure at issue is or not justified by Article XX. First,
the text of the measure must fall under the scope of one of the exceptions provided for in
this provision. Second, the application of the measure must conform with the
requirements set forth in the chapeau of Article XX.1050
1049 See ibid, at 12-13. 1050 See Howard Mann, "Of Revolution and Results: Trade-and-Environment Law in the Afterglow of the Shrimp-Turtle Case" (1998) 9 Y.B Int'l Env L. 28 at 33. The GATT era had its environmental case law, but guided by a complete prevalence of trade over environment. For an evaluation of this case-law, see Nita 430
III.3.6.1. The Appellate Body and Environmental Protection under GATT Article XX(b)
In relation to the availability of Article XX(b) to protect the environment, the impact of the AB jurisprudence is wide. First of all, the AB recognized in EC - Asbestos that the
Members can set the level of protection of health and the environment they wish to achieve, and it is possible to set a zero tolerance regarding risk on health.1051
Concerning the "necessity" requirement of Article XX(b) the AB held that a measure is necessary "if an alternative which [a Member] could reasonably be expected to employ and which is not inconsistent with other GATT provisions is [not] available to it."1052
Delving into the content of this requirement, the AB has discarded the most stringent meaning: absolute necessity of the measure to achieve the desired goal. This has also been the position of the AB regarding the necessity test under Article XX(d), which can be extended to apply to Article XX(b). In Korea—Measures Affecting Imports of Fresh,
Chilled and Frozen Beef the AB held:
We believe that, as used in the context of Article XX(d), the reach of the word 'necessary' is not limited to that which is 'indispensable' or 'of absolute necessity' or 'inevitable'. Measures which are indispensable or of absolute necessity or inevitable to secure compliance with certainly fulfil the requirements of Article XX(d). But other measures, too, may fall within the ambit of this exception. As used in Article XX(d), the term 'necessary' refers, in our view, to a range or degrees of necessity. At one end of this continuum lies 'necessary' understood as 'indispensable'; at the other end, is 'necessary' taken to mean as 'making a contribution to'. We consider that a 'necessary measure is,
Ghei, "Evaluating the WTO's Two Step Test for Environmental Measures Under Article XX" (2007) 18 Colo. J. Int'l. Envtl. L. & Pol'y 117 at 135-38. 1051 See EC - Asbestos AB Report, supra note 874 at para. 168. See also Brazil -Retreaded Tyres AB Report, supra note 963 at para. 140. 1052 EC _ Asbestos AB Rep0rt^ supra note 874 at para. 171. 431
in this continuum, located significantly closer to the pole of 'indispensable' than to the opposite pole of simply 'making a contribution to'.10
To understand the scope of the necessity test under Article XX(b) is important to look at the AB jurisprudence regarding a similar requirement of the GATS exceptions of Article
XIV(a), which the AB has grounded on GATT Article XX.1054 In its report in US -
Gambling, the AB established that the test of necessity includes, first, the contribution of the measure to the goals sought, and second, the restrictive impact of the measure on international trade.1055 To assess the second, an evaluation of possible alternatives must be undertaken.1056 The final determination regarding the lawfulness of the measure in light of its reasonably alternatives is adopted on the basis of a process of weighing and balancing.1057 The process of evaluating necessity is influenced by the importance of the
1053 Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef (2001), WTO Doc. WT/DS161/AB/R at para. 161 (Appellate Body Report), online: WTO
"the more vital or important [t]he common interests or values pursued, the easier it would be to accept as 'necessary' measures designed to achieve those ends."1058
Turning to the WTO consistent reasonably alternative measures that a Member may have at its disposal, which makes unavailable the use of Article XX(b) to justify the environmental measures at issue, the AB has adopted a practical approach. In US -
Gambling the AB pointed out that alternative measures which can only theoretically be implemented do not qualify as reasonably available measures.1059 Nor do measures that do not reach the same level of protection sought by the measure in question.1060
Equally relevant for practical purposes, is the AB finding in US - Gambling that the party seeking to prove the necessity of its measure does not have the burden of demonstrating
A comparison between the challenged measure and possible alternatives should then be undertaken, and the results of such comparison should be considered in the light of the importance of the interests at issue. It is on the basis of this "weighing and balancing" and comparison of measures, taking into account the interests or values at stake, that a panel determines whether a measure is "necessary" or, alternatively, whether another, WTO- consistent measure is "reasonably available". US - Gambling AB Report, supra note 871 at para. 307. See also Brazil - Retreaded Tyres AB Report, supra note 963 at para. 143. Marceau calls attention to the difficulties this balancing, pursuant to Article XX(b), and the other one established under the Chapeau, may pose for Members, panels, and even the AB when either designing, applying or assessing the lawfulness of the given measure in order to ensure its justification under Article XX(b). See Gabriel Marceau, "L'Affaire 'CE - Amiante' et la nouvelle jurisprudence de l'Organ d'appel de l'OMC concernant les risques a la sante" (2000) XXXVIII The Canadian Yearbook of International Law 213 at 227 - 28. This is why, according to Jackson, some States considered that such balancing should be left to WTO Membership. See John H. Jackson, "Justice Feliciano and the WTO Environmental Cases: Laying the Foundations of a 'Constitutional Jurisprudence' with Implications for Developing Countries" in Charnovitz et al., supra note 767, 29 at 41 [Jackson, "WTO Environmental Cases"]. 1058 Korea - Various Measures on BeefAB Report, supra note 1053 at para. 163. 1059 See US - Gambling AB Report, supra note 871 at para. 307. 433 that there is no reasonably available alternative to achieve its goals. The AB made clear that
[A] responding party need not identify the universe of less trade-restrictive alternative measures and then show that none of those measures achieves the desired objective. The WTO agreements do not contemplate such an impracticable and, indeed, often impossible burden.1061
Inferred from what the AB stated in US - Gambling, for a respondent party to discharge its burden of proving the availability of the exception of its environmental measure, the respondent Member must demonstrate that the measure is "[significantly closer to the pole of 'indispensable' than to the opposite of simply making a contribution to".1062 Once this is done, the burden of proof is switched to the complainant, which has to indicate what reasonably alternative measure(s) the respondent had,1063 and to prevail the respondent Member must convince the panel or the AB that the alternative is not reasonably available.1064
As can be seen, the jurisprudence of the AB offers Members wide possibilities for the design of measures aimed at protecting the environment that although inconsistent with the covered agreements are justified under the exception of Article XX(b). First of all, the threshold of the test of "necessity" is not that the measure must be "indispensable" to
1060 See ibid, at para. 307. 1061 Ibid, at para. 309. See also Brazil - Retreaded Tyres AB Report, supra note 963 at para. 156. It is worth mentioning that the GATT panel in United States—Restriction on Imports of Tuna that established such requirement in the following terms: The United States had not demonstrated ... —as required of the party invoking an Article XX exception—that it had not exhausted all options reasonably available to it to pursue its dolphin protection objectives through measures consistent with the General Agreement... United States—Restriction on Imports of Tuna (1992), GATT Doc. DS21/R, at 199 39th Supp. B.I.S.D (1992) 155. 1062 jjg _ Qambnng AB Report, supra note 871 at para. 310. 1063 See ibid, at para. 311. See also Brazil - Retreaded Tyres AB Report, supra note 963 at para. 156. 1064 See US - Gambling AB Report, supra note 871 at para. 311. See also Brazil - Retreaded Tyres AB Report, supra note 963 at para. 156. 434 achieve the objective. Second, it is not for the implementing Member to demonstrate that there is no reasonably available alternative, this burden lies first in the complainant. And, third, given the well recognized importance of the protection of the environment as an important value within the WTO, measures aimed at ensuring it may satisfy more easily the "necessity" test, on the basis of the above-mentioned AB's statement in Korea -
Beefm5
III.3.6.2. The Appellate Body and Environmental Protection under GATT Article XX(g)
First of all, the Appellate Body in US - Gasoline declared the air to be a natural resource, thereby opening the door for the application of the exception of Article XX(g) of the
GATT/1994 to environmental regulation aimed at protecting air quality.1066
1065 See supra text accompanying note 1058. 1066 j^ facts Qf me case amj ^e ma;n claims of Brazil and Venezuela are summarized as follows: The GATT violations considered in the Gasoline case involved the methods adopted by the EPA [Environmental Protection Agency] for determining [the baselines for each refiner, importer or blender of gasoline]. Under the Gasoline Rule, domestic refiners of gasoline and foreign refiners exporting at least 75 percent of their 1990 gasoline production to the United States are permitted to determine an individual baseline in accordance with one of three methods. Method 1 involves actual data on the quality of gasoline produced by the refiner, while Methods 2 and 3 involve calculations based on refinery production inputs. Foreign refiners that do not export 75 per cent of production to the United States are permitted to use only Method 1 to calculate an individual baseline. If data to support a Method 1 calculation are not available to such a refiner (which is usually the case), the EPA assigns a statutory baseline based upon the industry's average gasoline production in 1990. Venezuela and Brazil challenged the Gasoline Rule under the [WTO dispute settlement system] ... [They] claimed that the Gasoline Rule violated (1) Article I of the GATT, providing for most-favoured-nation treatment, by discriminating against an identifiable group of countries exporting gasoline to the United States; (2) Articles III: 1 and 111:4 of the GATT, providing for national treatment, by applying less favourable treatment to imported than to domestic gasoline; and (3) Article 2 of the WTO Agreement on Technical Barriers to Trade ..., regarding restrictions on trade contained in 'technical regulations". Venezuela and Brazil argued that the denial to gasoline importers of the opportunity to establish an individual baseline more favourable than the statutory baseline constituted less favourable treatment in violation of these obligations ... Maury D. Shenk, "United States—Standards for Reformulated and Conventional Gasoline" (1996) 90 A.J.I.L. 669 at 670. 435
The Appellate Body's acceptance of the US framing of air quality regulation as falling under Article XX(g) had the positive outcome of easing the possibility of application of the exception to this type of regulation, since it did not have to meet the necessity requirement of Article XX(b), which was the test that worried many observers and which
in their view unduly constrained the possibility of this type of regulation being favoured by the exception. 067
Second, the Appellate Body has broadly interpreted the term natural resource to comprise
living (sea turtles) and non-living (air) resources.1068 Also the AB has determined that the
scope of this term will be assessed in light of the evolution of international environmental
law, ensuring that the ambit of Article XX is not set in stone but evolves according to the
dynamics of such field of law. This, in itself, is a significant contribution to a permanent
dialogue between these two bodies of law.1 In its report in US - Shrimp, the AB made
one of the most important statements of its brief history:
The words of Article XX(g), 'exhaustive natural resources', were actually crafted more than 50 years ago. They must be read by a treaty interpreter in the light of contemporary concerns of the community of nations about the protection and conservation of the environment...
The AB determined in US - Gasoline that the U.S. regulation was inconsistent with the covered agreements and was not justified under the exception provided by GATT Article XX. Although it fell under the exception set forth in Article XX(g), something the panel had rejected, the application of the regulation violated the Chapeau of Article XX. Despite this outcome, the AB made important findings regarding how Members can design and apply measures affecting international trade aimed at protecting the environment. 1067 See Mann, supra note 1050 at 29. The AB itself has recognized that the requirement of "relation" of Article XX(g) is less stringent than that of "necessity' under Article XX (d). See Korea - Various Measures on Beef AB Report, supra note 1053 at para. 161. Such comparison may be understood to also apply to the 'necessity' requirement under Article XX(b). 1068 See Schoenbaum, supra note 864 at 37. 1069 See ibid, at 37-38. See also for praises of this finding, Charnovitz, "Progress", supra note 1047 at 700. 436
From the perspective embodied in the preamble of the WTO Agreement, we note that the generic term 'natural resources' in Article XX(g) is not 'static' in its content or reference but is rather 'by definition', evolutionary. It is, therefore, pertinent to note that modern international conventions and declarations make frequent references to natural resources as embracing both living and non-living resources.. .1070
Commenting on this finding, McRae states that the AB's
[E]xpansive interpretation of the concept of 'exhaustible natural resources' has meant that this provision [Article XX(g)] will have contemporary relevance in reconciling trade and environment conflicts ...
Additionally, regarding Article XX(g) the Appellate Body held in US - Shrimp that the nexus between the measure and the exhaustible resource is a flexible one. In fact, the AB found that the US regulation was aimed at protecting a resource, sea turtles, which migrate through US waters. The AB used the expression "reasonably related" to the ends, as the qualification that meets the threshold of relation between the measure at issue and the goal pursued.1072
The third significant contribution of the AB to the incorporation of environmental concerns within the world trading system under Article XX(g) is the suppression of the prohibition of the adoption of regulation that distinguishes products on the basis of their
1070 y$ _ £/jnmp Aft Report, supra note 98 at para. 131. (footnotes omitted). See in this regard, John H. Knox, "The Judicial Resolution of Conflicts Between Trade and Environment" 29 Harv. Envtl. L. Rev. 1 at 55. The US - Shrimp dispute was brought by India, Malaysia, Thailand and Pakistan against the U.S. due to its prohibition of the importation in to the U.S. market of certain shrimp and certain shrimp products when fishing vessels under the jurisdiction of the exporting Member did not use devices to protect sea turtles. Although the AB declared WTO inconsistent the U.S. regulation it set a very important framework for the harmonization of trade and environment, as will be seen below. 1071 McRae, "GATT Article XX", supra note 844 at 227. 1072 jy£ _ £/jrjmp AB Report, supra note 98 at para. 141. In US - Gasoline the AB held that the threshold was "substantial relationship ... a close and genuine relationship of ends and means, .." US - Gasoline AB Report, supra note 423 at 19. Commenting on these two labels, the AB refers to them without saying that they contain different thresholds in Korea - Various Measures on Beef. See Korea - Various Measures on 437 process and production methods in environmental matters. For these purposes, Member can make such distinctions and their regulations may fall under the exceptions of Article
XX and the Chapeau, provided that they satisfy all its additional requirements. In US -
Shrimp the AB held:
It is not necessary to assume that requiring from exporting countries compliance with, or adoption of, certain policies (although covered in principle by one or other of the exceptions) prescribed by the importing country, renders a measure a priori incapable of justification under Article XX. Such an interpretation renders most, if not all, of the specific exceptions in Article XX inutile, a result abhorrent to the principles of interpretation we are bound to apply.
III.3.6.3. The Appellate Body and Environmental Protection under the Chapeau of GATT Article XX1074
As was already mentioned, the legal analysis with regard to the availability of Article XX to justify inconsistent environmental measures starts with the demonstration that they fall under Articles XX(b) or (g). Once this is found to exist, then the application of the
measures is assessed in light of the requirements of the Chapeau of Article XX. The AB has also made significant findings regarding the Chapeau with very important
repercussions for the application of trade restricted environmental measures.
The AB has determined what criteria the application of measures must meet in order to
avoid being considered as an "arbitrary or unjustified discrimination between Members
Beef AB Report, supra note 1053 at para. 161 See in this regard, McRae, "GATT Article XX", supra note 844 at 226. 1073 US - Shrimp AB Report, supra note 98 at para. 121. For a detailed analysis of this significant breakthrough of the AB jurisprudence, see Steve Charnovitz, "The Law of Environmental 'PPMs' in the WTO: Debunking the Myth of Illegality" (2002) 27 Yale J. of Int'l. L. 59. 1074 For a general discussion of the AB early case-law regarding the Chapeau, see McRae, "GATT Article XX", supra note 844 at 229-33. 438 where the same conditions prevail, or a disguised restriction on international trade...". In
its Brazil - Retreaded Tyres, the AB summarized its previous jurisprudence and held:
Analyzing whether a discrimination is arbitrary or unjustifiable usually involves an analysis that relates primarily to the cause or the rationale of the discrimination. ...
The Appellate Body Reports in US - Gasoline, US - Shrimp, and US - Shrimp (Article 21.5 - Malaysia) show that the analysis of whether the application of a measure results in arbitrary or unjustifiable discrimination should focus on the cause of the discrimination, or the rationale put forward to explain its existence. ...
In our view there is .. an abuse [of Article XX], and, therefore, there is arbitrary or unjustifiable discrimination when a measure provisionally justified under a paragraph of Article XX is applied in a discriminatory manner 'between countries where the same conditions prevail', and when the reasons given for this discrimination bear no rational connection to the objective falling within the purview of a paragraph of Article XX, or would go against that objective. The assessment of whether discrimination is arbitrary or unjustifiable should be made in the light of the objective of the measure. ...
Accordingly, the AB declared in Brazil - Retreaded Tyres, that an exception of the ban on
the imports of retreaded tyres benefiting MERCOSUR countries and adopted to comply
with a MERCOSUR arbitral award was arbitrary. The arbitrariness was found because the
MERCOSUR exception allowed imports of retreaded tyres from MERCOSUR countries
and therefore went against the objective of the ban of protecting the health and
environment by reducing the generation of additional waste tyres and therefore of
minimizing the health and environmental risk associated with them.1076 In practical terms,
exceptions to trade restrictive measures aimed at protecting the environment must also
seek to further this objective, which highlights even more the availability of the AB's
interpretation of the Chapeau to preserve the environment.
Brazil - Retreaded Tyres AB Report, supra note 963 at paras. 225-27. 439
The second element in the AB jurisprudence related to the Chapeau and positive for the relationship between Multilateral Environmental Agreements (MEAS) and WTO law is the fact that the application of trade restrictive measures authorized by MEAS1077 to ensure environmental protection may be covered under the exception of Article XX. In effect, the key issue that determined the inconsistency of the US measure in US - Shrimp was not its unilateral character, but the fact that it discriminated among States, and because negotiations were pursued by the United States with some States while not with others. According to Brack:
The clear implication is that trade measures are permissible if they are agreed and applied multilaterally in a way that does not distinguish arbitrarily between countries. This suggests quite strongly that ME A trade measures between parties, such as the CITES licence requirements, would be judged to be WTO- compatible. Since all the parties involved would have agreed to the trade
w,b See ibid, at para. 227. 1077 Brack describes in the following terms the use of trade measures to protect the environment explicitly authorized by MEAS. Nearly 200 MEAs currently exist, of which over twenty incorporate trade measures (that is, restraints on the trade of particular substances or products either between parties to the treaty and/or between parties and non-parties). [T]hey include some of the most important agreements in the environmental field, such as the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1978 Montreal Protocol on Substances That Deplete the Ozone Layer (Montreal Protocol), and the 1989 Basel Convention on the Control of Transboundary Movements of Harzardous Wastes and Their Disposal (Basel Convention)... Duncan Brack, "The Shrimp-Turtle Case: Implications for the Multilateral Environmental Agreement—World Trade Organizarion Debate" (1998) 9 Y.B. Int'l Env. L 28 at 13. Brack also illustrates the significance of the trade measures to obtain the environmental result sought by the given MEA. The experience of the three major MEAS ... shows the value of trade measures. In the case of CITES, no species listed in the appendices to the treaty have become extinct since their listing ... Since the Basel Convention entered into force, the worst forms of hazardous waste dumping on developing countries have largely ended. In the case of the Montreal Protocol, there is direct evidence from some countries that that the trade provisions were indeed an important factor in persuading them to accede to the treaty, an, in general, the protocol has proven to be a highly effective MEA with its aim-the recovery of the stratospheric ozone layer to its preindustrial state- likely to be achieved in the next century ... Ibid, at 14. 440
restriction, it would be difficult to argue that it represented 'arbitrary or unjustifiable discrimination'.
But the Appellate Body went further and by way of inference it also set the frame for permitting Members to lawfully take even unilateral action extraterritorially to protect the environment, as long as there is a clear process of negotiations with the parties involved, and it can be shown that some States are not engaged in the negotiations in good faith.
Trade measures aimed at forcing these Members to have similar effects to those of the
adopting State may, depending on how they are applied, fall under the scope of the
Chapeau of Article XX.1079 Thus, trade measures provided in MEAS against non-parties to them may still be considered WTO consistent if implemented under such criteria.1080
Additionally, the Appellate Body has permitted the protection of the environment beyond the Members' territory, thereby rejecting the approach of the GATT Tuna report that had
explicitly prohibited measures of such scope.1081
A more critical issue is the Appellate Body's recognition of the possibility of unilateral
measures aimed at protecting the environment according to standards of developed
country Members. The Appellate Body considered in US - Shrimp that the U.S. measures required the adoption of methods identical to those required by the U.S. fishing industry,
and such requisite was considered to be inconsistent with the Chapeau. The AB held:
1078 Ibid, at 16. See also Schoenbaum, supra note 864 at 39. 1079 See Ghei, supra note 1050 at 144. See also Jackson, "WTO Environmental Cases", supra note 1057 at 41. 1080 See Schoenbaum, supra note 864 at 39. For some authors, such measures should not be exempted. See Brack, supra note 1077 at 16. 1081 See Wirth, supra note 862 at 42. 441
[I]t is not acceptable, in international trade relations, for one WTO Member to use an economic embargo to require other Members to adopt essentially the same comprehensive regulatory program, to achieve a certain policy goal, as that in force within that Member's territory, without taking into consideration different conditions which may occur in the territories of those other Members.1082
To some although the jurisprudence of the AB regarding environmental issue has been an important breakthrough, it should not be overestimated, because, as Mann argues, so far the majority of measures aimed at protecting the environment, although considered to fall under flexible interpretations of the exceptions of Article XX, have been declared inconsistent under the test of the Chapeau. For this author, the end result may not be so promising as initially thought. However, to measure the record of the Appellate Body regarding the relationship between trade and environment only on the basis of the rate of environmental measures declared inconsistent ignores the ongoing regulatory dialogue between the AB and the WTO Members regarding how to design and apply environmental measures with trade impact. The Appellate Body case law has been introducing a framework of rules in a step-by-step process in which different possibilities for the application of Article XX have appeared, which in turn allows Members to assess in advance the content of measures of this nature and how to apply them with the view to complying with such jurisprudence. It is the existence of this growing trade and environment case law which makes a significant contribution to the world trading system and its relation with the need of protecting the environment. Commenting on the practical quality of this jurisprudence, Marceau pointed out that "[t]he WTO has reconciled trade
US - Shrimp AB Report, supra note 98 at para 164. See Mann, supra note 1050 at 33. 442 and environment, and I doubt that any negotiation could improve the overall balance established by this jurisprudence."1084
As this brief analysis has shown the importance of the Appellate Body jurisprudence allowing the world trading system to operate with a regard for Members' environmental concerns has been considerable, and evidences beyond doubt how the Appellate Body has moved the WTO legal system in an environmental friendly direction. Such jurisprudence meets the last of Luhmann's requirements, which permits the conclusion that the
Appellate Body has indeed operated as an autonomous system.
III.4 Conclusions Regarding the Operation of the Appellate Body as an Autonomous System
As was seen, the Appellate Body satisfies all the conditions identified in Chapter I for its operation in ways similar to autonomous systems, as defined by Luhmann, and paramount among them is the Appellate Body's limited autonomy to introduce transformations to the
WTO dispute settlement system.
First, the Appellate Body has a double identity as a typical adjudicative institution charged with the duty to resolve discrete trade disputes without creating or diminishing WTO
Members' rights and obligations. However, the Appellate Body also has the important responsibility of clarifying the covered agreements by virtue of Article 3 of the DSU,1085
1084 Gabriel Marceau, "The WTO is NOT a Closed Box" in Charlesworth & Donovan, supra note 434, 29 at 31. See Knox, supra note 1070 at 1. 1085 The Appellate Body has not exclusive power in this regard, because ad-hoc panels can also perform such task. However, no doubt, the most important clarification takes place when it comes from the AB. 443 and by doing this it shapes the rules for Members' future behaviour. Despite the fact that the DSU prescribes this dual identity, it is the Appellate Body itself which in each case determines the judicial or quasi-legislative scope of its decisions. Sometimes, the
Appellate Body restricts its findings and conclusions to the facts of the case in question.
Sometimes, it makes pronouncements with the view to specifying the content of provisions of the covered agreements. In other words, it is for the Appellate Body to determine how it performs its duties.
Second, the Appellate Body carries out self-observation when operating. Such self- observation is evidenced in how the founding members of the Appellate Body were aware of the need to build its institutional reputation, and how to this end they adopted strict criteria for the interpretation of the covered agreements marked by a permanent effort to be loyal to the text of the agreements. The establishment of collegiality of the decision making as a paramount feature of the internal operation of the Appellate Body is also linked to self-observation in the sense that it has allowed the Appellate Body to ensure coherence in its decisions, despite the fact that it does not take decisions en banc but by divisions. However, self-observation has also been seen in Appellate Body's concrete decisions in which such self-observation guided its interpretations. This was the case of the Appellate Body report in Mexico - Taxes on Soft Drinks in which it prevented the jurisdiction of the WTO dispute settlement system from being eroded by allowing panels to refuse such jurisdiction in favour of other international tribunals or adjudicators. 444
As to the third requirement for the operation as autonomous system, recursivity, there is little doubt that the Appellate Body satisfies this criterion by interpreting and reinterpreting its prior jurisprudence and by being coherent with it, or by introducing the adjustments it has regarded necessary.
The Appellate Body also observes its external environment. Such observation is first of all mandated by the DSU to a certain extent by imposing on Appellate Body members the duty to be informed regarding the activities carried out by WTO political organs. Second, such observation must be performed in order to carefully look at the WTO Membership's reactions to reports, in order to prevent on the whole the use of trade rounds of negotiations to introduce by treaties undesired institutional changes from the Appellate
Body's perspective. Third, concrete evidence of observation of the external environment is provided by specific Appellate Body's statements in which it has anticipated world public opinion's interpretations of reports in order to clearly convey their scope and meaning, as was specifically the case in US - Shrimp.
Fifth, the Appellate Body meets the requirement of having autonomy to introduce transformations to itself and to the WTO dispute settlement system. This is so because the
Appellate Body satisfies the three conditions derived from Lumann's theory for the existence of this autonomy. First, the Appellate can adopt decision regarding itself and the
WTO dispute settlement system, such as the scope of its jurisdiction, among many others.
Second, before deciding on a self-transformation, both the indeterminacy of the covered agreements and the gaps of the DSU offer the Appellate Body a set of possible 445 alternatives to decide the institutional issue in question. And third, it is Appellate Body which steers its self-transformations. Their extent, scope and rationale is determined through the operation of its two level collegial decision-making process. In this regard, this Chapter showed as well how the Appellate Body has exercised this autonomy by enhancing the control panels and the Appellate Body has over disputes; and by expanding the jurisdiction of the WTO dispute settlement system. In general, it is possible to say that with regard to the exercise of its self-transformative autonomy, the Appellate Body has completed certain self-transformations, has others in their early or latest stages, and has also exercised its autonomy in order not to transform the system, as the refusal to solve the
"sequencing problem" reveals.
However, the existence and exercise of this autonomy do not mean that it lacks limits.
Consistent with the theoretical framework provided in Chapter I, the Appellate Body's self-transformative autonomy has both internal and external limits. The Appellate Body is not a self-starter - although this characteristic has itself some limitations in its ability to effectively deter the Appellate Body from self-transforming; and the two level collegial decision-making process may also operate as a constraint to this autonomy. Lastly, the external environment does play a constraining effect as the amicus curiae controversy illustrates.
Finally, one of the major contributions of the Appellate Body to the evolution of external systems has been the development on a case-by-case basis of a jurisprudence that has moved the world trading system towards a greater recognition of environmental concerns 446 by setting the conditions under which trade measures are used to pursue environmental objectives.
For all these reasons, it is possible to state that the Appellate Body operates as autonomous systems do, and as a result, it possesses autonomy to transform the WTO dispute settlement system to a certain extent. For practical purposes, the Appellate Body is in a position to determine the extent, timing and justification of such self-transformations.
III.5. Assessment of the Functioning of the WTO Appellate Body as an Autonomous System Compared to the U.S. Supreme Court and the International Court of Justice
Chapters I, II, and III illustrated how the U.S. Supreme Court, the ICJ, and the AB operate in ways that satisfy the criteria of Luhmann's autonomous systems, which reveals, first, that Luhmann's theory can explain the functioning of these adjudicative bodies, as
Chapter I posited, and second, that the AB, by particularly having the autonomy to transform the WTO dispute settlement system, is not a unique institution. However, the analysis carried out in the first three chapters, in addition to confirming Luhmann's theory, may also help better explain the operation of the AB as an autonomous system by identifying the ways in which the AB functions differently from the ICJ and the U.S.
Supreme Court.1086
The purpose of this part is to present a general comparison of the three institutions on the basis of the analyses carried out in the first three chapters. Such comparison in itself generates multiple questions that go beyond the scope of this thesis, and those questions will constitute the material for further research in the future. 447
III.5.1. The Different Origins of the Quasi-Legal Identity of the International Court of Justice and the Appellate Body
Both the ICJ and the AB possess quasi-legislative identity in the sense that their decisions have shaped State behaviour well beyond that of the parties to disputes. However, a careful comparison permits the identification of important differences in this identity. The quasi-legislative character of the International Court of Justice exists because of the broad discretion it has to recognize rules of customary international law. External actors, such as
States and other international courts, take such declarations virtually as constitutive acts of creation of customary international law in some circumstances. On the contrary, the AB has not grounded any decision so far on a recognition of customary international law of
I ADD
WTO Members' practice. Nevertheless, this has not prevented the AB from also having a quasi-legislative identity.
1087 See Part 1.2.2 of Chapter I, Part II.2.1.1 of Chapter II and Part III.3.1.1 of Chapter III, above. To recall, the quasi-legislative character refers to the fact that AB reports and ICJ judgments usually produce effects that go well beyond the specific parties to the dispute in question. Such quasi-legislative nature has then this narrow meaning and should not be understood to imply that both the AB and the ICJ operate identically as international political organs do, when they enact international norms. loss JJ^ js not tQ say tjiat §tate practice is of no relevance in the WTO. But its role is restricted to the interpretation of the covered agreements pursuant to Article 31.3(b) of the Vienna Convention, according to which. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. ...
There shall be taken into account, together with the context: (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; The Appellate Body ratified previous reports, and in US - Gambling it defined State practice for the purpose of the interpretation of WTO law: In Japan - Alcoholic Beverages II and Chile - Price Band System, respectively, the Appellate Body referred to 'practice' within the meaning of Article 3 l(3)(b) as: ... a 'concordant, common and consistent' sequence of acts or pronouncements which is sufficient to establish a discernible pattern implying the agreement of the parties [to a treaty] regarding its interpretation.
a discernible pattern of acts or pronouncements implying an agreement among WTO Members on the interpretation of [the relevant provision]. 448
If the possibility of declaring the existence of customary international law is a paramount source of the quasi-legislative identity of the ICJ, the compulsory jurisdiction of the AB is one of the main sources of such identity for the AB. The compulsory jurisdiction of the
DSB creates incentives for States to adjust to AB decisions if they want to avoid being subject to litigation on the basis of the given AB report and the lack of a State adjustment to it.
The relevance of the compulsory jurisdiction of the AB to expand its quasi-legislative identity is well illustrated by Canada's behaviour regarding the Airbus/Boeing transatlantic dispute between the U.S. and the European Communities, in which both the
U.S. and the European Communities are accusing each other of granting WTO-unlawful subsides to their aircraft industries. The scope of the concept "subsidy" is at issue in this dispute, and Canada has decided to participate as a third party in order to seek to narrow the scope of this term. The reason is that if the AB defines it broadly, as the European
Communities is seeking for it to do, such definition could trigger a subsequent dispute against Canada, who also has a powerful aircraft industry, by Brazil, one of its most fierce
US - Gambling AB Report, supra note 871 at para. 121 [footnotes omitted]. The AB, though, has not stated that customary rules may override provisions of the covered agreements.
1089 -j^ js not tQ say jj^j. ^e compUisory jurisdiction of the WTO dispute settlement systems ensures that States always adjust their behaviour to AB reports. There is no legal system enjoying perfect enforcement even in domestic legal systems and much less so in the international sphere, which lacks an enforcement mechanism as effective as those available in the former. In the context of the WTO, it is clear that not all States adjust their behaviour to AB reports, because such adjustment depends on other issues, such as the magnitude of the economic interest at issue and the real likelihood of litigation by other Members, among other criteria. 449 competitors.1090 What Canada is attempting to do is precisely to avoid having to adjust its behaviour in the future or to face a dispute with Brazil as a result of an adverse—from
Canada's perspective—definition of "subsidy" emerging from the Airbus/Boeing dispute.
It is the compulsory nature of the jurisdiction of the WTO dispute settlement system that is forcing Canada to act as third party in the dispute, and it is also what gives the AB's potential definition of "subsidy" in the Boeing/Airbus dispute a quasi-legislative character
in the sense that other Members that do not adjust their subsidies to such definition may risk subsequent litigation about their subsidy programs.
In sum, the quasi-legislative identity of the ICJ and the AB is rooted in quite different institutional characteristics of these two Courts. The fact that the AB has not declared the existence of rules of customary international law applicable to WTO Members does not prevent it from having a large quasi-legislative identity due to the compulsory jurisdiction of the WTO dispute settlement system, which creates an incentive for States to adjust their behaviour to the AB case-law if they want to avoid litigation by competitors invoking it.
The Globe and Mail report in this regard illustrates well the significant quasi-legislative consequences of the incoming panel and AB's report of this dispute, due to the compulsory jurisdiction of the DSB, [The Canadian government] explained it joined the dispute because of 'its role as one of the world's major producers of civil aircraft' and its interest in the future interpretation of global trade rules governing subsidies. It was only few years ago that a battle between Canada and Brazil over alleged subsidies to Bombardier and Embraer ended in a draw, and Ottawa has no enthusiasm to be exposed to new challenges from Brazil. 'If the EU were to succeed, it could open the door to renewed challenges by Brazil, seeking to protect Embraer's foreign markets against Bombardier' said [a Canadian trade lawyer working for a law firm]. Globe and Mail, October 19, 2007 at Bl. 450
III.5.2. Self-Observation, Observation of the External Environment and the Different Relevance for the AB of the U.S. Supreme Court's Issue Avoidance Techniques
It was seen in Part II. 1.1.2 of Chapter II how the U.S. Supreme Court, particularly, has designed a series of doctrines, such as the doctrines of ripeness, mootness, and the political question doctrine, that allows it to better respond to the external political environment. These techniques evidence both self-observation and observation of the
Court's external environment.
Such doctrines have a much smaller ambit in the international plane, and their use is marginal. For instance, there is the AB's case-law, which produces the effect of the doctrine of ripeness. In its broadest formulation, the doctrine of ripeness means that the
U.S. Supreme Court may adjudicate a dispute between a person and a public entity only if the dispute persists after having exhausted all the previous legal means. While a doctrine of exhaustion of local remedies does not exist in the WTO dispute settlement system, the
AB has established that parties may resort to panels only when they have exhausted the diplomatic means of resolution without success. The diplomatic means are, in the case of the WTO dispute settlement system, the consultations phase pursuant to Article 4 of the
DSU. Consultations must be held with regard to all the measures that are considered to be in violation of the covered agreement. So, if within a dispute there is a set of measures, and among them are some that were not the subject of consultations, they are not "ripe" for adjudication by panels and the AB. In effect, the AB has established that panels must exclude from their terms of reference measures for which consultations have not been 451 held. Therefore, in the WTO dispute settle system, consultations play a similar role to
that of administrative remedies in the U.S. legal system.
However, the similarity ends there, because the use of the doctrine as an issue avoidance technique is by no means comparable for the U.S. Supreme Court and the AB.
Administrative remedies are a much more complex structure and, according to some
American constitutional scholars, the U.S. Supreme Court has taken advantage of such
complexity to find that controversial cases are not yet ripe for adjudication. The same
cannot be said of the consultations phase within the WTO dispute settlement system. If the
measures a Member complains about are properly determined, to hold consultations about them with the respondent may be straightforward, provided that diligence is performed
during the preparations of the request for consultations. In consequence, in practical terms,
the scope of the applicability by the AB, and also by panels, of a doctrine similar to
ripeness is very narrow.
A similar situation takes place with the doctrine of mootness, which the U.S. Supreme
Court uses to avoid rendering declaratory judgments when the dispute at issue has
disappeared and the ruling, therefore, would not produce any practical effect. In the
context of the WTO, that a dispute exists may also be a matter of controversy, but the
existence of the dispute is not associated with the expiration of the measure at issue. For
1091 See United States—Import Measures on Certain Products from the European Communities (2000), WTO Doc. WT/DS165/AB/R at para. 82, (Appellate Body Report), online: WTO
instance, the AB has held that the fact that the measure at issue has expired does not prevent panels from pronouncing about its conformity with the covered agreement. In its report in US - Upland Cotton, the Appellate Body declared:
The only temporal connotation contained in the ordinary meaning of the expression 'at issue', as used in Article 6.2 of the DSU, is expressed by its present tense: measures must be 'at issue'—or, putting it another way, 'in dispute'—at the time the request is made. Certainly, nothing inherent in the term 'at issue' sheds light on whether measures at issue must be currently in force, or whether they may be measures whose legislative basis has expired. The relevant context for Article 6.2 in this regard includes Articles 3.3 and 4.2 of the DSU. As we have concluded above, those provisions do not preclude a Member from making representations with respect to measures whose legislative basis has expired, if that Member considers, with reason, that benefits accruing to it under the covered agreements are still being impaired by those measures. If the effect of such measures remains in dispute following consultations, the complaining party may, according to Article 4.7 of the DSU, request the establishment of a panel, and the text of Article 6.2 does not suggest that such measures could not be the subject of a panel request as "specific measures at
As can be seen, what matters is that the effects of the expired measure persist and are nullifying and impairing its rights. In consequence, disputes about the existence and scope
of such effects may occur, and the AB does not regard as moot a conflict in which, despite
the expiration of the measure, the effects remain.
As to the political questions doctrine of the U.S. Supreme Court, the comparison can be
extended to include the ICJ to shed light on the use of this doctrine at the international
level. To begin with, although it is true that the ICJ rejected this doctrine in Nicaragua
Jurisdiction in the sense that the Court held that this dispute should be left to U.N.
political organs, and that the ICJ has also said that the political connotations attached to
questions in advisory opinions do not prevent the ICJ from rendering them, as in the* Wall 453
Opinion, the Court nonetheless has felt compelled to recognize that sometimes the political dimensions are simple overwhelming for the ICJ. The ICJ judgment in Nuclear
Test is telling proof of a decision in which the Court, for practical purposes, applied the doctrine to avoid ruling on the merits. The ICJ decision in Arrest Warrant also evidences a partial political question doctrine, in which the Court used its agenda-setting power to put
aside a complex political issue: the lawfulness of international criminal jurisdiction.
Likewise, the opinion in Legality of Nuclear Weapons also illustrated the ICJ's
deployment of this doctrine in the sense that the Court admitted that it would not provide
answers to some of the delicate issues involved in the question posed by the U.N. General
Assembly.
While the political question doctrine has its full extent in the U.S. Supreme Court, and a
partial scope in the ICJ, so far it has had none in the AB, as was illustrated. In effect, one basis for the possible partial application of the doctrine is through the exercise by the AB
of judicial economy, in the sense that the AB exerts judicial economy regarding a highly
political issue when responding is not necessary to resolve the dispute at issue. So far, the judicial economy that the AB applies seeks only to avoid spending resources on
unnecessary issues just because appellants raised them. In sum, the degree of judicial
economy the AB has developed for itself so far is very limited and is not yet applied to
reach effects similar to those of the partial political question doctrine deployed by the ICJ.
Finally, taking for granted that a political question doctrine has not been recognized by the
ICJ and the AB to exist, the use of even the partial doctrine by the ICJ and eventually by
US- Upland Cotton AB Report, supra note 1091 at paras. 269-70. 454 the AB through the exercise of judicial economy in some circumstances, through not all, is and would be quite exceptional.
But the absence of a de facto partial political question doctrine says a lot about the exceptional capacity so far of the AB to adjudicate even the most complex trade disputes, because, by not having decided that it is not able to cope with an issue raised before it, it has shown that it has perceived itself as being institutionally powerful enough to do so.1094
In sum, the issue avoidance techniques of the U.S. Supreme Court do not play a very important role for the ICJ and an even smaller role for the AB. The institutional setting surrounding the ICJ and the AB explain well this situation. The U.S. Supreme Court is surrounded by two well-developed branches of government, the U.S. Congress and
Executive, in whose hands it can leave those disputes it does not wish to deal with, for whatever reason. Both in the U.N. and the WTO, there are political organs indeed, but they are not as institutionalized as their domestic peers. Therefore, in practice, neither the
ICJ nor the AB have other international bodies available to resolve the disputes that they think they are not capable of adjudicating.
On the other hand, both the ICJ and the AB deal with government-to-government disputes, and therefore, the stakes at issue in such controversies may be more significant than those in domestic litigation. This situation calls for the ICJ and the AB to intervene to
1094 The only exception to the lack of existence of a doctrine similar to the U.S. political questions doctrine could be the AB's refusal to solve the sequencing problem. (See Part III.3.5.4.3.2 of this chapter, above.) Without denying the importance of this exception, it does not undermine the conclusion that the AB has felt strong enough to rule on the issues raised by appellants in virtually all cases. 455 resolve such inter-State differences instead of refusing to play the role that justifies their existence.
III.5.3. Concerns for Compliance: A Comparison Between the International Court of Justice and the Appellate Body
It was seen before in Part II.2.1.2 of Chapter II regarding the ICJ that there is evidence of concern regarding compliance as a factor that plays a role in the design of judgments. This is so given the fact that the compliance mechanism of ICJ decisions has considerable limitations, since it depends on the U.N. Security Council for this purpose, as was illustrated. Although compliance concerns may be also an issue for the AB, there are significant institutional differences between the ICJ and the AB that lead the latter to pay much less attention to the need for crafting reports that have a better chance of being complied with by defendant Members.
Lockhart appeared to support such a point when he highlighted that the decision to comply with an adverse AB report rests on respondent Members and depends on internal domestic policies that cannot be influenced by the AB. This original member of the AB held, when criticizing compliance as a criterion to measure the AB's success:
[Decisions whether and how to comply are ultimately taken by WTO Members themselves. Such decisions are informed by dispute settlement rulings, but also by domestic considerations and possibly also by the probability, or lack thereof, of other WTO members taking retaliatory measures. A number of these factors are, obviously, beyond the reach and influence of an institution like the Appellate Body.109
John Lockhart, "Assessing the 'success' of the Appellate Body over the first ten years" in Sacerdoti et al, supra note 155, 285 at 287. 456
This comment could be seen as revealing that the AB may consider that uncertainty surrounding the potential compliance by the respondent Member of any of the alternative decisions the AB has at its disposal to adjudicate the case at hand is so high that it is simply impracticable to craft the final decision on the basis of such individual assessment.
Commenting on the AB's compliance concerns, Werner Zdouc reiterated the point made by Lockhart but added that the existence of a specific compliance stage within the WTO dispute settlement system somehow relieves the AB from such concern. Compliance is not for the AB to be worry about when crafting the original report of the case. To Zdouc, this issue must be addressed by compliance panels only. 6 Certainly, the existence of this stage plays a role in the extent to which lack of compliance is taken into account when the
AB members craft the report, since there is another WTO adjudicator, and the AB on appeal, which can directly address this issue if the recommendations and rulings of the
DSB are not promptly implemented.
Finally, the existence of an enforcement mechanism for the adopted AB reports contributes even more to not assigning compliance in the crafting of AB reports the importance it may have during the ICJ's deliberations. As was mentioned, the WTO dispute settlement system relies on peer pressure and on the suspension of concessions in order to induce defendants' compliance.1 7 The mechanisms may not be as strong as
1096 Zdouc, Interview, supra note 1041. I should add that it may also be a matter for the AB, when the compliance panel report is appealed. 1097 It is important to say that lack of compliance with adopted reports is not in itself the last word of the dispute. Not to implement adverse rulings may require more political clout than to put in place the inconsistent measure, since importers are potentially affected by retaliation or the respondent State's reputation as a fair player within the system is put in question. So, there have been occasions in which lack of compliance has taken place but has still led to less protectionist measures. The U.S. Manufacturing 457 those available to domestic courts, but they have a persuasive force that may be much more effective than the tools at the disposal of the ICJ.1098 The peer pressure is exerted in each meeting of the DSB in which the losing Member must provide information regarding the status of its compliance with the adopted panel and AB reports of the given dispute; and the suspension of concessions in the most common form of tariff increases for the importation of products from the reluctant Member may lead to the gathering of domestic support for compliance by those exporters affected by the increase.
As can be seen, compliance is not an issue left exclusively in the hands of the AB, and therefore, its concern for it may be less than that of the ICJ, which lacks a comparably effective enforcement apparatus.
Clause case, U.S. Manufacturing Clause (1984) 31th Supp. B.I.D.S. (1985) 74, is a telling example, so described by Davey: [T]he case involved a U.S. law that denied copyright protection in some instances to works of U.S. citizens that were printed abroad. The law was scheduled to expire in 1982, but was extended for four years by Congress over the President's veto. The extension was found to violate the General Agreement ... U.S. industry tried to have the law extended again in 1986, but in a modified less protectionist form. When asked why, an industry representative replied that they had reduced their goals because of 'enormous pressure from elements of the Government and elements of Congress.' ... That pressure came from governments officials arguing that the GATT decision should be respected and industries fearful of retaliation by those countries that would be adversely affected by the extension of the clause. Davey, "Dispute Settlement", supra note 769 at 77, n. 102. So, given that to keep in place a declared inconsistent measure requires additional political leverage from those interests that obtained its adoption, which may not be available under certain circumstances, the AB could count on the internal debate in the respondent Member as being able to ensure at least a certain degree of compliance. If this is the case, the AB could heed compliance even less when designing the result and justification of the case at hand. 1098 The enforcement mechanisms of the WTO dispute settlement systems are far from being perfect, and their effectiveness varies depending on the type of members involved in disputes. It is commonplace to highlight the fact that prevailing developing country complainant Members may have difficulties using the enforcement mechanism against developed country Members. See Steve Charnovitz, "Rethinking WTO Trade Sanctions" (2001) 95 A.J.I.L. 792 816-17. 458
III.5.4. The Expansion of Jurisdiction: A Comparative View of Its Impact on the U.S. Supreme Court, the International Court of Justice, and the Appellate Body
It has been shown in Chapter I how autonomous systems control their boundaries and how, by having the capacity to interpret the scope of their jurisdiction, they can expand it.
This thesis illustrated well how, as one of their self-transformations, the U.S. Supreme
Court, the ICJ, and the AB expanded their jurisdiction.1099 However, the overall impact of this self-introduced structural feature on the three judicial institutions varies widely among them. In effect, the expansion of the jurisdiction carried out by the U.S. Supreme Court, by creating the judicial review of federal and state legislation, gave it a significant power to shape U.S. society and the relations between the U.S. Congress and the Federal
Administration, on one hand, and states and the Federal State, on the other.
Such a large-scale impact has not been brought about by the ICJ's and AB's expansion of their jurisdictions. In effect, it is not possible to make a direct association between the
ICJ's acceptance of concurrent jurisdiction with the U.N. Security Council in disputes
involving the maintenance of peace and security or the creation of the judicial review of
U.N. political organs' resolutions with today's prestige of the Court. Certainly, by virtue
of the first expansion of jurisdiction, the ICJ has already produced important decisions, as
the Nicaragua Merits evidences, but the use of the judicial review remains, in general
terms, in reserve, in the sense that the likelihood of its being deployed to affect the powers
of a U.N. political organ is low.
See above Parts II. 1.1.5.3.4 and II.2.1.5.4.5 of Chapter II and Part III.3.5.4.2 of Chapter III. 459
The same can be said of the AB's stretching of its jurisdiction. The AB's pre-eminence
within the world trade system has little to do with such stretching. Its concurrent jurisdiction with the WTO Committee on Regional Trade Agreements and the Committee
on Balance of Payment Measures plays a role in disputes of this nature, and the reports
have been hallmarks of the AB jurisprudence. But the decisions establishing such jurisdiction, Turkey - Textiles and India - Quantitative Restrictions, have not allowed the
AB to achieve a comparable transformation to that generated by the U.S. Supreme Court's
creation of judicial review, since litigation about balance of payment measures and
regional trade agreements is extremely rare and limited to these specific subjects -
compared to the general judicial review power of the U.S. Supreme Court.
In sum, all three institutions share the expansion of their jurisdiction as a common feature
of their operation, but the specific impact on each of them brought about by these self-
transformations significantly varies. It has been paramount to the subsequent placing of
the U.S. Supreme Court as a powerful institutional actor, but it has not played a similar
role for the ICJ and the AB.
HI.5.5. Externally Compelled Self-Transformations: The Experience of the Appellate Body, the International Court of Justice, and the U.S. Supreme Court
In the exercise of their autonomy to self-transform, the comparative experience of these
three courts reveals that both the U.S. Supreme Court and the ICJ have introduced self-
transformations that have been compelled by the external circumstances of the case in
question. Marbury led to the U.S. Supreme Court's creation of judicial review of federal 460 legislation, while both the Nuclear Test and Legality of Nuclear Weapons cases also compelled the ICJ to introduce important self-transformations.1101 So far, the AB has not been confronted with a dispute that has compelled it to introduce institutional transformations to the WTO dispute settlement system.1102 This situation emphasizes the strength of the AB to adjudicate trade disputes.
III.5.6. The Self-Transformations of the International Court of Justice and the Appellate Body: Can the ICJ Provide Guidance to the AB?
It is usually claimed that one of the most important decisions the AB took regarding the
WTO-covered agreements was to declare that they could not be interpreted in clinical isolation from international law. Less evident is the impact that such statement could have on the AB itself as an institution. The statement has paved the way for the AB to draw, explicitly and implicitly, on a prior self-transformation of the ICJ to adopt a similar one in the WTO dispute settlement system. In other words, regarding some issues, the ICJ has taken the lead and the AB has followed it.'103
To begin with, the freedom of argumentation developed by the ICJ,1104 which gives it considerable autonomy to adjudicate disputes and to shape the content of public
11U0 See above Part. II. 1.1.5.3.4.1 of Chapter II. 1101 See above Parts II.2.1.5.4.1.2 and II.2.1.5.4.1.5 of Chapter II. uo2 JJ^ js not tQ say tjiat tne externai environment has not played a role in the exercise of the self- transformative autonomy of the AB. Such role has been properly highlighted in Part III.3.5.5.4 of this chapter. 1103 It would be a mistake to read this conclusion as implying that the AB is always a follower in the development of international law. To cite a single example mentioned by McRae, the contribution that the AB has made to the development of the Articles of the Vienna Convention related to the interpretation of treaties has been outstanding. See McRae, "Treaty Interpretation", supra note 155 at 370. 1104 See Part II.2.1.5.4.1.3 of Chapter II. 461
international law, was embraced by the AB,1105 and ICJ jurisprudence was explicitly
invoked as support for this important transformation within the WTO dispute settlement
system. A second example is impossible to prove directly, but it is not unthinkable, given the similarity of the results reached by both the ICJ and the AB. The AB's extension of jurisdiction over issues traditionally in the hands of WTO political organs has a parallel
with the ICJ's prior Nicaragua Merits case asserting jurisdiction over disputes that are being handled by the U.N. Security Council, in which the relations between the political and the judicial organs of the U.N. are at issue. The AB did not cite Nicaragua Merits in either Turkey - Textiles or India - Quantitative Restrictions; however, there is little doubt that it was aware of the ICJ's position in this regard in Nicaragua Merits, since at least one of its members, Said El-Naggar, was a well-known public international law scholar.
Therefore, it is not unimaginable that the latter decision at least could have provided some
guidance to the AB to conclude that the dispute settlement system has concurrent jurisdiction with the Committees on Balance of Payment Measures and on Regional Trade
Agreements, as the ICJ has with regard to issues in the hands of the U.N. Security
Council.
Although this evidence is certainly far from being conclusive regarding the influence that
self-transformations adopted by the ICJ may have on the AB, it shows that the influence
has clearly existed at least in one particular case: WTO panels and AB's freedom of
argumentation. This influence, on the other hand, may also generally lie in the fact that the
ICJ has a significant reputation the AB could draw on to adopt similar self-transformative
See Part III.3.5.4.1.3 of this chapter. 462 decisions that WTO Members, most of them UN Members, have already accepted regarding the Court and are familiar with.
Such influence obviously does not mean that the AB has only adopted ICJ transformations. Certainly, the AB has also introduced self-transformations that respond to the exclusive needs of the WTO dispute settlement system, such as the enhancing of the fact-finding powers of the WTO quasi-judiciary, for which there is no parallel in the ICJ, since such powers have been expressly granted to it by the ICJ Statute.
Having said that, the final issue is to suggest possible ways in which the inspirational value of the ICJ jurisprudence could play an important role in the design by the AB of some transformations to the WTO dispute settlement system.
III.5.6.1. The ICJ's Early Case Law Ordering States on How to Implement Its Decisions and the Use by the Appellate Body of Article 19.1 of the DSU
It was shown in Part II.2.1.5.4.4 of Chapter II how the ICJ has started a self- transformation in which it orders defendants regarding how to implement its judgments, leaving in their hands the choosing of the means to do so. The ICJ's decisions in LaGrand and Arrest Warrant were the first two steps of this self-transformation, and it remains to be seen whether this self-transformation inspires the AB as to how it uses the prerogative contemplated by Article 19.1 of the DSU to make recommendations as to how respondents could implement its adopted reports. According to this provision:
Where a panel or the Appellate Body concludes that a measure is inconsistent with a covered agreement, it shall recommend that the Member concerned bring 463
the measure into conformity with that agreement. In addition to its recommendations, the panel or the Appellate Body may suggest ways in which the Member concerned could implement the recommendations.1106
So far, the AB has refused to make use of the possibilities offered by Article 19.1 of the
DSU. In the dispute in US - Oil Country Tubular Goods Sunset Reviews, Argentina asked the AB, in its appeal of the compliance panel report of the case, to issue a recommendation pursuant to this provision suggesting that the U.S. revoke the anti dumping duty order at issue.1107 The AB opted not to do so. It said that
We noted earlier that Articles 19.1 and 21.3 of the DSU suggest that alternative means of implementation may exist and that the choice belongs, in principle, to the implementing Member. ...nos
According to Ms. Hughes, the rationale for this decision was that the AB members simply do not have sufficient time during appellate proceedings to acquire the necessary knowledge of the respondent Member's legal system to be able to indicate how it should implement the adopted reports of the case.1109 While the possibility may be open, the record of compliance at the ICJ with such orders is mixed, and the ICJ's experience with the U.S.'s compliance after LaGrand seems to support the difficulties the AB may have in sufficiently mastering domestic legal systems so as to be able to make effective recommendations.
Indeed, the problems the ICJ is facing in effectively getting the U.S. to abide by its order in LaGrand may support the AB's cautious approach. In fact, the U.S. Supreme Court
"06 yrpo Legal Texts, supra note 4 at 367-68. [footnote omitted]. 1107 See US - Oil Country Tubular Goods Sunset Reviews AB Compliance Report, supra note 988 at para. 180. 1108 Ibid, at para. 184. 464 took a different view regarding the consequences of the violation of the Vienna
Convention on Consular Relations in its ruling in Sanchez-Llamas v. Oregon.1110 In this case, the accused made some self-incriminatory statements before he was notified of his rights under the Convention and asked the Court to suppress them for the record as a result of the violation of the treaty.1111 On one hand, the U.S. Supreme Court concluded that the
1119
Convention does not prescribe such a remedy, and on the other, the Court stated that suppression of evidence of the basis of violation of the Convention would be a disproportionate remedy, because "[t]he failure to inform a defendant of his Article 36 rights is unlikely, with any frequency, to produce unreliable confessions.. .."1113
The Court also dealt with the ICJ's conclusion that the application of the procedural default rule to violations of the Vienna Convention, preventing convicted individuals from raising violations of the Convention before U.S. federal courts if they had not raised the claim before state courts, was a violation of the Convention. The U.S. Supreme Court held that the ICJ interpretation deserved "respectful consideration,"1114 but it said that determining the meaning of international treaties as a matter of federal law is
"emphatically the province and duty of the judicial department, headed by the one
Supreme Court established by the Constitution."1115 On this basis, the Court established that "[n]othing in the structure or purpose of the ICJ suggests that its interpretations were
Hughes, Interview, supra note 888. 1110 See Sanchez-Llamas v. Oregon, 548 U.S. (2006). [Sanchez-Llamas]. 1111 See ibid, at 5. 1112 See ibid, at 8. nu Ibid, at 14. iiUIbid.at\8. 1115 Ibid, at 19. 465 intended to be conclusive on our courts."1116 Contrary to the ICJ finding of violation stemming from the application of the procedural default rule, the U.S. Supreme Court held that
[A]rticle 36 makes clear that the rights it provides 'shall be exercised in conformity with the laws and regulations of the receiving State' provided that 'full effect ... be given to the purposes for which the rights accorded under this Article are intended' ... In the United States, this means that the rule of procedural default—which applies even to claimed violations of our Constitution 1117 ... —applies also to Vienna Convention claims.
The U.S. Supreme Court went further and criticized the ICJ's conclusion regarding the violatory character of the procedural default rule when applied in cases of violation of the
Vienna Convention. For the U.S. Supreme Court, such conclusion resulted from ignoring the U.S. legal system. The U.S. Supreme Court stated:
[T]his reasoning overlooks the importance of procedural default rules in an adversary system, which relies chiefly on the parties to raise significant issues and present them to the courts in the appropriate manner at the appropriate time for adjudication....1118
The U.S. Supreme Court then concluded that "[cjlaims under Article 36 of the Vienna
Convention may be subject to the same procedural default rules that apply generally to other federal-law claims,"1119 which means that the ICJ's order does not have to be complied with. In consequence, the order to the United States in LaGrand, in the sense that it "shall allow the review and reconsideration of the conviction and sentence by taking account of the violation of the rights set forth in that Convention,"1120 is facing the most
Ibid, at 19. Ibid, at 21. Ibid, at 21. Ibid, at 25. LaGrand, supra note 540 at para. 168 (7). 466
daunting hurdle: the opposition of the U.S. Supreme Court, on the basis of its domestic
legal system and of the U.S. Constitution.
Returning to the assessment of the influence that LaGrand may have on the use of Article
19.1 by the AB, it is certain that the troubles facing the LaGrand order would be taken
into account, and it does not offer much support for the AB's following the ICJ in this regard. Such troubles reaffirm the fears that Ms. Hughes expressed. However, while the
LaGrand order has not been obeyed by the United States, that in Arrest Warrant was
1101 immediately complied with by Belgium, so the scant record of the ICJ orders instructing States on how to comply with judgments is not entirely discouraging. This is why it is still worthwhile to watch closely whether the AB will follow the ICJ in this ongoing although still nascent self-transformation.1122
III.5.7. Summary
In this chapter, it has been shown how the AB has operated as an autonomous system in terms described by Luhmann and how it has transformed itself and the WTO dispute
settlement system. Also, some of the main differences that the operation of the AB has in
11 See Schulte, supra note 458 at 269. 1122 But the inspirational value of the ICJ jurisprudence may raise another related issue. Article 19.1 of the DSU establishes that AB recommendations are not binding. The question is whether, on the basis of the inspiration offered by LaGrand declaring the ICJ's provisional measures as binding, when such conclusion was not evident from the text of Article 41 of the Statute, the way would be paved for an AB transformation—in certain circumstances—of the hortatory nature of these recommendations into a binding one. This seems highly unlikely today, given that the Court has been extremely cautious in making use of even its non-binding recommendation capacity, as was mentioned, the transformation is at least hypothetically possible, since, as the report in Canada - Aircraft well illustrated, hortatory language in the DSU can be transformed into mandatory language, when the AB thinks it necessary. In fact, Part III.3.5.4.1.1.1 of this chapter showed how the AB established in the that report that, on the basis of a contextual interpretation of 467 comparison to those of the U.S. Supreme Court and the ICJ have been illustrated. The next chapter will suggest two additional transformations that the AB could introduce to the system to resolve controversies within the WTO.
the DSU, the word "should" in Article 13 means "shall," and therefore, Members have the duty, not the discretion, to provide information requested by panels. 468
CHAPTER IV
POTENTIAL FUTURE TRANSFORMATIONS OF THE WTO DISPUTE SETTLEMENT SYSTEM TO BE INTRODUCED BY THE APPELLATE BODY
Having established that the AB operates as an autonomous system and as a result, that it
can introduce institutional changes to the WTO dispute settlement system, and that the
exercise of this autonomy is dynamic in the sense that there are some transformations that the AB has completed while other are underway in either early or late stages, this thesis will conclude by identifying some potential future institutional changes that the AB could
carry out in the future, which could be grounded on extant AB case law. In sum what this
thesis has shown is that the AB possesses autonomy to transform the WTO dispute
settlement system, has exerted this autonomy and could introduce new transformations in the future, as the two discussed in this Chapter.
The first is the recognition of judicial review of Ministerial Conference or General
Council's Interpretations, and the second is to make more effective the interpretation and
operation of those norms provided for in the DSU that favour developing and least
1 19^
developed country Members. In particular, the transformation suggested in this
Chapter consists in allowing panels to go beyond the terms of reference of disputes in
controversies in which the respondents are developed country Members, by being able to
rule on claims that developing country complaining Members did not include in such
This author has attempted a similar exercise elsewhere regarding the effective application by arbitrators calculating the reasonable period of time for implementation, of certain provisions of the DSU aimed at favouring developing country Members. See Alberto Alvarez-Jimenez, "A Reasonable Period of Time for 469 terms, but adopted subsequently in panel proceedings once they were identified by third parties. In other words, the transformation would mean that if a developing country complainant missed an important claim that was identified by a third party, the panel could rule on such a claim, provided that certain conditions were met.
IV. 1. Judicial Review in the WTO Dispute Settlement System
Apparently, there is no judicial review within the WTO. Perhaps the most powerful reason supporting this assumption is that the Dispute Settlement System is designed to adjudicate disputes between Members exclusively, and not among Members and WTO political bodies. Indeed, there is no single reference within the DSU assigning a panel or the AB jurisdiction to review the consistency with the covered agreements of WTO political bodies' determinations.
However, as has been seen in Chapter II one could go back in time as far as 1804 to the
United States Supreme Court's ruling in Marbury, or to the ICJ's advisory opinion in
Namibia and order in Lockerbie to find out that judicial review may exist implicitly in domestic or international law. The same could be said for the WTO: the existence of judicial review could be implicit in the DSU, and a self-transformation to recognize judicial review power could be grounded by the AB on existing case-law.
The issue of judicial review within the WTO could well receive little attention were it not for the fact that there are some important voices - echoed by a prestigious publication -
Dispute Settlement Implementation: An Operative Interpretation for Developing Country Complainants" (2007) 6 World Trade Review 451. 470 calling for the use of Interpretations of extant WTO provisions issued by the Ministerial
Conference (MC) and the General Council (GC) pursuant to Article IX of the WTO
Agreement1124 as one of the norm-generating tools in the future within the
Organization.1125 As was the case with the U.N. Security Council, whose evolution towards an effective rule-making body led to the creation of procedural and substantive judicial review of its resolutions by the ICJ, the corresponding evolution of the MC or the
GC towards a more prominent rule-making role could also lead to the recognition of the
1 11f\ judicial review of their Interpretations by the AB. This is certainly not to suggest that it is likely that such recognition will take place, since so far neither the MC nor the GC has ever attempted to issue an Interpretation in the terms on Article IX. The point this thesis seeks to highlight is a narrow one: had the MC or the GC decided to exercise their interpretative power, the judicial review of their Interpretations could be raised, and there would seem to be enough existing case-law to allow a panel and the AB to carry out such review.
Throughout this Part I will use the capitalized term "Interpretation" as referring to MC's and GC's Interpretations in order to distinguish them from the "judicial" interpretations rendered by panels or the Appellate Body when adjudicating disputes between WTO Members. 11 5 See Ehlermann & Ehring, "Decision-Making", supra note 817, at 52. Clauss-Dieter Ehlermann & Lothar Ehring, "The Authoritative Interpretation under Article IX:2 of the Agreement Establishing the World Trade Organization: Current Law, Practice and Possible Improvements" (2005) 8 J. of Int'l Econ. L. 803 at 809 [Ehlermann & Ehring, "Interpretations"]. Interpretations could be issued by the MC or die GC to refine provisions of the covered agreement, to adjust them, to fill their gaps, or even, as will be seen below, to create new rights and obligations for WTO Members. Each of these circumstances may have its particularities. However, this thesis will concentrate here only on the issues common to Interpretations adopted for any of these reasons. 1126 The term "judicial review" is used in this section to refer only to panel or AB evaluations of the conformity with WTO law of Interpretations issued by the MC or the CG. So, it does not refer to the obvious panel or AB power to review the conformity with the covered agreements of Members' legislation. This section deals only with the judicial review of MC or GC Interpretations, and leaves aside norms issued by other WTO political bodies of less hierarchy. 471
Paralleling the phenomenon in national legal systems, judicial review within international
organizations requires that the organization's adjudicating body has jurisdiction to decide
whether decisions of the organization's political bodies conform to superior norms of the organization, namely its constituting treaty or any other norm these political bodies have to comply with. This definition implies then that two conditions should be met to
ensure the existence of judicial review within an international organization, and in particular the WTO: (i) its political bodies have to abide by certain higher norms of the organization; and (ii) the organization possesses an adjudication body empowered to decide whether or not a specific political bodies' determination is ultra vires.
This section develops the argument in four parts. It starts analyzing the first requirement
of judicial review: the possibility of the illegality of Interpretations adopted by the MC or
the GC. The second part illustrates the likely presence of the second element of judicial
review: the potential for WTO panels and the AB to find jurisdiction to determine the
legality of MC or GC Interpretations, on the basis of the DSU and existing AB jurisprudence. The third part analyses some procedural issues related to the proceedings before a WTO panel. The fourth part summarizes the conclusions.
The term "political bodies" refer here to bodies within international organizations in which their member parties adopt decisions that bind them, but that do not have the status of international treaties. 1128 The perspective of this section is strictly legal. Consequently, policy reasons as to the convenience or inconvenience of the recognition of a judicial review within the WTO, or political science based speculative evaluations regarding whether or not a panel or the Appellate Body would strike down a MC or GC Interpretation fall beyond the scope of this section, since it exclusively deals with the institutional transformation as such. 472
IV.1.1 The First Requirement for the Existence of Judicial Review within the WTO:
Can the Ministerial Conference's or General Council's Interpretations
Violate WTO Law?
Within the WTO, the existence of ultra vires Interpretations of WTO law is hypothetically possible, given that Article IX.2 of the WTO Agreement establishes both substantive and procedural requirements for the exercise of the power of the MC and the GC to adopt interpretations of WTO law. To recall, this provision stipulates:
The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements. In the case of an interpretation of a Multilateral Trade Agreement in Annex I, they shall exercise their authority on the basis of a recommendation by the Council overseeing the functioning of that Agreement. The decision to adopt an interpretation shall be taken by three-fourths majority of the Members. This paragraph shall not be used in a manner that would undermine the amendment provisions in Article X.1129
The penultimate sentence imposes a procedural requirement, MC or GC Interpretations must be approved by a qualified majority.1130 The last sentence, for its part, contains a substantive limitation: the MC or the GC cannot adopt by interpretation of WTO law what must be done by amendment of WTO treaties.
WTO Legal Texts, supra note 4 at 9. This provision could have its origin in GATT Article XXV according to which: Representatives of the contracting parties shall meet from time to time for the purpose of giving effect to those provisions of this Agreement which involve joint action and, generally, with a view to facilitating and furthering the objectives of this Agreement. ... However, there were doubts about whether the contracting parties could interpret GATT on the basis of these provisions, since explicit interpretative powers were contemplated in the Charter of the International Trade Organization, and were not included in GATT. See in this regard, Jackson, World Trading System, supra note 778 at 123. 473
While the recognition of the existence of procedural ultra vires Interpretations is
straightforward, for instance if the given Interpretation is adopted without the requested
majority, to identify a substantive ultra vires Interpretation is more difficult. Indeed,
differentiating an interpretation from an amendment in substantive terms is not always an
easy task: quite the opposite, the line between both concepts is far from clear,1131 and
therefore, the situation is prone to judicial litigation, or at least judicial intervention. The experience within the North-American Trade Agreement (NAFTA) provides a telling proof of this.
Worried about the broad scope of protection that some Chapter 11 Arbitration Tribunals
were providing to investors, the NAFTA Free Trade Commission (FTC) issued an
interpretation of certain provisions of this chapter, among them, Article 1105.1, which
establishes that "each Party shall accord to investments of investors of another Party
treatment in accordance with international law, including fair and equitable treatment and
full protection and security." The interpretation of this provision stipulates that "Article
1105.1 prescribes the customary international law minimum standard of treatment of
aliens as the minimum standard of treatment to be afforded to investments of investors of
Article IX.2 establishes also a second procedural requirement: the Council in charge of the respective Multilateral Agreement subject of the Interpretation recommends it before the MC or the GC. It will be seen below that this requirement could not be seen as a mandatory one. 1131 During the GATT years, John Jackson identified an occasion when the interpreting norm went beyond the interpreted GATT provision and therefore operated more like an amendment thereto. In respect to the 1979 GATT Subsidies Code's track II, Jackson points out that it "reiterates the obligation to avoid the use of export subsidies on primary products ... when the result would be 'larger than equitable share' of the world market. Regarding nonprimary products, the code was more stringent than the GATT, although it purported merely to be interpreting the GATT...". Jackson, World Trading System, supra note 778 at 288 [italics added]. 474
1 1 -3^ another Party." The objective of the interpretation was to reduce the ambit of protection to investors by limiting the scope of the obligation.
The Award in Respect of Damages of the Arbitration Tribunal in Pope & Talbot Inc. vs.
Government of Canada concluded that this interpretation was in fact an amendment. The
Tribunal stated:
The documents ... provided (regarding the negotiating history of Article 1105.(1)) show that no reference was ever made to customary international law, and, of course, one must accept that the negotiators of NAFTA ... would have known that, as is made clear in Article 38 of the Statute of the ICJ, international law is a broader concept than customary international law, which is one of its components ...
For these reasons, were the tribunal required to make a determination whether the Commission's actions is an interpretation or an amendment, it would choose the latter..."1133
Although subsequent Arbitration Tribunals have upheld the interpretation made by the
NAFTA Commission,1134 the point is that such interpretation was debated at judicial, not only political, levels, and that only subsequent arbitration Tribunals had the last word regarding its lawfulness. The latest development regarding this Interpretation is contained in the Final Award on Jurisdiction and Merits in Methanex Corporation vs. United States.
The interpretation is available at http://www.dfait-maeci.gc.ca/tna-nae/NAFTA-Interpr-e.asp . 1133 In the Matter of Arbitration Under Chapter Eleven of the North American Free Trade Agreement Between Pope & Talbot Inc. and Government of Canada. Award in Respect of Damages. (May 31, 2002) % 46 & 7. 1134 See Todd Weiler, "Current Legal Trends in the Americas: NAFTA Chapter 11 Jurisprudence: Coming Along Nicely" (2002-2003) 9 Sw. J. of L. & Trade Am. 245 at 261-62 See also in this regard, Jack J. Coe, "Symposium: International Commercial Arbitration: Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods" (2003) 36 Van. J. Transnat'l L. 1381 at 1438. 475
There, the Tribunal avoided referring to the legality of the Interpretation and instead framed it as a subsequent agreement between the NAFTA parties, on the basis of Article
31.3 of the Vienna Convention. Moreover, the Methanex Tribunal almost declared that the FTC's interpretation could even amend the NAFTA treaty, by stating that "Article 39 of the Vienna Convention of the Law of Treaties says imply that ""[a] treaty may be amended by agreement between the parties". No particular mode of amendment is required, and many treaties provide for their amendment by agreement without requiring re-ratification ..."1136 One can infer from this reasoning that the FTC's interpretation and the NAFTA treaty would both stand as agreements between the parties, and therefore it would be of little use to debate whether the former must conform with the latter.
While the NAFTA experience evidences that to distinguish in substance an interpretation of a treaty from an amendment is not a clear-cut subject matter, it is important to highlight that the analysis of the Methanex Tribunal—placing the NAFTA treaty and its FTC's interpretations virtually at the same hierarchical level— may not be applied to WTO treaty law and its MC's or GC's Interpretations. In effect, there is a significant difference in both treaties regarding formal limits to the power to issue Interpretations by WTO and NAFTA political bodies. While Article IX of the WTO Agreement, as was seen above, places restrictions on the MC and the GC as interpreters of the covered agreements, NAFTA
Article 1131.2 does not impose express limits on the Free Trade Commission when
issuing its interpretations. In effect, this provision sets forth that "[a]n interpretation by the
1135 Final Award of the Tribunal on Jurisdiction and Merits, In the Matter of An International Arbitration Under Chapter 11 of the North American Free Trade Agreement and the UNCITRAL Arbitration Rules Between Methanex Corporation and the United States of America, (Aug. 3, 2005), Part II. Chapter B. at 9 & 10. (available at http://www.naftaclaims.com/disputes_us_6.htm) [Methanex]. 476
Commission of a provision of this Agreement shall be binding on a Tribunal established under this Section." Given this lack of treaty restriction on the exercise of the Free Trade
Commission's power to issue interpretations, the above-mentioned reasoning of the
Methanex Tribunal regarding interpretations in NAFTA is valid for this treaty in the sense that amendments to the NAFTA treaty can be made through interpretations by NAFTA parties, but it cannot be imported into the realm of the MC's or GC's Interpretations of
WTO law, which have a specific constraint: they cannot amend the covered agreements.
Although this difference in wording regarding the extent of the interpretative powers of the NAFTA Commission and of the WTO MC or GC deserves a more detailed analysis that goes beyond the scope of this thesis, it is possible to say that the existence of this
difference in itself allows for making a distinction between the scope of the two bodies'
interpretative powers to amend their particular treaties.
In the WTO context, the difficulty in distinguishing a MC or GC Interpretation from an
amendment of WTO treaty law is increased by the apparently broad approach to the scope
of Interpretations that the AB adopted in its report on United States—Tax Treatment for
"Foreign Sales Corporations." There the AB stated that "[i]n our view, an authoritative,
and generally binding, interpretation of Article XVI:4 would, in all probability, have been
perceived by the contracting parties as affecting their rights and obligations ..."ll37 In a
footnote to this paragraph, the AB stated more precisely that
The distinction between an authoritative interpretation and an interpretation made in dispute settlement proceedings is made clear in the WTO Agreement.
1136 Ibid. Part IV. Chapter C. Page 10. 1137 United States—Tax Treatment for "Foreign Sales Corporations (1999), WTO Doc. WT7DS108/AB/R at para. 112 (Appellate Body Report), online: WTO
Under the WTO Agreement, an authoritative interpretation by the Members of the WTO, under Article IX:2 of that Agreement, is to be distinguished from the rulings and recommendations of the DSB, made on the basis of panel and Appellate Body Reports. In terms of Article 3.2 of the DSU, the rulings and recommendations of the DSB serve only 'to clarify the existing provisions of those agreements' and 'cannot add to or diminish the rights and obligations provided in the covered agreements.'
In other words, the AB seems to be saying that the existing restriction on panels and the
AB ability to increase Members' rights and obligations is not imposed on the MC and the
GC as interpreter of the covered agreements. Therefore, both bodies could increase such rights and obligations when issuing authoritative Interpretations.
This obiter dicta appears to expand the power of the MC or the GC to make
Interpretations of WTO law in the sense that they can create rights and obligations, which one would think is the effective consequence of amending the WTO covered agreements.
Seemingly, this finding would imply in practical terms that the AB has given unfettered powers to the WTO political bodies to issue interpretations, so debates on whether they constitute amendments would be merely academic. Nonetheless, this dictum could hardly have such a broad reading. In effect, Clauss-Dieter Ehlermann, then a member of the
Appellate Body, and Lothar Ehring have commented that, despite the above-mentioned
AB statement, the last sentence of Article IX.2 constitutes in fact a substantive limit to the enactment of MC or GC Interpretations.1139
In sum, Article IX.2 of the WTO Agreements establishes that Interpretations must be adopted by a qualified majority and have a substantial restriction: they cannot imply an
Ibid, at para, at 112, n. 127. 478
amendment of the interpreted WTO treaty provision.1140 Consequently, the existence of procedural and substantive ultra vires Interpretations of the MC or the GC are possible as matter of WTO treaty law. Therefore it could be contended that the first requirement for the existence of judicial review within the WTO is present.
IV. 1.2 The Second Requirement for the Existence of Judicial Review Within the WTO: Jurisdiction of a Panel and the AB to Assess the Legality of Alleged Ultra Vires WTO Ministerial Conference or General Council Interpretations
As Ehlermann & Ehring rightly say, any discussion regarding whether or not an
Interpretation is an amendment would be merely academic if there were not an
adjudication body able to declare the illegality of an Interpretation for violation of Article
IX.2.1141 This could not be the case within the WTO, which has in place a dispute
settlement system. The question then would be if this system had jurisdiction to decide the
conformity with Article IX.2 of the WTO Agreement of MC or GC Interpretations.
Leaving aside policy arguments in favour of or against the jurisdiction of a panel and the
AB to hear such a case, there would be several grounds that could be put forward by the
AB to support a conclusion that a panel and the AB have the authority to adjudicate any
See Ehlermann & Ehring, "Decision-Making", supra note 817 at 59. 1140 Ehlermann & Ehring provides a good analysis of the various perspectives regarding the scope of the MC and GC powers to issue Interpretations and I refer readers to their article. However, without having to go through their analysis, I share their views that these Interpretations do not have to follow the rules of the Vienna Convention on interpretation of treaties. (See Ehlermann & Ehring, "Interpretations", supra note 1125 at 808-10), and that Interpretations are binding on Members (See ibid, at 807). Moreover, given that the point in this section is only to show that there can be procedural or substantive ultra vires Interpretations, and it is not to analyze under which specific conditions Interpretations could be considered to be ultra vires, an exercise that Ehlermann & Ehring dealt with in detail, I do not think it necessary duplicate their analysis and I refer to their article in this respect too. 1141 See ibid. 479
dispute between Members regarding the compliance of an Interpretation with Article IX.2
of the WTO Agreement.
First of all, Article 3.2 of the DSU could provide an explicit basis for the jurisdiction,
given that it states that "the dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the
covered agreements...."1142 Thus, complaining Members could argue, and a panel or the
AB declare, that the WTO dispute settlement body could not deny the given Members their right to determine whether or not the Interpretation at issue has affected their rights
and obligations in a way that could only be made through amendments of WTO law. Put
differently, the fact that the dispute settlement system is there to preserve the rights and
obligations of WTO Members could mean that, whenever a Member argues that its WTO
rights and obligations have been violated, the dispute settlement system has jurisdiction to hear and decide the case. Article 3.2 of the DSU does not make any distinction or limit the
role of the system to any particular situation where such rights and obligations are at issue,
so this provision would even cover GC or MC Interpretations when a certain Member or
set of Members consider that a specific Interpretation affects their rights and obligations.
A very close approach to this line of reasoning was adopted by the AB in its report on
Mexico - Taxes on Soft Drinks. There the AB declared that, on the basis of Article 3.3 of
1142 The WTO Agreement, which contains Article IX.2, is one of the covered agreements by virtue of Article 1 of the DSU, and of its inclusion in Appendix 1 of this Understanding. So, a dispute regarding compliance with Article IX.2 is one in which the rights and obligations of Members under the covered agreements would be at issue. 480
the DSU, Members had a broad right to resort to the WTO dispute settlement system in
order to preserve their rights and obligations and that a refusal to adjudicate a WTO
dispute would diminish this right. The AB pointed out clearly:
[A]rticle 23 of the DSU states that Members of the WTO shall have recourse to the rules and procedures of the DSU when they 'seek the redress of a violation of obligations ... under the covered agreements'. As the Appellate Body has previously explained, 'allowing measures to be the subject of dispute settlement proceedings ... is consistent with the comprehensive nature of the right of Members to resort to dispute settlement to 'preserve [their] rights and obligations ... under the covered agreements, and to clarify the existing provisions of those agreements'.' We also note in this regard that Article 3.3 of the DSU provides that the 'prompt settlement of situations in which a Member considers that any benefits accruing to it directly or indirectly under the covered agreements are being impaired by measures taken by another Member is essential to the effective functioning of the WTO'. The fact that a Member may initiate a WTO dispute whenever it considers that 'any benefits accruing to [that Member] are being impaired by measures taken by another Member' implies that that Member is entitled to a ruling by a WTO panel.1143
Despite that this statement was made in the context of an inter-State dispute in which the
respondent party, Mexico, was arguing that the given WTO panel although vested with jurisdiction, should decline it in favour of a NAFTA panel, the statement could be entirely
applicable - and certainly, it would be invoked - in the assessment of whether a panel and
the Appellate Body can review the conformity with Article IX.2 of MC or GC
Interpretations. Here, the complaining Member could argue that the Interpretation is
impairing directly or indirectly its rights and obligations, and, on the basis of the said
passage, the AB could hold that the Member has the right to call on the DSB, and
specifically on a panel and eventually on the AB to decide the issue, and that such
Member is entitled to a final ruling on this issue.
See Mexico - Taxes on Soft Drinks AB Report, supra note 106 at para. 52 [footnotes omitted]. 481
A first ground to contest a panel or AB's jurisdiction in such a circumstance would be to
argue that nowhere in the DSU is there a norm providing that the Dispute Settlement Body
can hear and adjudicate conflicts regarding compliance with Article IX.2 of GC and MC
Interpretations. Ehlermann and Ehring argue that "the WTO's impressive dispute
settlement system is only available for Members who intend to sue each other for breaches
of WTO law (in the most typical case). No one - no Member, no Council and certainly not the WTO Secretariat - can bring a dispute against the WTO as a whole or a WTO body more specifically in order to challenge the validity of a particular decision adopted by that body..."1144
The AB could deploy two lines of reasoning to reach an opposite conclusion. The first is that according to its jurisprudence, the principle regarding jurisdiction within the Dispute
Settlement Body is not whether the given issue is explicitly contemplated as subject of
adjudication by the DSB, but whether it is explicitly excluded from adjudication. Indeed,
so far, the Appellate Body has held that only the text of the DSU can exclude panels and
the Appellate Body—or the Dispute Settlement Body—from having jurisdiction to solve
disputes regarding the covered agreements. For instance, as was seen in Part III.3.5.4.2.2.1
of Chapter III, this was the approach adopted by the Appellate Body in India -
Quantitative Restrictions when it examined if panels and the Appellate Body had jurisdiction to assess the legality of import restrictions imposed on the basis of balance-of-
payments difficulties, an issue that was argued to fall within the exclusive ambit of a
WTO political body, the Balance of Payments Committee, and consequently out of the jurisdiction of panels and the AB. The AB asserted jurisdiction and stated:
1144 Ehlermann & Ehring, "Interpretations", supra note 1125 at 809. 482
Article 1.2 of the DSU provides in relevant part:
The rules and procedures of this Understanding shall apply subject to such special or additional rules and procedures on dispute settlement contained in the covered agreements as are identified in Appendix 2 to this Understanding.
Appendix 2 does not identify any special or additional dispute settlement rules or procedures relating to balance-of-payments restrictions. It does not mention Article XVIILB of the GATT 1994, or any of its paragraphs. The DSU is, therefore, fully applicable to the current dispute.1145
No such a constraint regarding Article IX.2 is provided for in Appendix 2 of the DSU. On the contrary, its Appendix 1, titled AGREEMENTS COVERED BY THE
UNDERSTANDING, expressly includes the Agreement Establishing the World Trade
Organization. So this argument, grounded on AB jurisprudence, would support the jurisdiction of the DSB to adjudicate conflicts regarding Interpretations considered to violate Article IX.2 of the WTO Agreement.
On the other hand, there would be a second argument, also based on past Appellate Body jurisprudence, to respond to the thesis that there could not be judicial review of MC or GC
Interpretations because the DSU does not specifically contemplate it. The argument is that the Appellate Body has determined that it has jurisdiction to decide appeals to Article 21.5 panel reports, despite the fact that nowhere in the DSU is such appeal contemplated, as was seen in Part III.3.5.4.2.1 of Chapter III.
Obviously, there is an immense difference between recognizing jurisdiction to adjudicate appeals of compliance panel reports, and to assert jurisdiction to review the legality of MC 483 or GC Interpretations. However, the point that it is worth making is that there are already an event in which the AB has recognized the existence of its jurisdiction despite the fact that this is not explicitly contemplated by the DSU.
From these two Appellate Body rulings could be inferred that the jurisdiction of the WTO
Dispute Settlement System is not only restricted to the controversies explicitly incorporated in the DSU, but that the rule is another: lack of jurisdiction is determined by express exclusion, and the judicial review of MC or GC Interpretations is not expressly excluded.
The second potential argument supporting the lack of jurisdiction of the DSB would be the high political character of MC or GC Interpretations, which by itself would make them beyond any judicial review.114 Although such political character is unquestionable, it is worth-mentioning that according to former members of the Appellate Body, a political questions doctrine has little role to play within the WTO dispute settlement system, as was
seen in Part III.3.4.2 of Chapter III.
It could be said as a partial conclusion that the Appellate Body could ground on two reasons the jurisdiction of the WTO dispute settlement system to evaluate the conformity of MC or GC Interpretations - both in terms of procedural and substantive requirements - with Article IX.2 of the WTO Agreement. First, as the Appellate Body stated in Mexico -
India - Quantitative Restrictions AB Report, supra note 1004 para. 86. ii46 JJ^ argument couid be made only against a claim of the Interpretation being an amendment, or, in other words, of being a substantive ultra vires act. On the contrary, if what is claimed is that the Interpretation was 484
Taxes on Soft Drinks that once a Member alleges a violation of its rights the Member is entitled to a ruling by the DSB in general, or a panel or the AB, in particular. Second, analogous to what the Appellate Body declared in India - Quantitative Restrictions, disputes regarding compliance with Article IX.2 are not excluded from adjudication in the
Appendix 2 to the DSU.
However, the existence of judicial review of MC or GC Interpretations is one thing and the declaration of non-conformity another. One could expect from the Appellate Body the development of the presumption of validity of MC or GC Interpretations, similar to the presumption of lawfulness of U.N. Security Council resolutions articulated by the
International Court of Justice in Namibia,1141 or of constitutionality, created by the U.S.
Supreme Court regarding federal legislation.
In effect, the unquestionable legitimacy that the WTO highest political bodies lend to their
Interpretations would suggest that the WTO quasi-judiciary should assess them presuming the conformity with Article IX.2, in the sense that they were properly approved in procedural terms,1148 and respected the substantive limit of the said provision. Any embracing of the presumption of conformity of Interpretations would mean that the
enacted without the majority established in Article IX, the argument does not help because there is nothing politically relevant in violating this key mandatory requirement, if this had been the case. See above text accompanying note 677. 1148 As to the procedural issues it could be useful to draw on the British administrative law distinction between mandatory and directory requirements, which draws the line between valid and invalid administrative acts. Lack of the former makes administrative decisions void, while absence of the latter does not. (See Sir William Wade & Christopher Forsyth, Administrative Law, 7 ed. (Oxford: Clarendon Press, 1994) at 253). In this sense, approval by less that third-fourths of the Members would invalidate the Interpretation, given that this majority would be a mandatory requirement, while the adoption of a MC or GC recommendation without a previous recommendation by the Council overseeing the interpreted Multilateral Agreements would not, due to its character as a directory requirement. Ehlermann and Ehring 485
Member claiming the illegality must meet a significant burden of proof to succeed in its challenge.
IV.1.3 Some Procedural Aspects of the WTO Judicial Review
Introducing the judicial review of MC or GC Interpretations would compel the Appellate
Body to also make determinations regarding certain important procedural issues. Among them are two: (i) which Members could claim the illegality of these Interpretations; and
(ii) how they could do it: as respondents and as claimants.
IV.1.3.1 Which Members Could Raise the Inconsistency of the MC or the GC Interpretations?
In principle, there is no limitation on Members resorting to the dispute settlement system, because Article 3.7 of the DSU leaves up to their judgment the issue of taking a dispute before the DSB. Despite this broad right, the Appellate Body could declare that not all
Members should be allowed to argue the illegality of an Interpretation.
In effect, those Members who contributed to the enactment of the given Interpretation should not be allowed to later question its validity. The principle of good faith could provide grounds for such exclusion.1149 Indeed, it would be contrary to this principle if a
suggest this result although without providing any direct or analogical justification. See Ehlermann & Ehring, "Interpretations", supra note 1125 at 810, n. 18. 1149 The principle of good faith has been widely recognized as relevant to the interpretation and application of the WTO covered agreements. In a statement relevant for the purpose of this brief analysis, the AB declared in EC - Sardines: [W]e must assume that Members of the WTO will abide by their treaty obligations in good faith, as required by the principle of pacta sunt servanda articulated in Article 26 of the Vienna Convention. ... 486
Member who supported the Interpretation and voted for it could later allege its illegality to escape the consequences associated with the adoption of measures contravening the given
Interpretation.
IV.1.3.2 How Could Members Claim that an Interpretation Violates Article IX.2 of the WTO Agreement?
IV.1.3.2.1. The Illegality of MC or GC Interpretations as a Defence
The first situation and most likely situation in which the consistency of the MC or the GC
Interpretations could be at issue is one in which the respective Interpretation is the norm
invoked by a complaining Member to have been violated by the respective respondent
Member. If this is the case, a possible respondent's defence would be to argue that the
Interpretation is inconsistent with Article IX.2, so it should not be applied by the given panel or the AB, and therefore that the respondent's measure would be valid.
In this situation, the issue of the panel's or the Appellate Body's jurisdiction to respond to this defence would take place within normal dispute settlement proceedings.1150 It means
that if the respondent made a prima facie case of illegality of the Interpretation, the burden
EC - Sardines AB Report, supra note 957 at para. 278. For a complete assessment of the relevance of this principle in WTO law, see Helge Elisabeth Zeitler, '"Good Faith' in the WTO Jursprudence. Necessary Balancing Element or an Open Door to Judicial Activism?" (2005) 8 J. of Int'l Econ. L. 721. A detailed analysis of the relevance of the principle of good faith to prevent some Members from claiming the illegality of an Interpretation they supported is worth making but it is not included here. The thesis limits itself to arguing that restrictions to claim this illegality should exist and to sketching a potential ground for them. 150 Ehlermann & Ehring deal summarily with this point. See Ehlermann & Ehring, "Interpretations", supra note 1125 at 809-10. The issue of the legality of Interpretations could also arise if a Member claims that there has been a breach of a covered agreement by another member and the respondent argues that its measure is not a breach relying on the Interpretation which the claiming Member argues is ultra vires. 487 of proof was shifted to the complainant,1151 which would have had to refute such defence
in terms of facts and law in order to prevail in the dispute.
Moreover, the respondent's defence of illegality of an MC or GC Interpretation would have implications well beyond the particular dispute at issue and its parties, and could have potential effects on the whole WTO Membership if the Interpretation were declared
inconsistent with Article IX.2. So it would be appropriate that the given panel used its procedural discretion to make sure that the Interpretation would be properly defended by
WTO through the General Council or the Ministerial Conference, as it is the case in the
United States, whose attorney general is called on by the given federal court to present her
views regarding the arguments supporting the claims of violation and, in general, those
aimed at demonstrating the legality of the legislation in question.1152
In the circumstance of the illegality of the Interpretation aroused out of a defence, Article
11 of the DSU, calling for an objective evaluation of the matter before the panel, would be
another relevant provision that a panel or the AB could invoke to assess the consistency
with Article IX.2 of the respective Interpretation that is regarded violated by the measure
adopted by the respondent Member, if this Member, as was mentioned, did not support the
said Interpretation. In effect, to recall, the AB held in Mexico - Taxes on Soft Drinks
report that
[U]nder Article 11 of the DSU, a panel is, therefore, charged with the obligation to 'make an objective assessment of the matter before it, including an objective
1151 See US - Wool Shirts and Blouses, supra note 802 at 210 [footnotes omitted]. 1152 This intervention was authorized since the enactment of the U.S. Judiciary Act of 1937. In this regards, see also J.A.C. Grant, "Judicial Control of Legislation. A Comparative Study" (1954) 3 Am. J. Comp. L. 186 at 190-92. 488
assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements.' Article 11 also requires that a panel 'make such other findings as will assist the DSB in making the recommendations or in giving die rulings provided for in the covered agreements.' It is difficult to see how a panel would fulfil that obligation if it declined to exercise validly established jurisdiction and abstained from making any finding on the matter before it.115*
The relevance of Article 11 would be two fold here. First, the evaluation of the
consistency of a MC or GC Interpretation with Article IX.2 would cleanly fall within the panel's duty to make an objective assessment of "the conformity with the relevant covered agreement" of the Interpretation at issue. Second, if the respondent Member alleged that
its measure could not be declared to be inconsistent because the Interpretation itself was
illegal, and therefore that the respondent's measure would be in conformity with the
covered agreements as they stand, the only way the DSB could make recommendations to this party would be by deciding whether the Interpretation was valid or not. Not to do so
would leave undecided a critical feature of the controversy, and it would be difficult to
envisage the DSB ordering the respondent to act in conformity with the covered
agreements, if the panel left the dispute without a decision in this specific point intimately
associated with the legality of the respondent's measure.
Additionally, the need to ensure a prompt settlement of the dispute should also be kept in
mind. Swift and strict compliance with an adverse ruling could not easily be expected if
the respondent still could claim after the adoption of the panel and Appellate Body report
by the DSB that its measure was not illegal. In this sense, the assessment of the
conformity of the given MC or GC Interpretation with Article IX.2 would be not only in
Mexico - Taxes on Soft Drinks AB Report, supra note 106 at para. 51. 489 the interest of the respondent but also in that of the complaining Member, not to mention of the WTO itself.
IV.1.3.2.2. The Illegality of the MC or GC Interpretations as a Direct Claim of Violation
Could a Member that did not support an Interpretation seek a declaration of its inconsistency with Article IX.2 directly before the DSB,1154 to obtain an abstract evaluation of the legality of the Interpretation, in a way similar to the abstract judicial review of legislation in place in some European and Latin-American countries?1155 This is a much more complex scenario, because the dispute settlement system is structured with a view to providing decisions regarding Members' measures that generate trade conflicts between them, and it does not have specific stipulations directed at solving controversies between Members and WTO political organs. However, the DSU could offer some latitude to respond to this legally complex situation, and the DSB or the panel would probably have to adopt special procedural decisions to solve a dispute in which an
Interpretation is considered to violate Article IX.2. As Ehlermann highlighted, worth recalling it here,
compared with substantive rights and obligations, procedural rights and obligations of WTO Members related to the dispute settlement procedure are less precisely defined. This lack of precision is hardly surprising in view of the historical evolution of the dispute settlement system. In interpreting the DSU, the AB had therefore to face more ambiguities and 'gaps' than in other areas of WTO law...1156
As Stone Sweet holds "Disputants tend to litigate what diplomats failed to legislate." Stone Sweet, "Governance",sM/?ra note 11 at 74, n. 12. 1155 As a historical note, the abstract constitutional review of legislation was first created in Colombia by its 1886 Constitution. See J.A.C. Grant, "Judicial Control of Legislation. A Comparative Study" (1954) 3 American Journal of Comparative Law 186 at 190-92. 1156 Ehlermann, "Reflections", supra note 819 at 701. 490
In sum, panels and the AB have dealt with gaps of the DSU, and nothing would prevent them from responding to the procedural challenges brought about by such a claim, if there are sufficient grounds in the AB case-law - as was illustrated - supporting that the complainant Member arguing that an Interpretation is violating its rights under the covered agreement has a right to a determination in this regard.
IV.1.4. Summary and Conclusion
In conclusion, if, as Ehlermann & Ehring suggest, the MC or the GC should render
Interpretations as a norm-generating tool for the WTO, although of limited scope, the situation would be prone for the Appellate Body's introduction of a new transformation to the WTO dispute settlement system: judicial review, as was the case of the International
Court of Justice once the U.N. Security Council started playing a significant role within the Organization. To declare the existence of such judicial review jurisdiction, the AB could rely without difficulty on its own case law.
This would be so because the AB could declare that the two requirements for the existence of judicial review would be met by the WTO. First, the last sentence of Article IX.2 of the
WTO Agreement imposes procedural and substantive requirements on the interpretative powers of the MC and the GC, and therefore it makes the existence of ultra vires
Interpretations possible, as a matter of WTO law. And second, there would be multiple legal arguments and existing WTO jurisprudence that could be invoked by the Appellate 491
Body to ground the DSB's jurisdiction—and in particular that of a panel and the AB—to assess the conformity of Interpretations with Article IX.2. These arguments would mainly be, first, that Members' access to the DSB exists whenever they consider that their rights and obligations have been impaired, which would be the consequence of the illegal adoption of the Interpretation at issue, from a particular Member's perspective. Second, because panels and AB jurisdiction in this situation is not explicitly excluded by the DSU.
As to the Members that could argue the illegality of any given Interpretation, the
Appellate Body could posit that only those Members that did not vote for the
Interpretation could do it. The circumstances in which they could raise such an issue would be, first, as a defence in normal dispute settlement proceedings, and, second, as a direct claim before the DSB, in which case, panels and the AB would have to adjust the dispute settlement process to deal with this exceptional controversy between a Member and any of the top WTO political bodies.
This section also suggests that, as part of the transformation, the Appellate Body could
attach to the judicial review of Interpretations the recognition of the presumption of conformity of the given Interpretation with Article IX.2, paralleling the presumption of constitutionality of legislation subject to judicial review by Constitutional Courts or of validity of U.N. Security Council resolutions as developed by the International Court of
Justice. So, Members claiming the illegality would have a considerable burden of proof to
succeed in its challenge. 492
IV.2. The Appellate Body and the Effective Application of Norms Favouring Developing Country Members
Michael Reisman notes that both the U.S. Supreme Court and the International Court of
Justice have sometimes adopted a position of protection of the "weak" party in disputes with the "strong" one. He says that
In certain periods, the United States Supreme Court, in the course of performing its function of constitutional control, has tried to protect and even enhance the rights of the weakest members of society. In the 1970s, as the opportunity presented itself, the International Court of Justice began to develop a comparable function. Beginning with the Nuclear Test cases, continuing through Nicaragua, and, most recently, in the jurisdictional phase of Nauru, the Court indicated that it was prepared to depart from the classical and strict consensual basis of its operation and assert its jurisdiction over disputes on the basis of what would previously have been considered weak or even questionable grounds. Common to these cases was a gross disparity in the power positions of the states parties, with the weaker party requesting judicial intervention.1157
On the other hand, Hudec, assessing the balance of the GATT dispute settlement mechanism, concludes that it worked better for the strong. In his words:
The quantitative analysis of individual country performance (during the operation of the GATT dispute settlement system) is at the margin, more responsive to the interest of the strong than to the interest of the weak. The evidence for this hypothesis occurs in all phases of performance—in the rates of success as complainants, in the rates of non-compliance as defendants, in the quality of the outcomes achieved, and in the extent to which complainants are 11 SR able to carry complaints forward to a decision.
Today, the system seems to work if not well at least better for developing countries in their disputes with developed country Members and it is possible to find important decisions in which the former have prevailed over the latter.1159 However, disputes involving developing and developed country Members are not rare and the issue of the
Reisman, "Crisis", supra note 679 at 84-85. Hudec, Enforcing International Law, supra note 767 at 353. 493
approach to be taken by the Appellate Body in some circumstances may be important to
analyse.
But before proceeding, it is important to make it clear that it is not suggested here that the possible transformation of the WTO dispute settlement system with a view to being more responsive to the situation of developing or least developed country Members should
result in bias in their favour against developed country Members. There is no doubt that
such a transformation will never be introduced by the AB under any circumstance and
there is no point in attempting to suggest it.
The transformation recommended is of a much more limited scope: interpreting the DSU
in the way that enhances the position of developing country Members without affecting the impartiality of the WTO dispute settlement of the system as a whole and the rights of
the particular developed country Member of the dispute in question. The AB has already
taken steps in this direction, as evidenced by the AB's recognition of possibility of using
private counsel established in its report in EC - Bananas}160 Such possibility enhances
developing country Members' position in WTO dispute settlement system without
affecting its impartiality at all. The transformation suggested here to be introduced by the
Appellate Body is a step forward in this direction.
Two AB reports illustrate well this situation. EC - Sardines and US - Gambling among others. 1160 The AB held in its report in [W]e also note that representation by counsel of government's own choice may well be a matter of particular significance - especially for developing-country Members - to enable them to participate fully in dispute settlement proceedings.... See EC - Bananas AB Report, supra note 131 at 12. 494
To this end, and among others, there is a potential transformation that may be directed by the Appellate Body: to enhance the control of disputes by allowing panels to go beyond the terms of reference for the benefit of developing country Members under certain conditions aimed at ensuring that developed countries do not end up harmed by this transformation. In other words, the transformation would be possible only on the basis of fully ensuring developed country Members' rights within panel proceedings.
It is also important to highlight that this is a transformation that is clearly advocated in this thesis; this advocation, therefore, constitutes a departure from the general analytical and descriptive character of this research.
IV.2.1. The Appellate Body's Control over the Terms of Reference to Favour Developing and Least Developed Country Members
It was seen in Part III.3.5.4.1 of Chapter III that one of the transformations introduced by the Appellate Body has been to allow panels and itself to gain more control over disputes.
However, one of the areas of WTO settlement where Members still retain virtual control is the terms of reference of WTO trade conflicts. The AB has introduced some transformations in the form of techniques whose application allows panels and the AB to go slightly beyond the terms of reference set by complaining parties, and this thesis suggests another circumstance in which this would be possible for the benefit of developing and least developed country members, without affecting the impartiality of the
WTO dispute settlement system 495
In order to present the transformation suggested this section is divided into four parts. The first part presents the dominant jurisprudence set by the AB with regard to terms of reference, marked by a full respect for what complaining Members have determined their disputes are about. The second part shows those few and timid exceptional attempts made by the Appellate Body to assume more control over disputes by going beyond the terms of reference imposed by complaining Members. The third part advances the reasons why the
WTO judiciary could add another exception to its jurisprudence regarding the strictness of the terms of reference. According to this new exception, panels and the AB could, under very limited and special circumstances, go beyond the terms of reference in disputes in which developing or least developed country Members act as complainants against developed countries and the former have not pleaded their case adequately. If this situation arises, panels and the Appellate Body could decide cases of this sort on the basis of claims not included by the former in the terms of reference, but taken up later once they were identified by third parties during dispute settlement proceedings, under the condition that developed country respondent Members' due process right was ensured. This part will also illustrate that this new transformation has support in extant Appellate Body and past
GATT case law. Finally, the fourth part summarizes the whole section. 496
IV.2.1.1 The Appellate Body and Its Established Jurisprudence Regarding the Terms of Reference of Disputes
Based on Article 6.2 of the DSU,1161 the Appellate Body has so far promoted a WTO quasi-judiciary that declares the law regarding trade disputes, leaving in the hands of parties, particularly complaining Members, the power to fix the scope of the dispute by indicating the claims of violation, which in turn determines the jurisdiction of panels.1162
Thus, complaining Members must identify what provisions of the covered agreements are, in their view, violated by the given respondent's measure at issue.
When interpreting this provision, the AB has consistently ruled that the terms of reference, namely, the identification of the measure at issue and of the provisions of the covered agreements that the complaining Member deems violated, determine the jurisdiction of panels. Therefore, the AB has admonished panels when they have ruled on claims not made by the complaining party:
The jurisdiction of a panel is established by that panel's terms of reference, which are governed by Article 7 of the DSU. A panel may consider only those claims that it has the authority to consider under its terms of reference. A panel cannot assume jurisdiction that it does not have. In this case, Article 63 was not within the Panel's jurisdiction, as defined by its terms of reference. Therefore,
The Article provides as follows: The request for the establishment of a panel shall be made in writing. It shall indicate whether consultations were held, identify the specific measures at issue and provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly. In case the applicant requests the establishment of a panel with other than standard terms of reference, the written request shall include the proposed text of special terms of reference. WTO Legal Texts, supra note 4 at 359. 1162 See infra text accompanying note 1164. 1163 Brazil—Measures Affecting Dessicated Coconut (1997), WTO Doc. WT/DS22/AB/R at 21 (Appellate Body Report), online: WTO
the Panel had no authority to consider the alternative claim by the United States under Article 63.1164
Perhaps one of the strongest decisions affirming the strictness of the terms of reference is the Appellate Body's report in Chile - Price Band System.1165 Briefly, the dispute
involved Argentina as complainant and Chile as respondent, with Argentina claiming that the Chilean price band system was inconsistent with Article II of the GATT, a provision that contains several paragraphs and subparagraphs and therefore a set of different
obligations. Argentina made specific claims regarding the violation of Article 11.1(b), first
sentence, but omitted any claim as to Article II. 1(b), second sentence. Both the United
States and the European Communities highlighted that the price band system would violate Article 11.1(b), second sentence,1166 and the panel even questioned Argentina regarding this provision. Argentina answered in very general terms, basically restating the content of this provision, without making any claim concerning it.1169 At the
end, the panel decided that the Chilean price band system was inconsistent with Article
II. 1(b), second sentence.1170 Chile appealed the finding of violation, claiming that the panel had gone beyond its terms of reference and had therefore violated Article 11 of the
DSU.1171
1164 India—Patents (US) AB Report, supra note 93 at para. 92. Chile — Price Band System AB Report, supra note 810. 1166 See infra note 1178. 1167 See infra note 1174. 1168 See infra notel 175. 1169 See infra note 1175. 1170 See Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (2002), WTO Doc. WT7DS207/R at para. 8.1(a) (Panel Report), online: WTO
1 179
The Appellate Body stated that Article II was within the panel's terms of reference, however, these were insufficient grounds for the panel to decide on, because Argentina had made no claim regarding this provision.1173 On appeal, Argentina tried to sway the AB with different arguments aimed at demonstrating that it had indeed made a claim. First,
Argentina stated that it had made a claim based on Article II. 1(b), second sentence, when
it had answered a specific and direct question by the panel regarding this provision.1174
The AB analyzed the answer and deemed that it had not gone beyond restating the content of the foregoing provision, so it could not contain any claim.1175 Second, Argentina
attempted to derive the existence of a claim from certain arguments that it had made 1176 regarding a provision of the Agreement on Agriculture. The AB answer was clear: [W]ith this argument, Argentina appears to suggest that a claim may be made implicitly, and need not be made explicitly. We do not agree. The requirements of due process and orderly procedure dictate that claims must be made explicitly in WTO dispute settlement. Only in this way will the panel, other parties, and third parties understand that a specific claim has been made, be aware of its dimensions, and have an adequate opportunity to address and respond to it. WTO Members must not be left to wonder what specific claims have been made against them in dispute settlement...
Third, Argentina sought to rest its claim on third parties' participation by stating that the
United States and the European Union, which had acted as third parties in this dispute, had
made this claim when they had answered a question by the panel as to Article II: 1(b),
second sentence. The AB also rejected the possibility of allowing complaining parties to
rely on third parties to add claims not raised by the former. It indicated:
1 See ibid, at para. 150. 1173 The AB analyzed whether Argentina had made a claim under Article II. 1(b), second sentence, during the panel proceedings. It concluded that it had not, neither in its first submission to the panel (See ibid, paras. 155-57) nor in subsequent submissions (See ibid, at para. 160). 1174 See ibid, at para. 160. 1175 See ibid. 1116 See ibid, at para. 164. 499
Argentina contends also that two third parties—the United States and the European Communities—'provided argumentation regarding the second sentence of Article II: 1(b).' In support of this contention, Argentina cites those third parties' responses to Question 3 posed by the Panel. However, even if these responses could be interpreted in the way Argentina would have us do—an issue which we need not decide in this appeal—these responses could not, in any event, assist Argentina in making a claim under the second sentence of Article II: 1(b). These are the statements of third parties to this dispute. Third parties to a dispute cannot make claims. It was for Argentina, as the claimant, to make its claim; Argentina cannot rely on third parties to do so on its behalf. Moreover, we note that Argentina did not adopt these arguments of the third parties in 1 178 subsequent proceedings.
Finally, the AB rejected Argentina's argument that the panel had the right or the duty to decide on the basis of claims not raised by Argentina.1179 The AB concluded that:
Contrary to what Argentina argues, given our finding that Argentina has not made a claim under the second sentence of Article II: 1(b), the Panel in this case had neither a 'right' nor a 'duty' to develop its own legal reasoning to support a claim under the second sentence. The Panel was not entitled to make a claim for Argentina, or to develop its own legal reasoning on a provision that was not at issue.1180
1177 ibid. 1178 Ibid, at para. 163. [Footnotes omitted]. This statement is consistent with previous WTO jurisprudence. For instance, the compliance panel in US - Shrimp pointed out that: [T]hird parties also have formulated a number of claims and arguments in their submissions and at the hearing. In accordance with practice of other panels under the GATT 1947 and the WTO Agreement, we have decided to consider only those claims of third parties that have been raised by the parties themselves." (Footnote 164 original). See the report of the panel on Japan—Trade in Semiconductors, adopted on 4 May 1988, BISD/35S/116, % 98, where the panel stated that a panel is not required to make findings on issues raised solely by interested third parties. Japan—Trade in Semiconductors, adopted on 4 May 1988, BISD/35S/116, f 98. See also the report on Australia—Salmon- recourse by Canada to Article 21.5 of the DSU. Op. Cit., where the panel did not formally address the question of the absence of consultations pursuant to Article 4 of the DSU raised by the European Communities as a third party. United States—Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 by Malaysia (2001), WTO Doc. WT/DS58/RW at para 5.11 (Panel Report), online: WTO
On the whole issue of the role of third parties in WTO dispute settlement proceedings, see Nick Novelli, "Member Intervention in World Trade Organization Dispute Settlement Proceedings After EC—Sardines: The Rules, Jurisprudence, and Controversy" (2003) 37 J. of World Trade 673. 1179 See Chile - Price Band System AB Report, supra note 810 at para. 63. 1180 Ibid, at para. 168 [Footnotes omitted]. 500
Having denied Argentina any way that could lead to having made a claim under Article
II: 1(b), second sentence, the Appellate Body held that
[B]ecause [the panel] made a finding on a provision that was not before it, the Panel, therefore, did not make an objective assessment of the matter before it, as required by Article 11. Rather, the Panel made a finding on a matter that was not before it. In doing so, the Panel acted ultra petita and inconsistently with Article lloftheDSU.118Y
The AB concluded that due process was at issue when deciding a dispute on the basis of claims not raised by the complaining party. The AB held that:
[H]owever, in making "an objective assessment of the matter before it", a panel is also duty bound to ensure that due process is respected. Due process is an obligation inherent in the WTO dispute settlement system. A panel will fail in the duty to respect due process if it makes a finding on a matter that is not before it, because it will thereby fail to accord to a party a fair right of response. In this case, because the Panel did not give Chile a fair right of response on this issue, we find that the Panel failed to accord to Chile the due process rights to which it is entitled under the DSU.1182
Taking into account all these statements, one could easily assume that the control over terms of reference lies exclusively with complaining Members and that the WTO judiciary has no room to attempt to free itself from such control and has always to decide disputes
1 1 on on the basis of claims made by complainants. However, this well-established
1181 Ibid, at para. 173. 1182 Ibid, at para. 176. 1183 For a complete analysis of this jurisprudence, see Joel Trachtman, "Jurisdiction in WTO dispute settlement" in Yerxa & Wilson, supra note 865 This jurisprudence is also consistent with conventional wisdom regarding the role of international courts. For instance, Jennings holds that I believe ... - and I accept that this is not a condition which has always been thought as important by the International Court itself, or even by arbitral tribunals ... - that a judge should hesitate to rest a decision on a point of pure law if the parties had not argued it, or indicated that they were aware of it, before the court ... The reason is this: where a decision is not based upon arguments which the parties themselves have thought of and argued, there must always be an uneasiness that it was not that the new point was felt to be juridically compelling, but that the decision came first and the legal reason was found later... 501 jurisprudence has a few, limited exceptions. Indeed, scattered within the immense body of
the WTO judiciary's rulings, there are a very few, timid tools that have been deployed—
and rarely used—by the Appellate Body, aimed at freeing it from the strictness of the
terms of reference. In other words, there exist a very few exceptions under which the
Appellate Body has allowed panels to gain some control over the terms of reference in the
sense that they have resolved issues slightly beyond the framework set by complaining
parties.
IV.2.1.2 The WTO Judiciary's Exceptional Attempts to Attenuate the Strictness of the Terms of Reference Established by Complaining Parties
Without impairing the integrity of the WTO jurisprudence regarding terms of reference,
the AB has on rare occasions gone, not explicitly but implicitly, a bit beyond such terms
of reference. The reasons for doing so exceptionally might well be the same as those for
which the AB have had to assert more control over WTO disputes. First, not to do so
could leave the dispute unresolved. Second, the dispute could be better adjudicated by
surpassing in a very limited degree the terms of reference set by complaining parties. In
order to justify going a bit further than the terms of reference, when the dispute at issue
has required doing so, the AB has developed a few argumentative tools or invoked in an
original way provisions of the DSU.
It is also important to make clear that the existence of these limited exceptions cannot be
seen as evidence of a far-reaching purpose on the part of the AB to transform the system
Robert Jennings, "International Courts and International Politics" in David Freestone, Surya Subedi & Scott Davidson, eds., Contemporary Issues in International Law. A Collection of the Josephine Onoh Memorial 502 to routinely decide cases without any regard for the scope of the dispute set by complaining parties, much in the way the European Court of Justice does.1184 This is obviously not the case: the exceptions have simply implied a fine tuning of the jurisprudence as to terms of reference when the dispute or the subject matter of the case requires panels and the AB to do so. On the other hand, the use of exceptions to the jurisprudence concerning terms of reference has not been to such a degree that it has changed the subject matter of the respective disputes entirely. The subject matter has
always remained the same as that defined by the parties. Undeniably, the AB has not openly labelled their rulings as deviations from the jurisprudence of terms of reference.
However, this absence does not mean that in such situations the application of the jurisprudence is not as strict as in other cases.
Summarizing, the greater control over trade controversies by the WTO quasi-judiciary has
exceptionally and to a very limited extent also covered an area where Members reign
within dispute settlement proceedings: the terms of reference. The exigencies of good
adjudication have determined such a move by the Appellate Body.
Lectures (2002) 13 at 23. 1184 The European Court of Justice (ECJ) enjoys such control over the disputes appearing before it that it is not obliged to stay within the framework set by the disputant parties. Basically, the parties determine the content of the dispute, but the ECJ is free either to follow this content or to add new claims based on the facts before it. Commenting on this feature of the ECJ, Bengoetxea, MacCormick, and Moral Soriano manifest: If one takes the view that the Court should not depart from the claims presented by the parties and interveners, then one will probably blame the Court for engaging in judicial activism. On the contrary, if one assumes that the Court is expected to know the law, then the choice of a different applicable provision will be seen as the proper exercise of judicial discretion. Joxerramon Bengoetxea, Neil MacCormick & Leonor Moral Soriano, "Integration and Integrity in the Legal Reasoning of the European Court of Justice" in Graine de Burca and J.H.H. Weiler, eds., The European Court of Justice (Oxford: Oxford University Press, 2001) 43 at 54. [italics added]. 503
IV.2.1.2.1 Holistic Interpretation of Request for Establishment of Panels Made by Complaining Parties as a Tool to Loosen the Strictness of the Terms of Reference
The first tool that panels and the AB have at their disposal in order to assert more control over the terms of reference, when the dispute at issue so requires, is the holistic interpretation of the request for establishment of panels, which sets such terms of reference of panels and the AB. This is not to say that every single time panels and the
Appellate Body interpret such a request they always do so in order to go beyond the terms of reference. What is suggested is that the holistic interpretation of a complainant's request for establishment of a panel might be the tool used to decide the dispute slightly beyond the terms of reference, if the respective controversy so requires it for adequate adjudication or in order not to leave the dispute at issue without a final resolution.1185
Perhaps one of the most telling examples of a ruling in which the AB used this tool, and went slightly beyond the terms of reference in order not to leave the dispute unresolved, is the AB compliance report in United States—Tax Treatment for "Foreign Sales
The holistic interpretation of the request for establishment of panels may well have been inspired by the ICJ, which has held that it has the power to interpret parties' claims and submissions. In effect, the Court pointed out as was shown in Part II.2.1.5.4.1.2 of Chapter II that "[i]t has never been contested that the Court is entitled to interpret the submissions of the parties, and in fact is bound to do so; this is one of the attributes of its judicial function." Nuclear Test Case, supra note 482 at para. 30. The power can be deployed either to go slightly beyond the terms of reference, as the Appellate Body did in United States— Tax Treatment for "Foreign Sales Corporations". Second Recourse to Article 21.5 of the DSU, as will be seen below, or to exert self-restraint by narrowing the scope of the controversy, as the ICJ did in the aforementioned judgment, when it limited the scope of the controversy to atmospheric nuclear tests, despite the fact that it had not been explicitly delimited so by New Zealand. Such narrowing allowed the Court, as was shown, to declare later that the dispute had disappeared due to France's assurances that it would not conduct further tests of this nature. 504
Corporations". Second Recourse to Article 21.5 of the DSU. The Foreign Sales
Corporation (FSC) dispute between the United States and the European Communities had dragged on for years within the dispute settlement system without a definitive solution. In broad terms, the original AB report of the dispute declared that certain export subsidies provided by the United States in its US Internal Revenue Code (the FSC measure) were
11 87 prohibited by the SCM Agreement. In order to comply with the recommendations and rulings of the Dispute Settlement Body, the United States, on November 15, 2000, enacted 1 1 88 the "FSC Repeal and Extraterritorial Income Exclusion Act of 2000" (the "ETI
Act")1189. However, Section 5(c)(1) kept available some export subsidies already declared to be WTO-inconsistent. The European Communities therefore started Article 21.5 proceedings1190 aimed at declaring that the ETI Act was not in full compliance with the original adopted panel and Appellate Body reports. Both the Article 21.5 compliance panel and the Appellate Body1191 declared that the ETI Act did not withdraw all the prohibited export subsidies provided for in the Foreign Sales Corporation measure.
See United States—Tax Treatment for "Foreign Sales Corporations". Second Recourse to Article 21.5 of the DSU (2006), WTO Doc. WT/DS108/AB/RW2 (Appellate Body Report), online: WTO
In order to comply again with the original panel and Appellate Body reports, the United
States enacted a second measure, the "American Jobs Creation Act of 2004" (the "Jobs
Act").1193 However, the European Communities were not satisfied with the content of the
Jobs Act, because it had not repealed Section 5(c)(1) of the ETI Act, thereby grandfathering certain prohibited export subsidies provided for in the Foreign Sales Corporation measure1194; therefore, full compliance had not yet been ensured by the United States. The
European Communities requested a second Article 21.5 panel. In their request for establishment of the panel, the European Communities, under the heading "THE SUBJECT
OF THE DISPUTE," identified the Jobs Act as the measure at issue, without explicitly indicating Section 5(c)(1) of the ETI Act as another measure the European Communities were complaining about in these proceedings.1 During the second Article 21.5 proceedings, a debate arose regarding whether the ETI Act made up part of the terms of reference of the panel, because the U.S. argued that it did not.1196 After evaluating the terms of reference as a whole,1197 the panel determined that the ETI Act was within its terms of reference1198 and concluded that "the United States, by enacting Section 101 of the Jobs
Act, maintains prohibited FSC and ETI subsidies through these transitional and grandfathering measures, it continues to fail to implement fully the operative DSB
United States—Tax Treatment for "Foreign Sales Corporations" - Recourse to Article 21.5 of the DSU by the European Communities (2001), WTO Doc. WT/DS108/AB/RW (Appellate Body Report), online: WTO
measures into conformity with its obligations under the relevant covered agreements."1199
The U.S. appealed this finding, arguing that the ETI Act was not within the terms of reference of the second Article 21.5 compliance panel.1200 The AB had no option but to make full argumentation in order to uphold the panel's finding. Otherwise, the AB would have rendered a ruling that would have not contributed to the solution of such a complex
dispute, which has had ramifications in other transatlantic controversies.1201 Strict
application of the jurisprudence regarding terms of reference would have then been
inconvenient.
Indeed, when specifying the requirement that complainant parties must meet when setting
the terms of reference of article 21.5 proceedings, the Appellate Body held:
Hence, in order to identify the "specific measures at issue" and to provide "a brief summary of the legal basis of the complaint" in a panel request under Article 21.5, the complaining party must identify, at a minimum, the following elements in its panel request. ... Secondly, the complaining party must either identify, with sufficient detail, the measures allegedly taken to comply with those recommendations and rulings, as well as any omissions or deficiencies therein, or state that no such measures have been taken by the implementing Member.... 1202
n ' See ibid, at para. 7.87. 1199 See ibid, at para. 7.65. 1200 See US - FSC (Article 21.5-EC II) AB Report, supra note 1186 at para. 12. 1201 According to the Financial Times, quoting lobbysts in the European Union, the European Communities were using this second Article 21.5 AB ruling as a bargaining chip in its aircraft dispute with the United States regarding subsidies allocated to Boeing, another ongoing major trade dispute. Concerning the US reaction to this second Article 21.5 proceedings, the FT wrote: "a spokeswoman for Rob Portman, the US trade representative, said: "Congress has repealed the FSC and the ETI, and prolonging this dispute will not serve to foster harmonious transatlantic relations." Financial Times, "US faces threat of EU trade sanctions," Feb 13, 2006. 1202 us _ FSC (Artic[e 21,5 - EC II) AB Report, supra note 1186 at para. 62 [footnotes omitted, second italics added]. 507
In reality, the European Communities' request for establishment of the panel was not
sufficiently detailed, and the Appellate Body said so when it stated that "[w]e consider that it would have been preferable, and would have better fulfilled the requirements of
Article 6.2 of the DSU, had the European Communities explicitly articulated its challenge to the continued operation of Section 5 of the ETI Act." Despite this lack of sufficient detail, the Appellate Body said that the interpretation of the whole panel request had allowed the United States to be aware of the fact that the European Communities were also referring to the ETI Act in the second Article 21.5 proceedings,1204 and then it upheld the panel finding.
As can be seen, the Appellate Body had to make an effort in order to include the ETI Act within the terms of reference of the second Article 21.5 proceedings of the Foreign Sales
Corporation dispute. The AB asserted a bit more control over the terms of reference set by the European Communities, and by interpreting in a holistic way—the request for
establishment of the panel—the AB made manifest what had not been clearly specified by the complainant and went slightly beyond the terms of reference in order to avoid leaving this dispute unresolved.
IV.2.1.2.2 The Logical Continuum Technique as a Tool to Evade the Strictness of the Terms of Reference
The Appellate Body has stated that the WTO quasi-judiciary can adjudicate disputes on
the basis of a provision of one of the covered agreements that was not mentioned by the
Ibid, at para. 68. Ibid, at paras. 66-67. 508 complaining party as being violated by the given measure if there is a logical continuum between such a provision and the one that is part of the terms of reference. In strict terms, the Appellate Body has allowed itself and panels to free themselves somewhat from the terms of reference when deciding a case on the basis of a provision that was not invoked by the complaining party. For instance, in its report in Canada - Periodicals, me
Appellate Body held.
Canada asserts that the Appellate Body does not have the jurisdiction to examine a claim under Article 111:2, second sentence, as no party has appealed the findings of the Panel on this provision. ... We believe the Appellate Body can, and should, complete the analysis of Article 111:2 of the GATT 1994 in this case by examining the measure with reference to its consistency with the second sentence of Article 111:2, provided that there is a sufficient basis in the Panel Report to allow us to do so. The first and second sentences of Article 111:2 are closely related. The link between the two sentences is apparent from the wording of the second sentence, which begins with the word "moreover". It is also emphasized in Ad Article III, paragraph 2, which provides: "A tax conforming to the requirements of the first sentence of paragraph 2 would be considered to be inconsistent with the provisions of the second sentence only in cases where ...". An examination of the consistency of Part V.l of the Excise Tax Act with Article 111:2, second sentence, is therefore part of a logical continuum.1205
The covered agreements involve complex compromises and are sometimes not models of
precision and clarity as was shown in Part III.3.5.2 of Chapter III, so to establish whether
there is a continuum between two obligations of the same provision might be open to
discussion and gives panels and the AB certain discretion to adjudicate the dispute. For
instance, in its Chile - Price Band System report, the AB ratified this technique by
denying Argentina the possibility to use it in order to support the existence of the claim
under Article II. 1(b), second sentence. In a very short statement, the Appellate Body
Canada - Periodicals AB Report, supra note 929 at 25. 509 simply declared that Article 11.1(b), first and second sentences, contained two different obligations and were therefore not part of a logical continuum.1206
The technique of the continuum can be a useful tool to assert more control over the terms of reference in disputes in which such a tool is required for their satisfactory resolution. In practical terms, the AB or panels—in exceptional circumstances— have a certain degree of discretion to determine whether the subject matter of the given dispute or controversy is so important that the tool must be used in order to adopt a decision on the basis of a provision that was not expressly mentioned by the complaining party or that, as was the case in Canada - Periodicals, did not constitute part of the appeal.1 7 Undeniably, we cannot envisage frequent use of such a tool.
As can be seen, the "holistic interpretation of request for establishment of panels," and the
"logical continuum" are two exceptional tools that allow the WTO quasi-judiciary to gain more control over specific disputes by permitting it to go slightly beyond the terms of reference set by complaining Members in order to properly adjudicate the respective dispute in limited circumstances. Widespread use of these tools obviously cannot be expected, as has been noted.
See Chile - Price Band System AB Report, supra note 810 at para. 168, n. 150. Therefore, the logical continuum technique is not the product of early litigation before the Appellate Body, which one should assume no longer exists. In fact, what the AB did in its Chile - Price Band System report was to keep the availability of the technique and refuse to apply it in the extant case. 1207 It is important to recall that claims regarding Article III.2, second sentence, were made by the United States during panel proceedings, and thus this provision was within the panel's terms of reference. See, Canada—Certain Measures Concerning Periodicals (1997), WTO Doc. WT/DS31/R at Part III.B (Panel Report), online: WTO
Having said that, this thesis proceeds to present the possibility of a third exception that the
AB could recognize, whose final result would be a better adjudication of trade controversies in which developing and least-developed country Members act as complainants against developed country respondents. This transformation would have a double effect: first it would enhance control by panels and Appellate Body over disputes of this character and it would also favour the position of developing and least developed country Members within the WTO dispute settlement system without affecting its neutrality.
IV.2.1.3 How the Appellate Body Could Allow Panels to Exceptionally Go Beyond the Terms of Reference to Favour Developing or Least Developed Country Complainants1208
IV.2.1.3.1 The Requirements of the Transformation Establishing a New Exception to the Jurisprudence of Terms of Reference for the Benefit of Developing Country or Least Developed Country Complaining Members
Despite the above-mentioned jurisprudence regarding terms of reference and the prohibition on panels ruling on claims not included therein, the question that the AB has not yet directly addressed is whether a panel can rule on a claim not included by the developing country complaining Member in the terms of reference of a dispute, but which is identified by a third party and taken up later by the complainant. If the Appellate Body allowed panels to rule on a claim introduced in this fashion, the WTO quasi-judiciary would gain additional control over the initial terms of reference by deciding the case on
1208 ^js sectjon deais with the extension of panels' control over the terms of reference for the benefit of developing and less developed country complainant Members and leaves open the question of whether this analysis can be extended to disputes involving any type of complaining party. 511 the basis of timely introduced new claims, which would allow panels to better adjudicate the dispute from the factual and/or legal perspectives.1209
The AB could introduce this transformation for the benefit of developing country complainants on the basis of its dictum in Chile - Price Band System. There the AB stated that "[i]t was for Argentina, as the claimant, to make its claim; Argentina cannot rely on third parties to do so on its behalf. Moreover, we note that Argentina did not adopt these arguments of the third parties in subsequent proceedings." Thus, the Appellate Body could declare that the first condition for a panel to rule on a claim that is not part of the terms of reference is that the developing country complainant takes up later in the proceedings the claims identified first by a third party in its submission.1211 Such
Interesting is the fact that control over the terms of reference is not a zero sum game. The transformation suggested here grants the WTO judiciary more control over the dispute in the sense that it offers the opportunity to rule on claims not included therein without impairing the power of developing country complainants to frame their disputes, because panels can rule on these claims only if they are adopted by these complainants later in panel proceedings. The exception also gives third parties the possibility of improving the framework of the dispute, although this is conditional upon developing country complainants' adoption of the new claims identified by such third parties. 1210 Chile - Price Band System AB Report, supra note 810 at para. 163, n. 11 [Footnotes omitted, italics added]. This dictum has gone completely unnoticed in evaluations of the scope of jurisdiction of WTO panels. 211 It is important to highlight the difference between identifying a new claim, something that can be made by a third party, as the European Communities did in Chile - Price Band System, and making a claim, an action that can only be made by complaining parties exclusively, as the AB explicitly held in the aforementioned report. Claims can be made when setting the terms of reference, or later in panel proceedings, according to the dictum of the AB in such report. For a detailed analysis of the extent of the possibility of adding new claims, see this Part below. Additionally, it is worth mentioning that any admission of new claims by developing country complaining Members in the context of the WTO could follow the restriction imposed by the International Court of Justice in the sense that complainants can add new claims but on the condition that such new claims do not change the nature of the dispute as set forth initially. The ICJ pointed out in its judgment in Fisheries Jurisdiction Case (Spain v. Canada). "Paragraph 1 of Article 40 of the Statute of the Court requires moreover that the "subject of the dispute" be indicated in the Application; and, for its part, paragraph 2 of Article 38 of the Rules of Court requires 'the precise nature of the claim' to be specified in the Application. In a number of instances in the past the Court has had occasion to refer to these provisions. It has characterized them as 'essential from the point of view of legal security and the good administration of justice' and, on this basis, has held inadmissible new claims, formulated during the course of proceedings, which, if they had been entertained, would have transformed the 512 requirement would also prevent panels and the Appellate Body from ruling on a claim that the developing country complaining Member did not miss but that consciously omitted to make for strategic reasons.1212
The second condition that the Appellate Body would require for the operation of the transformation suggested here would be for panels to ensure developed country respondents' due process right, as inferred from the Appellate Body report in Chile -
Price Band System. Therefore, if the developing country complaining party later adopted the claim, and the developed country respondent had in fact controverted it in terms of facts and law, so long as the latter's due process was properly ensured, the Appellate
Body would uphold the given panel's evaluation and decision regarding this claim, despite its not constituting part of the terms of reference of the dispute.
In effect granting the developed country Member respondent's due process ensures that it suffers no prejudice as a result of the developing country complainant's addition of a new claim first identified by a third party. The absence of prejudice may well shield the panel's
subject of the dispute originally brought before it under the terms of the Application (Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I.C.J. Reports 1992, pp. 266-267; see also Prince von Pless Administration, Order of 4 February 1933, P.C.I.J., Series A/B, No. 52, p. 14 and Societe Commerciale de Belgique, Judgment, 1939, P.C.I. J., Series A/B, No. 78, p. 173)". Fisheries Jurisdiction Case (Spain v. Canada). Judgment of 4 December 1998. at para. 29 International Court of Justice
Offset Act of 2000. There the Appellate Body held:
[T]he DSU and in particular its Appendix 3, leave panels a margin of discretion to deal, always in accordance with due process, with specific situations that may arise in a particular case and that are not explicitly regulated. Within this context, an appellant requesting the Appellate Body to reverse a panel's ruling on matters of procedure must demonstrate the prejudice generated by such legal ruling.1214
Ensuring due process - that is giving the developed country respondent of the case enough opportunity to controvert the new claim in terms of facts and law - would allow the AB to also defuse any criticism as to the quasi-judiciary's partiality when applying the transformation. Indeed, developed Member respondents would have had all the opportunities to rebut those new claims, and the given panel and the AB would decide strictly on the basis of the factual record produced and on the claims effectively made during the entire dispute settlement proceedings. Put differently, ensuring due process
1214 US - Offset Act (Byrd Amendment) AB Report, supra note 813 at para. 315, quoting EC - Hormones AB Report, supra note 132 at para. 152, n. 138. Although, jurisdictional issues may be considered as substantive, a panel's decision to rule on a claim subsequently adopted by a developing country complaining Member, after the panel has taken positive steps to grant the developed country respondent Member its due process 514 prevents the transformation from generating any bias against developed country Members within the WTO dispute settlement system.
IV.2.1.3.2. Past GATT Practice Supporting The Transformation
As extraordinary as this exception may look when contrasted with the well-established jurisprudence regarding terms of reference, the fact is that the transformation contained in this exception is far from being a leap into the unknown. In effect, the AB could hold that there is a strong similarity between a WTO panel applying the suggested transformation
and what the GATT panel did in its report in Japan—Trade in Semiconductors.
In effect, after the European Communities set the terms of reference of this dispute,
Canada, as a third party, identified a new claim and argued that the measures the European
Communities were complaining about also violated Article I and XVII: 1(c) of the
GATT.1216 Subsequently, the European Communities stated in a letter sent to the panel
that "it agreed with the views advanced by Canada and request the panel to take these into
rights, can also be seen as falling under the panel's discretion to adopt procedural determinations that do not contravene the DSU. ins GATT Panel Rep0rt5 Japan—Trade in Semiconductors (1985) GATT Doc. L/6309. 33th Supp.. B.I.S.D. (1989). It might be noted that these findings generally support the possibility of complainants of any type adding new claims first identified by third parties and of panels to rule on them, an issue I am not dealing with here, as mentioned above. However, such precedent also buttresses my more limited point that panels can adjudicate the new claim when it is a developing or least-developed country complaining Member that has added the new claim and the panel has properly ensured the developed country respondent Member's due process right. 1216 See ibid, at para. 32. 515 consideration."1217 The panel included the new claim taken up by the European
Communities within its terms of reference,1218 although, given that it found the Japanese measures to be inconsistent with other GATT provisions, it did not examine their conformity with Article XVII: 1(c).1219
As can be seen from this GATT experience, the AB could state that what WTO panels could do today for the benefit of developing country members is what the Semi conductors GATT panel did in the past: be able to decide on a claim identified by a third party, later adopted by a complainant.
IV.2.1.3.3 Additional Indirect Support for the Transformation: Appellate Body Case-Law Regarding Late Invocation of Defences by Respondent Members
The AB could well declare that the transformation allowing for an exception to the jurisprudence regarding terms of reference and its requirements have not only direct support its dictum in Chile - Price Band System and in the GATT Japan - Semi conductors report, but also indirect support in the findings and conclusions of the
Appellate Body report in US - Gambling. There, the AB responded to the claim made by
Antigua that the panel had erred by assessing a defence argued by the United States only in its second submission to the panel, which in the view of Antigua had prejudiced it, because it had not had enough time to respond to it. The AB set forth that to ensure
See ibid, at paras. 32,58. See ibid, at para. 96. See ibid, at para. 123. 516 complaining parties' due process under this situation was the relevant element for the panel under these circumstances and held in the following passages:
[T]he Appellate Body has observed that, under the standard working procedures of panels, complaining parties should put forward their cases—with 'a full presentation of the facts on the basis of submission of supporting evidence'— during the first stage of panel proceedings. We see no reason why this expectation would not apply equally to responding parties, which, once they have received the first written submission of a complaining party, are likely to be aware of the defences they might invoke and the evidence needed to support them. It follows that the principles of good faith and due process oblige a responding party to articulate its defence promptly and clearly. This will enable the complaining party to understand that a specific defence has been made, 'be aware of its dimensions, and have an adequate opportunity to address and respond to it' ... Furthermore, as part of their duties, under Article 11 of the DSU, to 'make an objective assessment of the matter' before them, panels must ensure that the due process rights of parties to a dispute are respected. A panel may act inconsistently with this duty if it addresses a defence that a responding party raised at such a late stage of the panel proceedings that the complaining party had no meaningful opportunity to respond to it. To this end, panels are endowed with 'sufficient flexibility' in their working procedures, by virtue of Article 12.2 of the DSU, to regulate panel proceedings and, in particular, to adjust their timetables to allow for additional time to respond or for additional submissions where necessary.1220
Going to the facts of the dispute, and in particular whether the panel had offered sufficient opportunity to Antigua to respond to the defence, the Appellate Body held:
In the present case, the United States made no mention of Article XIV of the GATS until its second written submission, filed on 9 January 2004. Antigua did not refer to Article XIV in its second written submission, filed on the same day, although Antigua had, in its first written submission, referred to the possibility that the United States might seek to invoke Article XIV. ... At the hearing in this appeal, Antigua acknowledged that it 'had the opportunity to respond' to the United States' defence, and had "responded sufficiently", during its opening statement at the second substantive panel meeting. When asked whether it had informed the Panel of any prejudice resulting from the
U.S. - Gambling AB Report, supra note 871 at paras. 271-73. 517
United States' allegedly late invocation of the defence, Antigua answered that it had not so informed the Panel. ... In these circumstances, we are of the view that, although the United States could have raised its defence earlier, the Panel did not err in deciding to assess whether the United States' measures are justified under Article XIV. ... Wcfind, therefore, that the Panel did not fail to satisfy its obligations under Article 11 of the DSU by 1991 entering into the merits of the United States' defence under Article XIV.
As can be seen, regarding defences later invoked in panel proceedings by respondents, the key issue for a panel to ensure a lawful assessment of such defence is to offer complainants the due process opportunity to respond to it. The AB could declare that this is the other side of the situation of the evaluation by panels of claims that are not part of the terms of reference, that are identified initially by third parties, and that are subsequently taken up by developing country complaining Members. The key issue to assess these claims is to ensure developed country respondents their due process right to respond in terms of facts and law.
IV.2.1.3.4 The Application of the Transformation and the WTO Judiciary's Duty to Make an Objective Evaluation of the Matter
As is known, one of the most important duties the WTO quasi-judiciary has to fulfil is contemplated in Article 11 of the DSU, according to which panels and the AB must carry out an objective evaluation of the matter before them. This duty was one of the bases on which the Appellate Body grounded the WTO quasi-judiciary's freedom to develop its
Ibid, at paras. 274-76. 518
1 999 own argumentation, and certainly it could argue such provision as an additional ground of the transformation suggested here. To recall, this rule provides as follows: The function of panels is to assist the DSB in discharging its responsibilities under this Understanding and the covered agreements. Accordingly, a panel should make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements, and make such other findings as will assist the DSB in making the recommendations or in giving the rulings provided for in the covered 1223 agreements ...
Indeed, once a developed country respondent's due process is ensured, meaning that it has had the opportunity to respond to the new claim identified by a third party and later taken up by the complaining party both in terms of facts and law, the AB could point out that panel should take into account this claim if it is to fulfil its duty to make an objective assessment of the matter before it. In effect, this is the way to ensure that the dispute will be resolved taking fully into account the facts of the case and the applicability of and conformity with the relevant covered agreements of the developed country respondent's
1224 measures in question.
1222 See supra text accompanying note 964. 1223 WTO Legal Texts, supra note 4 at 362. For a recent application by the AB of Article 11, see United States — Investigation of the International Trade Commission in Softwood Lumber from Canada. Recourse to Article 21.5 of the DSU by Canada (1996), WTO Doc. WT7DS277/AB/R (Appellate Body Report), online: WTO
IV.2.1.3.5. Until When Could Complainants Add New Claims in Panel Proceedings?1225
The need to ensure respondents' due process necessitates that the AB set a time limit to the possibility of developing country complainants adding new claims, first raised by third parties, within WTO panel proceedings. In order to do so, it is relevant to find out at what stage of the proceedings third parties could identify new claims, at what stages these complainants could adopt them, and until when this adoption could be made, so as to afford developed country respondents the possibility to rebut such new claims both in terms of arguments and evidence.
According to the standard terms of reference of the panels' Working Procedures, third parties receive the complainant's and respondent's submissions before the first substantive meeting of the panel with the parties. It is during this first meeting that third parties present their views and respond to questions by panels, so this is their occasion to identify new claims not included by developing country complainant Members in the terms of reference. Thus, it is after the end of the first substantive meeting that complaining parties would be in a position to adopt a new claim first identified by a third party. In consequence, the AB could determine that complainants could add new claims mentioned by third parties either in the first written rebuttals or before the second substantive meeting of the panel with the parties.
For a complete account of panel proceedings, visit http://www.wto.org/English/tratop_e/dispu_e/disp_settlement_cbt_e/c6s3p3_e.htm I
520
If such a situation arose, respondents would have the opportunity to respond to these
claims at the second substantive meeting, and panels would have the occasion to ask
questions to both complainants and respondents in this regard, thereby also ensuring the
latter's due process right. Any claim added after the second substantive meeting, for
instance, before the interim report, would not allow the given respondent opportunity to
controvert this claim; hence, its due process right could not be ensured in the proceedings,
and the panel would not be in a legal position to rule on this claim without violating
Article 11 of the DSU.
IV.2.1.3.6. Why Should the Transformation Favour Developing or Least Developed Members Acting as Complainants Against Developed Respondents?1227
This would be consistent with the limits to the submission of new evidence within panel proceedings, which can be furnished before the second substantive meeting with the parties, in principle. See Argentina - Textiles and Apparel AB Report, supra note 965 at paras. 79, 81. 1227 I am mindful that the transformation suggested would apparently be covered by the finding made by panel in United States—Continued Dumping and Subsidy Offset Act of 2000. (United States—Continued Dumping and Subsidy Offset Act of 2000 (2002), WTO Doc. WT/DS217/R, WT/DS234/R Panel Report, online: WTO
The remaining issue is the explanation of the legal bases justifying why the transformation should be applied in disputes in which developing or least developed country Members act as complainants and developed country Members as defendants.1228 The DSU and the preamble of the WTO Agreement provide sufficient bases for permitting the exception in disputes involving these types of parties.
Indeed, the DSU contemplates different provisions favouring developing and least developed countries within dispute settlement proceedings without putting at risk the impartiality of the system. For instance, Article 12.11 establishes, as has already been mentioned, that "where one or more of the parties is a developing country Member, the panel's report shall explicitly indicate the form in which account has been taken of relevant provisions on differential and more favourable treatment for developing country
Members that form part of the covered agreements which have been raised by the developing country Member in the course of the dispute settlement procedures." On the other hand, Articles 21.6 and 21.8 of the DSU (Surveillance of Implementation of
Recommendations and Rulings) provide:
Article.21. developing country Members' allegations regarding those provisions of the covered agreements that explicitly favour them. The norm does not explicitly authorize panels to go beyond the terms of reference, because nowhere in the text of Article 12.11 is it suggested that it is an exception to Article 6.2 of the DSU. However, given the respondents' due process concern repeatedly expressed by the Appellate Body, which the panel did not refer to, it would be unlikely that the Appellate Body would assign such a broad scope to Article 12.11. This is why the analysis contained here, which does take into account respondents' due process right, may rest on solid grounds in allowing panels to adjudicate claims that were not part of the terms of reference, but that were identified first by third parties, and subsequently taken up by developing country complaining Members. 1228 -j^is without suggesting that the transformation should be deployed in all disputes of this character, but only that the panels should have discretion to do so in particularly critical cases. 522
6. If the matter is one which has been raised by a developing country Member, the DSB shall consider further action it might take which would be appropriate to the circumstances. 8. If the case is one brought by a developing country Member, in considering what appropriate action might be taken, the DSB shall take into account not only the trade coverage of measures complained of, but also their impact on the economy of developing country Members concerned.
The transformation advocated here allowing for an exception to the jurisprudence of the terms of reference would then be another expression of the drafters' explicit intention of favouring developing and least developed countries within dispute settlement proceedings, without impairing the impartiality of the system. However, it could also find solid grounds on the declared object set out in the preamble of the WTO Agreement, recognizing that
"there is a need for positive efforts designed to ensure that developing countries, and specially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development." 1231
Another DSU provision favouring developing countries is Article 27.2, which sets forth that "while the Secretariat assists Members in respect of dispute settlement at their request, there may also be a need to provide additional legal service and assistance in respect of dispute settlement to developing country Members. To this end, the Secretariat shall make available a qualified legal expert from the WTO technical cooperation services to any developing country Member which so request. This expert shall assist the developing country Member in a manner ensuring the continued impartiality of the Secretariat." WTO Legal Texts, supra note 4 at 375. 1230 It should be recalled that the AB stated in US - Shrimp that the Preamble adds texture and colour to the interpretation of the covered agreements. The AB pointed out: [A]s this preambular language reflects the intentions of negotiators of the WTO Agreement, we believe it must add colour, texture and shading to our interpretation of the agreements annexed to the WTO Agreement,... US - Shrimp AB Report, supra note 98 at para. 153. 1231 Despite the fact that litigation by developing country Members has become more frequent since the inception of the WTO, these provisions have seldom been invoked by the very same countries that sought their inclusion, and the fact is that these precepts await a more detailed development. Perhaps, one of the possible explanations for these situations is the weakness of the provisions in favour of developing country members. See regarding such weakness, Henrik Horn & Petros Mavroidis, "Remedies in the WTO Dispute Settlement System and Developing Country Interests" World Bank. Apr. 1999 at 30. (available at http://www 1 .worldbank.org/wbiep/trade/papers 2000/BPdisput.PDF). This could be a good opportunity to stretch the impact of these provisions and to deduce from them more meaningful contents. 523
Thus, the Appellate Body could, without difficulty, state that the transformation suggested in this thesis establishing a new exception to the strictness of the terms of reference belongs to the type of positive efforts that the world trade system has to make in favour of developing or least developed country Members, because the direct consequence of the application of the exception is to enhance their share in growth of international trade.
Indeed, if the WTO judiciary declares WTO-inconsistent a developed Member's measure affecting the trade of the complaining developing country on the basis of a claim not made by it in the terms of reference, but identified by a third party and later adopted by the developing country complainant Member, the likely removal of this measure as a result of the adverse ruling will increase the exports of this Member and consequently its share in the growth of international trade.
IV.3 Conclusions of the Chapter
This Chapter has illustrated that there are other possible transformations to the WTO dispute settlement system that could be introduced by the Appellate Body. The first is the recognition of judicial review of MC or GC Interpretations as an institutional feature of the system. The Appellate Body could declare that the two requirements for the existence of judicial review would be met by the WTO. First, Article IX.2 of the WTO Agreement establishes procedural and substantive requirements on the interpretative powers of the
MC and the GC, and consequently it makes the existence of ultra vires Interpretations possible, as a matter of WTO law. And second, there could be a number of legal
1232 JJ^ preambuiar language of the WTO Agreement favouring developing countries played an important 524 arguments and existing jurisprudence that could be invoked by the Appellate Body to ground the DSB's jurisdiction—and in particular that of a panel and the AB—to assess the conformity of Interpretations with Article IX.2. These arguments would mainly be, first, that Members' access to the DSB exists whenever they deem that their rights have been impaired, which would be the consequence of the illegal adoption of the Interpretation at issue, from a particular Member's perspective. Second, because panels and Appellate
Body's jurisdiction in this situation is not explicitly excluded by the DSU.
The second transformation suggested in this Chapter is aimed at enhancing the position of developing country Members within WTO dispute settlement proceedings, without affecting the impartiality of the dispute resolution system. Indeed, it is possible to say that on the basis of early attempts to attenuate the strictness of the jurisprudence of terms of reference, the AB could introduce a transformation to the WTO dispute settlement system by which panels and the Appellate Body could assume more control over disputes in which developing and least developed countries are complainants against developed ones
in order to rule on claims not included in the terms of reference originally established.
Two conditions should be met to ensure a lawful adjudication of such a claim by a panel: first, the developing country complaining Member should adopt the claim identified by a third party later in panel proceedings; and second, the panel should ensure the developed
country respondent sufficient opportunity to respond in facts and law to such new claim.
The AB could declare that this transformation is directly supported by a dictum in its
report in Chile - Price Band System and by past GATT practice, and indirectly by the AB
role in the Appellate Body report in EC - Tariff Preferences. See EC - Tariff Preferences AB Report, supra note 967 at paras. 92, 161, 168, 169. 525
findings and conclusions regarding late invocation of defences in panel proceedings. This
thesis holds that this transformation may constitute an additional expression of the
different provisions of the DSU aimed at favouring the former members within dispute
settlement proceedings, also furthers important objectives of the WTO Agreement and has the advantage of not impairing the impartiality of the system. 526
CHAPTER V
CONCLUSIONS
The WTO Appellate Body (AB) observed in its report in United States—Import Measures
on Certain Products from the European Communities that "[i]t is certainly not the task of
either panels or the Appellate Body to amend the DSU .... Only WTO Members have the
authority to amend [it]..." Such a statement seen by an outsider would be understood to
indicate that the AB cannot introduce changes to the WTO dispute settlement system because, as it stressed, it is unable to do so. This thesis has shown that this statement may not be totally true and that the AB has the autonomy—albeit not unlimited—to introduce
important changes to the structure of the WTO dispute settlement system, as defined in the
DSU.
Drawing on Luhmann's theory of social systems complemented by the collegial game
theory of judicial decision-making and the public choice theory of law and economics, the
thesis has illustrated how the AB has this autonomy, not as an isolated event, but as a
permanent feature of its functioning. This is so because the AB operates in ways similar to
autonomous systems, as defined by Luhmann, and most importantly, because it can take
decisions about itself and the WTO dispute settlement system. It always has a set of
reasonable alternatives to choose from when faced with cases in which a self-
transformation is at issue, and it is the AB alone, after observing its external environment
constituted mainly by WTO membership, which decides, through the operation of its
decision-making process, the timing, scope, and extent of self-transformations. 527
The thesis has shown that the predictions based on the theoretical structure supporting such autonomy have been confirmed by the daily operation of the AB. In other words, such autonomy is not a theoretical concept but a reality, and the AB has indeed exerted it by transforming itself and the WTO dispute settlement system. The AB has given itself and panels a significant degree of control over disputes, taking this control away from parties; it has expanded to a certain extent, although not significantly, the jurisdiction of the system and has created new phases within it.
The thesis has also shown that the AB faces important internal and external constraints in the exercise of its self-transformative autonomy and that it cannot be posited that the AB can introduce at will alterations to the WTO dispute settlement body. It has equally demonstrated how these constraints have operated to limit transformations, such as, in particular, preventing the AB from making effective use of amicus curiae briefs. Finally, this thesis has also revealed how the AB's self-transformative process is dynamic and how there are completed self-transformations; transformations that are ongoing, either in their final or initial stages; and transformation that the AB refused to carry out.
Are these conclusions shocking? Barely. Although, the existence of this self- transformative autonomy seems unthinkable to some, any fear of misuse easily disappears once a hard look is made at the record of the exercise of its self-transformative autonomy by the AB and the limitations to which it is subject. An evaluation of how it has exerted 528 such autonomy reveals that the AB is a far way from having altered the structure of the
WTO dispute settlement system.
However, this is not to say, as could be argued, that what the AB has done regarding self- transformations has been merely to do what all domestic courts usually do: control their own process, be the masters of their own house. Domestic courts have a tradition of centuries within national systems, and their place there is not contested. They can easily claim that they have the inherent right to manage their own house. However, this is not the case with multilateral judicial institutions such as the AB. Control over disputes, to mention an example, has been expected to be in the hands of the States party to disputes, and this was the case during the GATT era. It is remarkable that the AB has made inroads into such control despite the fact that it lacks the tradition and secure place of its national peers. In other words, while a domestic court asserting control over its controversies may be seen as the normal exercise of its well-established prerogatives, the same assertion by the AB can be considered as exceptional and as a self-transformation, since such control was expected to rest mostly with States, not with the former.
Is the AB unique as an institution with self-transformative autonomy? This research has demonstrated that the answer to this question is no, first, by providing a theoretical framework that allows us to determine whether other courts of last resort possess such autonomy; and second, by illustrating how two of the most respected judicial institutions in the world, the ICJ and the U.S. Supreme Court, operate as autonomous systems, enjoy 529 such self-transformative autonomy, have exerted it, and have also faced important internal and external constraints when doing so.
This thesis has provided preliminary insight regarding the value of a comparative analysis to improve our understanding of the operation of the AB, but it is clear that further research is required in this particular domain.
Finally, the thesis has called attention to the potential that the use Luhmann's theory of social systems has to understand the operation of courts and, ultimately, the AB. This thesis focused on self-transformative autonomy. However, Luhmann's theory is vast and offers wide perspectives regarding, for instance, the AB's communications with its external environment and with WTO panels. Further research in these areas is worth pursuing.
In sum, this thesis has attempted to look at the AB in a different way by adopting a novel approach of analysis based on important sociological, political science, legal, and economic theories. The conclusions, based on how the AB has effectively functioned, may be disturbing to some actors and diplomats in Geneva, even though this thesis has not suggested that the AB should be activist in the use of its autonomy. But this is an academic endeavour, and the role of the academy is precisely to try to better understand the functioning of the AB, given the paramount importance that this institution has in the contemporary world. 530 531
BIBLIOGRAPHY
WTO JURISPRUDENCE
APPELLATE BODY REPORTS
Argentina—Measures Affecting Imports of Footwear, Textiles, Apparel and Other Items (1998), WTO Doc. WT/DS56/AB/R (Appellate Body Report), online: WTO
Argentina—Safeguard Measures on Imports of Footwear (1999), WTO Doc. WT/DS121/AB/R (Appellate Body Report), online: WTO
Australia—Measures Affecting Importation of Salmon (1998), WTO Doc. WT/DS18/AB/R (Appellate Body Report), online: WTO
Brazil—Export Financing Programme for Aircraft. Recourse by Canada to Article 21.5 of the DSU (2000), WTO Doc. WT/DS46/AB/RW (Appellate Body Report), online: WTO
Brazil—Measures Affecting Dessicated Coconut (1997), WTO Doc. WT/DS22/AB/R (Appellate Body Report), online: WTO
Brazil—Measures Affecting Imports of Retreaded Tyres (2007), WTO Doc. WT/DS332/AB/R (Appellate Body Report), online: WTO
Canada—Measures Affecting the Export of Civilian Aircraft (1999), WTO Doc. WT/DS70/AB/R (Appellate Body Report), online: WTO
Canada—Certain Measures Concerning Periodicals (1997), WTO Doc. WT/DS31/AB/R (Appellate Body Report), online: WTO
Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (2002), WTO Doc. WT/DS207/AB/R (WTO Appellate Body Report), online: WTO
Chile—Taxes on Alcoholic Beverages (1999), WTO Doc. WT/DS87/AB/R (Appellate Body Report), online: WTO
European Communities—Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India - Recourse to Article 21.5 of the DSU by India (2002), WTO Doc. 532
WT/DS141/AB/R (Appellate Body Report), online: WTO
European Communities—Measures Affecting Asbestos and Asbestos-Containing Products (2000), WTO Doc. WT/DS 13 5/9 (Communication from the Appellate Body), online: WTO
European Communities—Measures Affecting the Importation of Certain Poultry Products (1998), WTO Doc. WT/DS69/AB/R (Appellate Body Report), online: WTO
European Communities—Measures Concerning Meat and Meat Products (Hormones) (1997), WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (Appellate Body Report), online: WTO
European Communities—Regime for the Importation, Sale and Distribution of Bananas (1997), WTO Doc. WT/DS27/AB/R (Appellate Body Report), online: WTO
European Communities—Regime for the Importation, Sale and Distribution of Bananas. Recourse to Arbitration by the European Communities under Article 22.6 of the DSU (1999), WTO Doc. WT/DS27/ARB/ECU (Decision by the Arbitrators), online: WTO
European Communities—Selected Customs Matters (2006), WTO Doc. WT/DS315/AB/R (Appellate Body Report), online: WTO
European Communities—Trade Descriptions of Sardines (2002), WTO Doc. WT/DS231/AB/R online: WTO
India—Patent Protection for Pharmaceutical and Agricultural Chemical Products (1998), WTO Doc. WT/DS50/AB/R (Appellate Body Report), online: WTO http://docsonline.wto.org/gen search/asp.
Japan—Taxes on Alcoholic Beverages (1996), WTO Doc. WT/DS8/AB/R (WTO Appellate Body Report), online: WTO
Korea—Definite Safeguard Measure on Imports of Certain Dairy Products (2000), WTO Doc. WT/DS98/AB/R (Appellate Body Report), online: WTO
Korea—Measures Affecting Imports of Fresh, Chilled and Frozen Beef (2001), WTO Doc. WT/DS161/AB/R (Appellate Body Report), online: WTO
Mexico—Anti-Dumping Duties on Steel Pipes and Tubes from Guatemala (2007), WTO Doc. WT/DS331/P/R (Panel Report), online: WTO
Mexico—Antidumping Investigation of High Fructose Corn Syrup (HFCS) from the United States - Recourse to Article 21.5 of the DSU by the United States (2001), WTO Doc. WT/DS132/AB/RW (Appellate Body Report), online: WTO
Turkey—Restrictions on Imports of Textile and Clothing Products (1999), WTO Doc. WT/DS34/AB/R (Appellate Body Report), online: WTO
United States—Anti-Dumping Act of 1916 (2000), WTO Doc. WT/DS136/AB/R, WT/DS162/AB/R (Appellate Body Report), online: WTO
United States—Continued Dumping and Subsidy Offset Act of 2000 (2003), WTO Doc. WT/DS217/AB/R, WT/DS234/AB/R (Appellate Body Report), online: WTO
United States—Countervailing Duties on Certain Corrosion-Resistant Carbon Steel Flat Products from Germany (2002), WT/DS213/AB/R (Appellate Body Report), online: WTO
United States—Definitive Safeguard Measures on Imports of Certain Steel Products (2003), WTO Doc WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS258/AB/R, WT/DS259/AB/R (Appellate Body Report), online: WTO
United States—Definitive Safeguard Measures on Imports of Wheat Gluten from the European Communities (2000), WTO Doc. WT/DS166/AB/R (Appellate Body Report), online: WTO
United States—Import Measures on Certain Products from the European Communities (2000). WTO Doc. WT/DS165/AB/R (Appellate Body Report), online: WTO
United States—Import Prohibition of Certain Shrimp and Shrimp Products (1998), Doc. WT/DS58/AB/R (Appellate Body Report), online: WTO
United States—Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 of the DSU by Malasia (2001), WTO Doc. WT/DS58/AB/RW (Appellate Body Report), online: WTO
United States—Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon Steel Products Originating in the United Kingdom (2000), WTO Doc. WTO/DS138/AB/R (Appellate Body Report), online: WTO
United States - Investigation of the International Trade Commission in Softwood Lumber from Canada. Recourse to Article 21.5 of the DSU by Canada (1996), WTO Doc. WT/DS277/AB/R (Appellate Body Report), online: WTO
United States—Measures Affecting the Cross-Border Supply of Gambling and Betting Services (2005), WTO Doc. WT/DS285/AB/R (Appellate Body Report), online: WTO
United States—Measures Affecting Imports ofWoven-Wool Shirts and Blouses from India (1997), WTO Doc. WT/
United States—Standards for Reformulated and Conventional Gasoline (1996), WTO Doc. WT/DS2/AB/R (Appellate Body Report), online: WTO
United States—Subsidies on Upland Cotton (2004), WTO Doc. WT/DS267/AB/R (Appellate Body Report), online: WTO
United States—Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina. Recourse to Article 21.5 of the DSU by Argentina (2007), WTO Doc. WT/DS268/AB/RW (Appellate Body Report), online: WTO
United States—Tax Treatment for "Foreign Sales Corporations", WTO Doc. WT/DS108/AB/R (1999) (Appellate Body Report), online: WTO
United States—Tax Treatment for "Foreign Sales Corporations" - Recourse to Article 21.5 of the DSU by the European Communities (2001), WTO Doc. WT/DS108/AB/RW (Appellate Body Report), online: WTO
United States—Tax Treatment for "Foreign Sales Corporations". Second Recourse to Article 21.5 of the DSU (2006), WTO Doc. WT/DS108/AB/RW2 (Appellate Body Report), online: WTO
WTO PANEL REPORTS
Australia—Subsidies Provided to Producers and Exporters of Automotive Leather - Recourse to Article 21.5 of the DSU by the United States (2000), WTO Doc. WT/DS126/RW (Panel Report), online: WTO
Canada—Certain Measures Concerning Periodicals (1997), WTO Doc. WT/DS31/R (Panel Report), online: WTO
Chile—Price Band System and Safeguard Measures Relating to Certain Agricultural Products (2002), WTO Doc. WT/DS207/R (Panel Report), online: WTO
European Communities—Measures Affecting the Approval and Marketing of Biotech Products (2006), WTO Doc WT/DS291, 292, 293/R (Panel Report), online: WTO
India—Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (1999), WTO Doc. WT/DS90/R (Panel Report), online: WTO
Mexico—Measures Affecting Telecommunications Services (2004), WTO Doc. WT/DS284/R (Panel Report), online: WTO
{United States—Continued Dumping and Subsidy Offset Act of 2000 (2002), WTO Doc. WT/DS217/R, WT/DS234/R Panel Report, online: WTO
United States—Import Prohibition of Certain Shrimp and Shrimp Products (1998), WTO Doc. WT/DS58/R (Panel Report), online: WTO
United States—Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 by Malaysia (2001), WTO Doc. WT/DS58/RW (Panel Report), online: WTO
United States—Tax Treatment for "Foreign Sales Corporations" - Recourse to Article 21.5 of the DSU by the European Communities (2001), WTO Doc. WT/DS108/RW (Panel Report), online: WTO
United States—Tax Treatment for "Foreign Sales Corporations" - Second Recourse to Article 21.5 of the DSU by the European Communities (2005), WTO Doc. WT/DS108/RW2 (Panel Report), online: WTO
GATT PANEL REPORTS
Uruguayan Recourse to Article XXIII (1962), 34th Supp. B.I.S.D. 95.
U.S. Manufacturing Clause (1984) 31th Supp. B.I.D.S. (1985) 74.
United States—Restriction on Imports of Tuna (1992), GATT Doc. DS21/R, at 199 39th Supp. B.I.S.D (1992) 155.
INTERNATIONAL COURT OF JUSTICE
JUDGMENTS
Case Concerning Ahmadou Sadio Diallo. (Republic of Guinea v. Democratic Republic of the Congo, Preliminary Objections of 24 May 2007, online: International Court of Justice
Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002), Decision on Jurisdiction of the Court and Admissibility of the Application of 3 February 2006, online: International Court of Justice
Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), [2002] I.C.J. Rep. 3.
Case Concerning Avena and Other Mexican Nationals (Mexico v. United States of America), Judgment of 31 March 2004, online: International Court of Justice
Case Concerning the Continental Shelf (Tunisia/Libyan Jamahiriya), Judgment of 24 February 1982, [1982] I.C.J. Rep. 18.
Case Concerning Elettronica Sicula S.P.A. (ELSI) (United States of America v. Italy), [1989] I.C.J. Rep. 15.
Case Concerning the Northern Cameroons (Cameroon v. United Kingdom), Preliminary Objections, [1963] I.C.J. Rep. 15. 537
Case Concerning Rights of United States Nationals in Morocco (France v. United States of America, [1950] I.C.J. Rep. 176.
Case Concerning the Temple ofPreah Vihear (Cambodia v. Thailand), [1962] I.C.J. Rep. 6.
Case Concerning Military and Paramilitary Activities In And Against Nicaragua. (Nicaragua v. United States of America), Jurisdiction and Admissibility, Judgment, Decision on Jurisdiction of the Court and Admissibility of the Application of 26 November. [1984] I.C.J. Rep. 392.
Case Concerning Military and Paramilitary Activities in and against Nicaragua. (Nicaragua v. United States of America, Merits, [1986] I.C.J. Rep. 14.
Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. (Bosnia Herzegovina v. Serbia and Montenegro. Judgment of 26 February 2007. online: International Court of Justice
Case Concerning the Barcelona Traction, Light and Power Company, Limited, [1970] I.C.J. Rep. 3.
Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), [1980] I.C.J. Rep. 3.
Fisheries Jurisdiction Case (Federal Republic f Germany v. Iceland), [1974] I.C.J. Rep. 9.
Fisheries Jurisdiction Case (Spain v. Canada). Judgment of 4 December 1998 International Court of Justice
Gabcikovo-Nagymaros Project (Hungary v. Slovakia), [1997] I.C.J. Rep. 7.
Haya de la Torre (Colombia v. Peru), [1951] I.C.J. Rep. 71.
LaGrand Case (Germany v. United States of America), [2001] I.C.J. Rep. 466.
North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark; Federal Republic of Germany /Netherlands), [1969] I.C.R. Rep. 3.
Nottebohm Case (Liechtenstein v. Guatemala. Nottebohm Case (Liechtenstein v. Guatemala, Preliminary Objection, [1953] I.C.J. Rep. 111.
Nuclear Test Case (New Zealand v. France), [1974] I.C.J. Rep. 458.
Nuclear Tests (Australia v. France), [1974] I.C.J. Rep. 253. 538
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.K), [1998] I.C.J Rep. 115.
Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America). See Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), Judgment of 6 November of 2003. online: International Court of Justice:
ADVISORY OPINIONS
Certain Expenses of the United Nations (Article 17, Paragraph 2, of the Charter), Advisory Opinion, [1962] I.C.J. Rep. 151.
Legal Consequences of the Construction of A Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004. online:
Legal Consequences for States of the Continued Presence of South Africa in Namibia. (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, [1971] I.C.J. Rep. 16.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] I.C.J. Rep. 66.
Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, [1996] I.C.J. Rep. 66.
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, [1949] I.C.J. Rep. 174.
ORDERS
Case Concerning Pulp Mills on the River Uruguay. See Case Concerning Pulp Mills on the River Uruguay, Order of 12 July 2006. online International Court of Justice:
Case Concerning the Vienna Convention on Consular Relations (Paraguay v. United States of America), Order of 9 April 1998, [1998] I.C.J. Rep 248.
Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.K). Order of 10 September 2003. online: International Court of Justice
PERMANENT COURT OF INTERNATIONAL JUSTICE JUDGMENTS
Case of the Mavrommatis Palestine Concessions (1924), P.C.I.J. (Ser.A) No 2.
The Case ofS.S. "Lotus, (1927), P.C.I.J. (Ser. A) No 10.
ORDERS
Phosphates du Maroc, exceptions preliminaries du 14 June 1938, (1938) Rec CPJL, Serie A/B, No 74, 10.
UNITED STATES SUPREME COURT
Abbott Laboratories v. Gardner, U.S. 136, 148 (1967).
Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 345 (1936).
Baker v. Carr, 369 U.S. 186 (1962).
Brown v. Board of Education, 347 U.S. 483 (1954).
Carter v. Carter Coal Co, 298 U.S. 238; 56 S.Ct 855 (1936).
Champion v. Ames, 188 U.S. 321 (1903).
Chevron U.S.A. Inc. v. Natural Resources Defense Councel, Inc, 467 U.S. 837 (1984). Clinton v. Jones, 520 U.S. 681 (1997).
Colegrove v. Green, 328 U.S. 549 (1946).
Cooley v. Board of Port Wardens, 53 U.S. 299. (1851).
Cunningham v. Macon & Brunswick, 156 U.S. 400 (1895).
Dellums v. Bush, 752 F.Supp. 1141 (1990).
Doremus v. Board of Education, 342 U.S. 429 (1952).
Dred Scott v. Sanford, 19 Howard 393; 60 L.Ed. 691 (1856).
Fletcher v. Peck, 10 U.S. 87 (1810).
Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979).
Hayburn, 2 Dall. 409 (1742). Hudson and Smith v. Guestier, 11 U.S. 1 (1812).
Krippendorfv. Hyde, 110 U.S. 276, 283 (1884).
Lousiana v. Jumel, 107 U.S. 711 (1883).
Marbury v. Madison, 5 U.S. (lCr.) 137 (1803)
Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 315 (1819).
Minnesota Rate, 230 U.S. 352 (1913).
New Hampshire v. Louisiana, 108 U.S. 76 (1883).
Nixon v. the United States, 418 U.S. 683 (1974).
NLRB v. Jones & Laulin Steel Corp., 301 U.S. 1 (1937).
NLRB v. Hearts Publications (322 U.S. Ill (1944).
Osborn v. Bank, 9 Wheat. 738, 866 (1824).
Poe v. Ullman, 367 U.S. 497, 502 (1961).
Roe v. Wade, 410 U.S. 113 (1973).
The Venus, 12 U.S. 253 (1814).
Trustees of Dartmouth College v. Woodward, 17 U.S. (Wheat.) 517 (1819).
United States v. Darby, 312 U.S. 100 (1941).
United States v. Curtiss-Wright Export Corp, 299 U.S.304, 57 S.Ct 216, 81. L.Ed. 255 (1936).
United States v. Lopez, 514 U.S. 549 (1995).
United States v. Morrison, 529 U.S 598 (2000).
United States v. Pink, 315 U.S. 203, 62 S.Ct 552, 86 L.Ed796 (1942).
Wickardv. Filburn, 317 U.S. Ill (1942). 541
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
EUROPEAN COURT OF FIRST INSTANCE
Opel Austria GmbH v. Council of the European Union (Case T -115/94)
EUROPEAN COURT OF HUMAN RIGHTS
Cruz Varas v. Sweden (Cruz Varas v. Sweden (1991), 14 E.C. H.R. Rep. Ser, A.
Mamatkulov et al. v. Turkey (2005), Application No 46827/99 and 46951/99)
ARTICLES
Abi-Saab, Georges. "De L'Evolution de la Cour Internationale. Reflexions sur Quelques Tendances Recentes" (1992) 96 R.G.D.I.P. 273.
Aceves, William J. "Legrand" (2002) 96 A.J.I.L. 210.
Almaras, Jose. "Niklas Luhmann: La Teoria de los Sistemas Sociales antes de la Autopiesis" (1997) 173 Anthropos 62.
Alvarez-Jimenez, Alberto. "Inter-State Environmental Disputes, Provisional Measures and the International Court of Justice's Order in the Case Concerning Pulp Mills on the River Uruguay" (2006) 25 Temp. J. Science, Tech. & Envtl. L. 161.
Alvarez-Jimenez, Alberto. "A Reasonable Period of Time for Dispute Settlement Implementation: An Operative Interpretation for Developing Country Complainants" (2007) 6 World Trade Review 451.
Andersen, William R. Against Chevron—A Modest Proposal (2004) 56 Admin. Law Rev. 957.
Anderson, Scott. "Administration of evidence in WTO dispute settlement proceedings" in Yerxa, Rufus & Wilson, Bruce eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005) 177.
Bacchus, James. "WTO Appellate Body Roundtable" in Heifer, Laurence R. & Lindsay, Rae eds., New World Order or A World in Disorder? Testing the Limits of International Law: Proceedings of the 99* Annual Meeting The American Society of International Law, Washington, 2005 (Washington: American Society of International Law, 2005).
Barabas, Jason. "How Deliberation Affects Policy Opinions" (2004) 98 Am. Political Science Rev. 687. 542
Bhala, Raj & Gantz, David A. "WTO Case Review 2002" (2003) 20 Ariz. J. Int'l. & Comp. Law 143.
Behboodi, R. "Should" Means "Shall": A Critical Analysis of the Obligation to Submit Information under Article 13.1 of the DSU in Canada-Aircraft Case," (2000) 3 J. of Int'l. Econ. L. 563.
Bedjaoui, Mohammed. "Comments on the Report: The International Court of Justice: Efficiency of Procedures and Working Methods. Report of the Study Group with Additional Comments" in Gardner, J.P. & Wickremasinghe, Chanaka eds., The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997) 87
Bekker, Peter H. F. "Gabcikovo-Nagymaros Project" (1998) 92 A.J.I.L. 273.
Bekker, Pieter H.F. "The World Court's Ruling Regarding Israel's West Bank Barrier and the Primacy of International Law: An Insider's Perspective" (2005) 38 Cornell Int'l L. J. 553.
Bell, John. "The Judge as Bureaucrat" in Eekelaar, John & Bell, John eds., Oxford Essays in Jurisprudence. Third Series (Oxford: Clarendon Press, 1987) 33.
Bernardini, Piero. "The Role of the International Arbitrator" (2004) 20 Arbitration International 113.
Bethlehem, Daniel. "Remarks in Panel 'The International Court of Justice at 60: Performance and Prospects'" in Charlesworth, Hilary & Donovan, Donald Francis eds., Proceedings of the 100th Annual Meeting, Washington, Washington, 2006 (Washington: American Society of International Law, 2006) 403.
Beyer, Peter. "Introduction" in Niklas Lumann, Religious Dogmatics and the Evolution of Societies (New York: E. Mellen Pres, 1984).
Black, Julia. "Regulatory Conversations" (2002) 29 J.L. & Soc'y 163 at 168.
Bohanes, Jan & Sennekamp, Andreas. "Reflections on the concept of 'judicial economy' in WTO dispute settlement" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 424.
Boisson de Chazournes, Laurence. "Arbitration at the WTO: A Terra Incognita to be Further Explored" in Charnovitz, Steve, Steger, Debra P. & Van den Bossche, Peter eds., Law in the Service of Human Dignity. Essays in Honour of Florentino Feliciano (Cambridge: Cambridge University Press, 2005). 543
Boisson de Chazournes, Laurence & Mbengue, Makane Moise. "The Amici Curiae and the WTO Dispute Settlement System: The Doors are Open" (2003) 2 Law and Practice of International Courts and Tribunals 205.
Boisson de Chazournes, Laurence & Heathcote, Sarah. "The Role of the New International Adjudicator" in Bederman, David J. & Reed, Lucy eds., The Visible College of International Law. Proceedings of the 95th Annual Meeting, Washington, Washington, 2001 (Washington: American Society of International Law, 2001) 129.
Bourgeois, Jacques H. F. "Some Reflections on the WTO Dispute Settlement System from a Practitioner's Perspective" (2001) 4 J. of Int'l. Econ. L. 145
Bradley, Jane. "Internet roundtable. The Appellate Body's GSP decision" (2004) 3 World Trade Rev. 239.
Brennan Jr., William J. "The Constitution of the United States: Contemporary Ratification" in Levinson, Sanford & Mailloux, Steven eds., Interpretating Law and Literature. A Hermeneutic Reader (Evanson IL: Northwestern University Press, 1988) 13.
Brennan, William. "Interview" in Sturgess, Garry & Chubb, Philipp eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988)310.
Brinza, Daniel. "DSU reform: if it is not broken - improve it?" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 246.
Brownlie, Ian. "Politics and Law in International Adjudication" in Brower III, Charles H. & Pertkins, Nancy L. eds., Conflict & Coordination Across International Regimes. Proceedings of the 97th Annual Meeting, Washington, 2003 (Washington: American Society of International Law, 2003) 282.
Castaldi, Lauren. "Judicial Independence Threatened in Venezuela: The Removal of Venezuelan Judges and the Complications of the Rule of Law Reform" (2006) 37 Geo. J. Int'l L. 477.
Chappez, Jean. "Les mesures conservatoires devant la Cour internationale de Justice" in Charalambos Apostolidis, ed., Les arrets de la Cour internationale de Justice (Dijon: Editions Universitaires de Dijon, 2005) 45.
Charney, Jonathan I. "Disputes Implicating the Institutional Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance" in Lori Fisler Damrosch, ed., The International Court of Justice at A Crossroads (New York: Transnational Publishers Inc., 1987) 288. 544
Chamovitz, Steve. "Judicial Independence in the World Trade Organization" in Laurence Boisson de Chazournes, Cesare Romano & Ruth MacKenzie eds., International Organizations and International Dispute Settlement: Trends and Prospects (New York: Transnational Publishers, 2002). 219
Charnovitz, Steve. "Internet roundtable. The Appellate Body's GSP decision" (2004) 3 World Trade Rev. 239.
Charnovitz, Steve. "The Law of Environmental 'PPMs' in the WTO: Debunking the Myth of Illegality" (2002) 27 Yale J. of Int'l. L. 59.
Charnovitz, Steve. "The WTO's Environmental Progress" (2007) 10 J. of. Int'l. Econ. L. 685.
Cot, Jean-Pierre. "The Balance of Law and Politics" in Brower III, Charles H. & Pertkins, Nancy L. eds., Conflict & Coordination Across International Regimes. Proceedings of the 97th Annual Meeting, Washington, 2003 (Washington: American Society of International Law, 2003) 286.
Crawford, James. "Marbury v. Madison at the International Level" (2004) 36 Geo. Wash. Int'l L. Rev. 505.
Dai, Xinyuan. "Why Comply? The Domestic Constituency Mechanism" (2005) 59 International Organization 363.
Davey, William J. "Dispute Settlement in GATT" (1987-1988) 11 Fordham Int'l L.J. 51.
Davey, William J. "Has the WTO Dispute Settlement Exceeded Its Authority? A Consideration of Deference Shown by the System to Member Government Decisions and Its Use of Issue-Avoidance Technique" (2001) 4 J. of Int'l. Econ. L. 79.
Deggau, Hans-Georg. "The Communicative Autonomy of the Legal System" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 128.
Donaldson, Victoria. "The Appellate Body: Institutional and Procedural Aspects" in Patrick F. J. Macrory, Arthur E. Appleton & Michael G. Plummer, eds., The World Trade Organization: Legal, Economic and Political Analysis vol. 1 (New York: Springer, 2005) 1277.
Doussis, Emmanuella. "Interet Juridique et Intervention Devant La Cour Internationale de Justice" (2001) 55 R.G.D.I.P. 55.
Ehlermann, Claus-Dieter. "Six Years on the Bench of the 'World Trade Court'. Some Personal Experiences as Member of the Appellate Body of the World Trade Organization" (2002) 36 J. World Trade 605. 545
Ehlermann, Claus-Dieter. "Tensions between the dispute settlement process and the diplomatic and treaty-making activities of the WTO" (2003) 1 World Trade Rev. 301.
Ehlermann, Claus-Dieter & Lockhart, Nickolas. "Standard of Review in WTO Law" (2004) 7 J. of Int'l Econ. L. 491.
Eiseman, Pierre Michel. "L'Arret de la C.I.J. du 26 Novembre 1984 (Competence et Recevabilite) dans L'Affaire des Activities Militaires et Paramilitaires au Nicaragua et Contre Celui-Ci" (1984) XXX A.F.D.I. 372.
Elliot, E. Donald. "Chevron Matters: How the Chevron Doctrine Redefined the Roles of Congress, Courts and Agencies in Environmental Law" (2005) 16 Vill. Envtl.L.J 1.
Endicott, Timothy. "Law is Necessarily Vague" (2001) 7 Legal Theory 379.
Fitzmaurice, G. G. "The Law and Procedure of the International Court of Justice: General Principles and Substantive Law" (1950) 77 British Yearbook of International Law 1.
Fitzpatrick, Joan. "The Unreality of International Law in the United States and the LaGrand Case" (2002) 27 Yale J. Int'l L. 427
Forsythe, David P. "The International Court of Justice at Fifty" in Muller, A.S., Raic, D & Thuranszky, J.M. eds., The International Court of Justice. Its Future Role After Fifty Years (The Hague: Martinus Nijhoff Publishers, 1997) 385 at 393.
Franck, Thomas M. "Some Observations on the ICJ's Procedural and Substantive Innovations" (1987) 81 A.J.I.L. 116.
Franck, Thomas M. "The 'Powers of Appreciation': Who Is the Ultimate Guardian of UN Legality?" (1992) 86 Am. J. of Int. L. 519.
Franck, Thomas M. "World Made Law: The Decision of the ICJ in the Nuclear Test Cases" (1975) 69 A.J.I.L. 612.
Ginsburg, Ruth Bader. "Remarks on Writing Separately" (1990) 65 Wash. L. Rev. 133.
Glennon, Michael J. "Protecting the Court's Institutional Interests: Why Not the Marbury Approach? (1987) 81 A.J.I.L. 121.
Goetsch, Charles C. "The Future of Legal Formalism," (1980) 24 Am. J. Legal Hist. 221.
Gordon, Edward. "Legal Disputes under Article 36(2) of the Statute" in Lori Fisler Damrosch, ed., The International Court of Justice at A Crossroads (New York: Transnational Publishers Inc., 1987) 183 at 185. 546
Gowland-Debbas, Vera. "The Relationship Between the International Court of Justice and the Security Council in the Light of the Lockerbie Case" (1994) 88 Am. J. of Int'l. L. 643.
Gray, Christine. "The Use and Abuse of the International Court of Justice: Cases Concerning the Use of Force after Nicaragua" (2003) 14 E.J.I.L. 867.
Griffith, Gavan. "Commentary" in Bederman, David J. & Reed, Lucy eds., The Visible College of International Law. Proceedings of the 95th Annual Meeting, Washington, Washington, 2001 (Washington: American Society of International Law, 2001) 135.
Gross, Leo. "Compulsory Jurisdiction under the Optional Clause: History and Practice" in Lori Fisler Damrosch, ed., The International Court of Justice at A Crossroads (New York: Transnational Publishers Inc., 1987) 19.
Haggenmacher, Peter. "La Doctrine de Deux Elements du Droit Coutumier Dans la Pratique de la Cour Internationale" (1986) LXXXX R.G.D.I.P. 1.
Harriger, Katy J. "The Limits of Presidential Immunity" in Ivers, Gregg & McGuire, Kevin T. eds., Creating Constitutional Change (Charlottesville: University of Virginia Press, 2004) 79.
Herget, James E. "Unearthing the Origins of a Radical Idea: The Case of Legal Indeterminacy" (1995) 39 Am. J. Legal Hist. 59.
Higgins, Rosalyn. "Comments on the Report: The International Court of Justice: Efficiency of Procedures and Working Methods. Report of the Study Group with Additional Comments" in Gardner, J.P. & Wickremasinghe, Chanaka eds., The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997) 102.
Higgins, Rosalyn. "Interim Measures for the Protection of Human Rights" (1997) 36 Colum. J. Transnat'l L. 91.
Higgins, Rosalyn. "The ICJ, the ECJ, and the Integrity of International Law" (2003) 52 I.C.L.Q. 1.
Higgins, Rosalyn. "Policy Considerations and the International Judicial Process" (1968) 17 British Yearbook of International Law 58.
Horlick, Gary N. "The Consultation Phase of WTO Dispute Resolution - A Private Practitioner's View" (1998) 32 International Lawyer 685.
Howse, Robert. "Adjudicative Legitimacy and Treaty Interpretation in International Trade Law. The Early Years" in J.H.H. Weiler, ed., The EU, the WTO, and the NAFTA. Towards a Common Law of International Trade? (Oxford; Oxford University Press, 2000) 35. 547
Howse, Robert & Esserman, Susan. "The Appellate Body, the WTO dispute settlement system, and the politics of multilateralism" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 61.
Hudec, Robert. "GATT Dispute Settlement After the Tokyo Round: An Unfinished Business" (1980) 13 Cornell Int'l L.J. 145.
Hughes, Valerie. "Special challenges at the appellate stage: a case study" in Yerxa, Rufus & Wilson, Bruce eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005) 80.
Harriger, Katy J. "The Limits of Presidential Immunity," in Ivers, Gregg & McGuire, Kevin T. eds., Creating Constitutional Change (Charlottesville: University of Virginia Press, 2004) 79.
Hutchinson, Alan. "That's Just The Way It Is: Langille on Law" (1989) 34 McGill L.J. 145.
Iwasawa, Yuji. "WTO Dispute Settlement as Judicial Supervision" (2002) 5 J. of Int'l. Econ. L. 287.
Jackson, John. "Dispute Settlement Reports: Obligation to Comply or Option to "Buy Out"?" (2004) 98 Am. J. Int'l. L. 109.
Jackson, John H. "Justice Feliciano and the WTO Environmental Cases: Laying the Foundations of a 'Constitutional Jurisprudence' with Implications for Developing Countries" in Charnovitz, Steve, Steger, Debra P. & Van den Bossche, Peter eds., Law in the Service of Human Dignity. Essays in Honour of Florentino Feliciano (Cambridge: Cambridge University Press, 2005) 29.
Jhabvala, Farrokh. "Declarations of Judges of the International Court of Justice" (1978) 72 A.J.I.L. 830.
Jhabvala, Farrokh. "Individual Opinions under the New Rules of Court" (1979) 73 A.J.I.L. 661.
Kearns, Jason E. & Charnovitz, Steve. "Adjudicating Compliance in the WTO: A Review of DSU Article 21.5" (2002) 5 J. OFINT'L. ECON. L. 331.
Kennedy, Duncan. "Freedom and Constraint in Private Adjudication" (1986) J. Legal Educ. 518.
Keren, Michael. "Ideological Implications of the Use of Open Systems Theory in Political Science" (1979) 24 Behavioral Science 311. 548
Knodt, Eva M. "Foreword," in Luhmann, Social Systems (Stanford: Stanford University Press, 1995).
Knodt, Eva. "Toward a Non-Foundationalist Epistemology: The Habermas/Luhmann Controversy Revisited" (1994) 61 New German Critique 77.
Knox, John H. "The Judicial Resolution of Conflicts Between Trade and Environment" 29 Harv. Envtl. L. Rev. 1.
Kooijmans, P.H. "In Memoriam Manfred Lachs" (1993) 6 Leiden J. Int'l L. i. at ix.
Lacarte, Julio. "WTO Appellate Body Roundtable" in Heifer, Laurence R. & Lindsay, Rae eds., New World Order or A New World Disorder? Testing the Limits of International Law: Proceedings of the 99th Annual Meeting of the American Society of International Law, Washington, 2005 (Washington: American Society of International Law, 2005) 177. de Lacharriere, Guy. "Interview", in Sturgess, Garry & Chubb, Philipp eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988) 454.
Lachs, Manfred. "Interview", in Sturgess, Garry & Chubb, Philipp eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988)461.
Langille, Brian. "Revolution Without Foundation: The Grammar of Scepticism and Law" (1988)33McGillL.J.451.
Latty, Franck. "La Cour Internationale de Justice face aux Tiraillements du Droit International: Les Arrets dans Le Affaires des Activites Armies sur le Territoire du Congo (RDC C. OUGANDA, 19 Decembre 2005; RDC c. RWANDA, 3 Fevrier 2006) (2005) LI A.F.D.I. 205.
Lauterpacht, Elihud. "The Judicial and the Meta-Juridical in International Law" in Jerzy Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in honour of Krzysztof Skubieszewski (The Hague: Kluwer Law International, 1996) 215.
Layton, Duane W. & Miranda, Jorge O. "Advocacy Before World Trade Organization Dispute Settlement Panels in Trade Remedy Cases" (2003) 37 J. of World Trade 69.
Lempert, Richard. "The Autonomy of the Law: Two Visions Compared" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 152.
Lenner, Andrew. "Separate Spheres: Republican Constitutionalism in the Federalist Era" (1997) 41 Am. J. Legal Hist. 250. 549
Linzer, Peter. "The Meaning of Certiorari Denials" (1979) 79 Colum. L. Rev. 1127.
Lockhart, John. "Assessing the 'success' of the Appellate Body over the first ten years" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006)285.
Luhmann, Niklas. "The Self-Reproduction of Law and Its Limits" in Gunther Teubner, ed., Dilemmas of Law in the Welfare State (Berlin: Walter de Gruyter, 1986) 111.
Luhmann, Niklas. "The Unity of Law" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 12.
Maltzman, F. Spriggs, J. & Wahlbeck, P. "Strategy and Judicial Choice: New Institutionalist Approaches to Supreme Court Decisions" in C. Clayton & H. Gillman, eds., Supreme Court Decision Making New Institutionalist Approaches (Chicago: University of Chicago Press, 1999) 43.
Manouvel, Mita. "Metamosphose de L'Article 41 du Statut de la CIJ" (2002) R.G.D.I.P. 103.
Marceau, Gabriel. "Balance and coherence by the WTO Appellate Body: who could do better?" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006)326.
Marceau, Gabriel. "L'Affaire 'CE - Amiante' et la nouvelle jurisprudence de l'Organ d'appel de l'OMC concernant les risques a la sante" (2000) XXXVIII The Canadian Yearbook of International Law 213.
Marceau, Gabrielle & Stilwell, Matthew. "Practical Suggestions For Amicus Curiae Briefs Before WTO Adjudicating Bodies" (2001) 4 J. of Int'l Econ. L 155.
Marceau, Gabriel. "Pratique et pratiques dans le droit de 1'Organization mondiale du commerce" in Boisson de Chazournes, Laurence, Kohen, Marcelo G. & Buzzini, Gionata P. eds., Colloque de Geneve. La Pratique et le Droit International (Paris: Editions Pedone, 2004)159.
Marceau, Gabriel. "The WTO is NOT a Closed Box" in Charlesworth, Hilary & Donovan, Donald Francis eds., Proceedings of the 100th Annual Meeting of the American Society of International Law, Washington, Washington, 2006 (Washington: American Society of International Law, 2006) 29.
Matringe, Jean. "L'Arret de la Cour Internationale de Justice Dans L'Affaire LaGrand (Allemagne c. Etats-Unis D'Amerique) du 27 Juin 2001" 2002 XLVIII A.F.D.I. 215. 550
Matsushita, Mitsuo. "Some Thoughts on the Appellate Body" in Macrory, Patrick F. J., Appleton, Arthur E., & Plummer, Michael G. eds., The World Trade Organization: Legal, Economic and Political Analysis vol 1 (New York: Springer, 2005) 1389.
Matsushita, Mitsuo. "WTO Appellate Body Roundtable" in Heifer, Laurence R. & Lindsay, Rae eds., New World Order or A New World Disorder? Testing the Limits of International Law: Proceedings of the 99th Annual Meeting of the American Society of International Law, Washington, 2005 (Washington: The American Society of International Law, 2005) 175.
McRae, Donald M. "GATT Article XX and the WTO Appellate Body" in Bronckers, Marco & Quick, Reinhard eds., New Directions in International Economic Law. Essays in Honour of John Jackson (The Hague: Kluwer Law International, 2000) 219.
McRae, Donald, "The Emerging Appellate Jurisdiction in Internacional Trade Law" in James Cameron & Karen Campbell, eds., Dispute Resolution in the World Trade Organization (London: Cameron Mat, 1998) 98.
McRae, Donald/Treaty interpretation and the development of international trade law by the WTO Appellate Body" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 360.
McWhinney, Edward. "The International Court and Judicial Law-Making. Nuclear Tests Re-visited" in Jerzy Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubieszewski (The Hague: Kluwer Law International, 1996) 509.
Mitchel, Andrew. "Due process in WTO disputes" in Yerxa, Rufus & Wilson, Bruce eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005) 144.
Novelli, Nick. "Member Intervention in World Trade Organization Dispute Settlement Proceedings After EC—Sardines: The Rules, Jurisprudence, and Controversy" (2003) 37 J. of World Trade 673.
Oda, Shigeru. "The Compulsory Jurisdiction of the International Court of Justice: A Myth? A Statistical Analysis of Contentious Cases" (2000) 491.C.L.Q. 251.
Oda, Shigeru. "The International Court of Justice Viewed from the Bench (1976-1993)" in Recueil des Cours. Collected Courses of the Hague Academy of International Law, vol. 7 1993 (Dordrecht: Marlines Nijhoff Publishers, 1995)
Oesch, Matthias. "Standards of review in WTO panel proceedings" in Yerxa, Rufus & Wilson, Bruce eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005) 161. 551
Orakhelashvili, Alexander. "The Arrest Warrant Case (Congo v. Belgium)" (2002) 96 A.J.I.L. 687.
Osieke, Ebere. "The Legal Validity of Ultra Vires Decisions of International Organizations" (1983) 77 A.J.I.L. 239.
Ost, Francois. "Between Order and Disorder: The Game of Law" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 70
Palmer, Robert C. "Obligations of Contracts: Intent and Distorsion" (1986-1987) 37 Case W. Res. L. Rev. 631.
Petersman, Ernst-Ulrich. "Strategic Use of WTO Dispute Settlement Proceedings for Advancing WTO Negotiations on Agriculture" in Ernst-Ulrich Petersmann & James Harrison, eds., Reforming the World Trading System. Legitimacy, Efficiency, and Democratic Governance (Oxford: Oxford University Press, 2005) 127.
Plank, Rosine. "An Unofficial Description of How a GATT Panel Works and Does Not" (1987) 29 Swiss Review of International Competition Law 81.
Posner, Eric. "The International Court of Justice: Voting and Usage Statistics", in Heifer, Laurence R. & Lindsay, Rae eds., New World Order or A New World Disorder? Testing the Limits of International Law: Proceedings of the 99th Annual Meeting of the American Society of International Law, Washington, 2005 (Washington: The American Society of International Law, 2005) 130.
Pound, Roscoe. "Mechanical Jurisprudence" (1908) 8 Colum. L. Rev. 605.
Quigley, John. "LeGrand: A Challenge to the U.S. Judiciary" (2002) 27 Yale J. Int'l L. 435.
Redish, Martin H. "Judicial Review and the 'Political Question" (1984) 79 Nw. U. L. Rev. 1031.
Regan, Donald H. "Regulatory Purpose and "Like Products" in Article 111:4 of the GATT (With Additional Remarks on Article 111:2)" (2002) 36 J. of World Trade 443.
Rehnquist, William. "Remarks on the Process of Judging" (1992) 49 Wash. & Lee L. Rev. 263.
Reichler, Paul S. "Holding America to Its Own Best Standards: Abe Chayes and Nicaragua in the World Court" 2001 (42) Harv. Int'l L.J. 15. 552
Reif, Timothy M. & Eckert, Julie. "Courage You Can't Understand: How to Achieve the Right Balance Between Shaping and Policing Commerce in Disputes Before the World Trade Organization" (2004) 42 Colum. J. Transnat'l L. 657.
Reisman, William M. "Enforcement of International Judgments" (1969) 63 A.J.I.L. 1.
Reisman, Michael. "Has the International Court of Justice Exceeded Its Jurisdiction?" (1986) 80 A.J.I.L. 128.
Reisman, W. Michael. "The Constitutional Crisis in the United Nations" (1993) 87 A.J.I.L. 83.
Reisman, W. Michael. "The Cult of Custom in the Late 20th Century" (1987) 17 Cal. W. Int'l L.J. 133.
Rhodes, Sylvia A. "The Article 21.5/22 Problem: Clarification Through Bilateral Agreements?" (2000) 3 J. of Int'l. Econ. L. 553.
Robinson, Davis R. "The Role of Politics in the Election and the Work of Judges of the International Court of Justice" in Brower III, Charles H. & Pertkins, Nancy L. eds., Conflict & Coordination Across International Regimes. Proceedings of the 97' Annual Meeting, Washington, 2003 (Washington: American Society of International Law, 2003) 277.
Roessler, Frieder. "The Institutional Balance Between the Judicial and the Political Organs of the WTO" , http://www.ksg.harvard.edu/cbg/Conferences/trade/roessler.htm
Rosenne, Shabtai. "Publications of the International Court of Justice" (1987) 81 A.J.I.L. 681.
Rottleuthner, Hubert. "Biological Metaphors in Legal Thought" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 97.
Ruiz Fabri, Helene & Sorel, Jean-Marc. "Chronique de jurisprudence de la Cour internationale de Justice (2001)" (2002) 129 J.D.I. 815.
Ruiz Fabri, Helene & Sorel, Jean-Marc. "Chronique de jurisprudence de la Cour internationale de justice" (2003) 130 J.D.I. 855.
Sacerdoti, Georgio. "The dispute settlement system of the WTO in action: a perspective on the first ten years" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 35. 553
Sacerdoti, Georgio. "The role of lawyers in the WTO dispute settlement system" in Yerxa, Rufus & Wilson, Bruce eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005) 125.
Sands, Philippe. "The independence of the international judiciary" in Charaovitz, Steve Steger, Debra P. & Van den Bossche, Peter eds., Law in the Service of Human Dignity. Essays in Honour of Florentino Feliciacino (Cambridge: Cambridge University Press, 2005)313.
Scalia, Antonin. "The Dissenting Opinion" (1994) Journal of the Supreme Court History 33.
Schacter, Oscar. "New Custom: Power, Opinio Juris and Contrary Practice" in Jerzy Makarczyk, ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubieszewski (The Hague: Kluwer Law International, 1996) 531.
Scharf, Fritz. W. "Judicial Review and the Political Question: A Functional Analysis" (1966) 75 Yale L.J. 517
Schuchhardt, Christiane. "Consultations" in Macrory, Patrick F. J., Appleton, Arthur E., & Plummer, Michael G. eds., The World Trade Organization: Legal, Economic and Political Analysis vol 1 (New York: Springer, 2005) 1197.
Sinclair, Sir Ian. "The Court as an Institution: Its Role and Position in International Society" in D.W. Bowett et. al., eds., The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997) 21.
Singh, Nagendra. "Interview", in Sturgess, Garry & Chubb, Philipp eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988) 449.
Songer, Donald, Segal, Jeffrey A. & Cameron, Charles M. "The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions" (1994) 38 American Journal of Political Science 673.
Stack, Kevin M. "The Practice of Dissent in the Supreme Court" (1995 - 1996) Yale L. J, 2235.
Sur, Serge. "Les Affaires des Essais Nucleaires (Australie c. France. Nouvelle-Zelande c. France. CI.I.J. - Arret du 20 Decembre 1974), (1975) LXXIX R.G.D.I.P. 972.
Schwebel, Stephen M. "Ad Hoc Chambers of the International Court of Justice" (1987) 81 A.J.I.L. 831. 554
Schwebel, Stephen. "Interview", in Sturgess, Garry & Chubb, Philipp eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988) 470.
Scott, Kevin M. "Understanding Judicial Hierarchy: Reversals and the Behaviour of Intermediate Appellate Judges" (2006) 40 Law & Soc'y Rev. 163.
Shapiro, Martin. "Political Jurisprudence" in Shapiro, Martin & Stone Sweet, Alec, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002) 19.
Shapiro, Martin. "The Success of Judicial Review and Democracy" in Shapiro, Martin & Stone Sweet, Alec, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002) 149.
Shuman, Samuel I. "Judicial Legislation or in What Way is Relevance Relevant to Judicial Decision-Making" in Legal Reasoning. Proceedings of the World Congress for Legal and Social Philosophy (Bruxelles: Etablissments Emile Bruylan, 1971) 387.
Simma, Bruno. "How Distinctive Are Treaties Protecting Collective Interests? The Case of Human Rights Treaties" in Gowlland-Debbas, Vera ed., Multilateral Treaty-Making (Martinus Nijhoff Publishers: The Hague, 2000) 83
Staton, Jeffrey K. "Constitutional Review and the Selective Promotion of Case Results" (2006) 50 American Journal of Political Science 98.
Songer, Donald, Segal, Jeffrey A. & Cameron, Charles M. "The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions" (1994) 38 American Journal of Political Science 673.
Starr, Kenneth W. "Judicial Review in the Post-Chevron Era" (1985-1986) 3 Yale J. on Reg. 283.
Steinberg, Richard H. "Alternative Perspectives on the Independence of International Courts. A Map of the Issues" in Heifer, Laurence R. & Lindsay, Rae eds., New World Order or A New World Disorder? Testing the Limits of International Law: Proceedings of the 99th Annual Meeting of the American Society of International Law, Washington, 2005 (Washington: The American Society of International Law, 2005) 129.
Stern, Robert L. "The Commerce Clause and the National Economy, 1936-1946" (1945- 1946) 59 Harv. L. Rev. 645.
Stone Sweet, Alec. "Judicialization and the Construction of Governance" in Shapiro, Martin & Stone Sweet, Alec, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002) 55. 555
Stone Sweet, Alec. "Path Dependence, Precedent, and Judicial Power" in Shapiro, Martin & Stone Sweet, Alec, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002) 112.
Stone, Martin. "Formalism" in Jules Coleman and Scott Shapiro, eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press: Oxford, 2002).
Summers, Robert & Taruffo, Michelle. "Interpretation and Comparative Analysis" in MacCormick, D. Neil & Summers, Robert T. eds., Interpretating Statutes: A Comparative Study (Brookfield USA: Darmouth, 1991) 461.
Sunstein, Cass R. "Beyond Chevron: The Executive's Power to Say What the Law Is" (2006) 115 Yale L.J. 2580.
Sunstein, Cass. "Law and Administration After Chevron", (1990) 90 Colum. L. Rev. 2071.
Sztompka, Piotr. "The Trauma of Social Change. A Case of Postcommunist Societies" in Jeffrey C. Alexander, Ron Eyerman, Bernhard Giesen, Neil J. Smelser and Piotr Sztompka, Cultural Trauma and Collective Identity (Berkeley: University of California Press, 2004) 155.
Taft IV, William Howard. "Remarks in Panel 'The International Court of Justice at 60: Performance and Prospects'" in Charlesworth, Hilary & Donovan, Donald Francis eds., Proceedings of the 100th Annual Meeting, Washington, Washington, 2006 (Washington: American Society of International Law, 2006) 398.
Teubner, Gunther. "Evolution of Autopoietic Law" in Gunther Teubner, ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988) 217.
Thayer, James B. "The Origin and Scope of the American Doctrine of Constitutional Law" (1893) 7 Harv. L. Rev. 120.
Trachtman, Joel P. & Moremen, Philip M. "Costs and Benefits of Private Participation in WTO Dispute Settlement: Whose Rights is It Anyway?" (2003) 44 Harv. J. of Int.l L. J. 221.
Tigroudja, Helene. "La force obligatoire des mesures conservatoires indiquees par la Cour europeenne des droits de l'homme. Observations sous 1'arret du 6 fevrier 2003 Mamatkulov v. Turquie" (2003) R.G.D.I.P. 601.
Tushnet, Mark. "William Rehnquist's Federalism" in Bradley, Craig ed., The Rehnquist Legacy (Cambridge: Cambridge University Press, 2006) 187. 556
Unidentified author, "Constitutional Law - Dormant Commerce Clause - Washington Supreme Court Upholds State Anti-Spamming Law - Washington v. Heckel, 24 P.3d 404 (Wash. 2001), cert, denied, 70 U.S.L.W. 3193 (U.S. Oct. 29, 2001) (No 01-469)" (2001 - 2002) 115 Harv. L. Rev. 931.
Unidentified author, "The Mootness Doctrine in the Supreme Court" (1974 - 1975) 88 Harv. L. Rev. 373.
Van Alstyne, William W. "A Critical Guide to Marbury v. Madison" (1969) 18 Duke L. J. 1.
Van des Bossche, Peter. "From Afterthought to Centrepiece: The WTO Appellate Body and its Rise to Prominence in the World Trading System" in Sacerdoti, Giorgio, Yanovich, Alan & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006) 289.
Waldock, Sir Humphrey "The International Court of Justice as Seen From the Bar and Bench" (1983) 54 British Yearbook of International Law 1
Wallet-Houget, Julien «La participation des ONG au mecanisme de reglement des differences de l'OMC: une perspective environnementale » (2005) 18 Revue Quebecoise de Droit International 127.
Weckel, Philippe. "Chronique de jurisprudence Internationale" (2004) CVIII R.G.D.I.P 215.
Weiler, J.H.H. "The Geology of International Law - Governance, Democracy and Legitimacy" (2004) 64 ZaoRV 547.
Weiler, J.H.H. "The Rule of Lawyers and the Ethos of Diplomats. Reflections on the Internal and External Legitimacy of WTO Dispute Settlement" (2001) 35 J. World Trade 191.
Yasuaki, Onuma. "Is the International Court of Justice an Emperor Without Clothes? (2002) 8 International Legal Theory 3.
Jennings, Sir Robert Yewdall. "Report of the International Court of Justice" UN Doc. A/46/PV.44. (1991), reprinted in (1992) 86 A J. I. L. 249.
BOOKS
Alexander, Jeffrey C, Eyerman, Ron, Giesen, Bernhard, Smelser, Neil J. & Sztompka, Piotr, Cultural Trauma and Collective Identity (Berkeley: University of California Press, 2004). 557
Apostolidis, Charalambos ed., Les arrets de la Cour Internationale de Justice (Dijon: Editions Universitaires de Dijon, 2005).
Amr, Mohamed Sameh M., The Role of the International Court of Justice as the Principal Judicial Organ of the United Nations (The Hague: Kluwer Law International, 2003)
Bacchus, James, Trade and Freedom (London: Cameron May, 2004).
Bahgwati, Jagdhish & Hirsch, Mathias eds., The Uruguay Round and Beyond: Essays in Honour of Arthur Dunkel (New York: Springer-Verlag, 1998).
Baum, Lawrence, Judges and Their Audiences. A Perspective on Judicial Behavior (Princeton and Oxford: Princeton University Press, 2006).
Bederman, David J. & Reed, Lucy eds., The Visible College of International Law. Proceedings of the 95th Annual Meeting of the American Society of International Law, Washington, 2001 (Washington: American Society of International Law, 2001).
Bell-Villada, Gene H. ed., Conversations with Gabriel Garcia Marquez (Jackson: University Press of Mississippi, 2006).
Berger, Raoul, Congress v. the Supreme Court (Cambridge: Harvard University Press, 1969).
Boisson de Chazournes, Laurence, Romano, Cesare & MacKenzie, Ruth eds., International Organizations and International Dispute Settlement: Trends and Prospects (New York: Transnational Publishers, 2002).
Boisson de Chazournes, Laurence, Kohen, Marcelo G. & Buzzini, Gionata P. ed., Colloque de Geneve. La Pratique et le Droit International (Paris: Editions Pedone, 2004).
Bowett, D.W. et. ai, eds., The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997).
Bradley, Craig ed., The Rehnquist Legacy (Cambridge: Cambridge University Press, 2006).
Brower III, Charles H. & Pertkins, Nancy L. eds., Conflict & Coordination Across International Regimes. Proceedings of the 97' Annual Meeting, Washington, 2003 (Washington: American Society of International Law, 2003).
Buchanan, James M. & Tullock, Gordon, The Calculus of Consent. Logical Foundations of Constitutional Democracy, 2d ed., (Ann Arbor: University of Michigan Press, 1967).
Cannizzaro, Enzo & Palchetti, Paolo eds., Customary International Law on the Use of Force. A Methodological Approach (Leiden: Martines Nijhoff Publishers, 2005). 558
Cardozo, Benjamin N., The Nature of the Judicial Process 3d. reprint (New Haven: Yale University Press, 1971).
Charlesworth, Hilary & Donovan, Donald Francis eds., Proceedings of the 100th Annual Meeting of the American Society of International Law, Washington, 2006 (Washington: American Society of International Law, 2006).
Charnovitz, Steve, Steger, Debra P. & Van den Bossche, Peter eds., Law in the Service of Human Dignity. Essays in Honour of Florentino Feliciano (Cambridge: Cambridge University Press, 2005).
Clayton, C. & Gillman, H. eds., Supreme Court Decision Making New Institutionalist Approaches (Chicago: The University of Chicago Press, 1999).
Coleman, Jules & Shapiro, Scott eds., The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press: Oxford, 2002).
Comparato, Scott A., Amici Curiae and Strategic Behaviour in State Supreme Courts (Connecticut: Praeger, 2003).
Craig, Paul & de Burca, Grainne, EU Law. Text, Cases, and Materials, 3d. ed., (Oxford: Oxford University Press, 2003).
Daintith, Terence & Teubner, Gunther eds., Contract and Organization: Legal Analysis in the Light of Economic and Social Theory (Berlin: Walter de Gruyter, 1986).
Des Visscher, Charles, Theory and Reality in Public International Law, trans, by P. E. Corbett (Princeton: Princeton University Press, 1968).
Dworkin, Ronald, Taking Rights Seriously (Cambridge: Cambridge University Press, 1978).
Eekelaar, John & Bell, John eds., Oxford Essays in Jurisprudence. Third Series (Oxford: Clarendon Press, 1987).
Esposito, Helena, L'Operazione di Osservazione. Costruttivismo e Teoria de Sistema Sociali (Milano: France Angeli, 1992).
Fisher, Louis, American Constitutional Law, 6 ed. (Durham: Carolina Academic Press, 2005).
Fisler Damrosch, Lori ed., The International Court of Justice at A Crossroads (New York: Transnational Publishers Inc., 1987). 559
Frankfurter, Felix, Mr. Justice Holmes and the Supreme Court (Cambridge: Harvard University Press, 1938)
Gardner Geyh, Charles, When Courts & Congress Collide. The Struggle for Control of America's Judicial System (Ann Harbor: The University of Michigan Press, 2006).
Gardner, J.P. & Wickremasinghe, Chanaka eds., The International Court of Justice: Process, Practice and Procedure (London: British Institute of International and Comparative Law, 1997).
Geny, Francois, Methode d'Interpretation et Sources en Droit Prive Possitif Essay Critique, 2nd. ed, trans by the Lousiana State Law Institute (Louisiana: Louisiana State University Law School, 1963).
Giddens, Anthony, Central Problems in Social Theory. Action, Structure and Contradiction in Social Analysis (Berkley: University of California Press, 1979).
Gowlland-Debbas, Vera ed., Multilateral Treaty-Making (Martinus Nijhoff Publishers: The Hague, 2000).
Habermas, Jurgen, Connaissance et Interet (Paris: Gallimard, 1976).
Hammond, Thomas H., Bonneau Chris W., & Sheehan, Reginal S., Strategic Behaviour and Public Policy on the U.S. Supreme Court (Stanford: Stanford University Press, 2005)
Hartman, Garty, Mersky, Roy M. & Tate, Cindy L., Landmark Supreme Court Cases. The Most Influential Decisions of the Supreme Court of the United States (New York: Facts on File, Inc., 2004).
Haskins, George Lee, History of the Supreme Court of the United States, vol 2. Part One. (New York: MacMillan Publishing Co., Inc., 1981).
Heifer, Laurence R. & Lindsay, Rae eds., New World Order or A New World Disorder? Testing the Limits of International Law: Proceedings of the 99th Annual Meeting of the American Society of International Law, Washington, 2005 (Washington: The American Society of International Law, 2005).
Herrera-Vega, Eliana, Trafic de Drogues et Capitalisme. Un paradoxe contemporain (Paris: L'Harmattan, 2006).
Hudec, Robert, The GATT Legal System and World Trade Diplomacy (New Hamphisre: Butterworth Legal Publishers, 1990).
Hudec, Robert, Enforcing International Trade Law: The Evolution of the Modern GATT Legal System (Salem, NH: Butterworth Legal Publishers, 1993) 560
Ivers, Gregg & McGuire, Kevin T. eds., Creating Constitutional Change (Charlottesville: University of Virginia Press, 2004).
Jackson, John H., World Trading System. Law and Policy of International Economic Relations 2d ed. (Cambridge: MIT Press, 1997)
Jackson, John H., The Jurisprudence of GATT and the WTO. Insights on treaty law and economic relations (Cambridge: Cambridge University Press, 2000).
Kennedy, Duncan, A Critique of Adjudication (Cambridge: Harvard University Press, 1997).
Kent Curtis, Michael, Parker, J. Wilson, Douglas, Davison M., & Finkelman, Paul, Constitutional Law in Context, vol 1. (Durham: Carolina Academic Press, 2001).
King, Michael & Thornhill, Chris, Niklas Luhmann's Theory of Politics and Law (New York: Palgrave MacMillan, 2003).
Kommers, Donald P., Finn John E. & Jacobsohn, Gary J., American Constitutional Law. Governmental Powers and Democrcacy vol 1. 2d ed. (Lanham: Rowman & Littlefield Publishers, Inc., 2004).
Koopmans, Tim, Courts and Political Institutions, (Cambridge: Cambridge University Press, 2003).
Lauterpacht, Hersch, The Development of International Law by the International Court Reprinted (Cambridge: Grotious Publications Limited, 1982).
Lauterpacht, Hersh, The Function of Law in the International Community (Oxford: Clarendon Press, 1933).
Levinson, Sanford & Mailloux, Steven eds., Interpretating Law and Literature. A Hermeneutic Reader (Evanson IL: Northwestern University Press, 1988).
Luhmann, Niklas, Das Recht der Gesellschaft (Frankfurt: Suhrkamp Verlag, 1993).
Luhmann, Niklas, El Derecho de la Sociedad, trans, by Javier Torres Nafarrate (Mexico: Universidad Iberoamericana, 2002).
Luhmann, Niklas, Social Systems (Stanford: Stanford University Press, 1995).
Luhmann, Niklas, Teoria Politica del Bienestar, 3th ed. trans, by Fernando Vallespin (Madrid: Alianza Editorial, 1993).
Lumann, Niklas, Religious Dogmatics and the Evolution of Societies (New York: E. Mellen Pres, 1984). 561
MacCormick, D. Neil & Summers, Robert T. eds., Interpretating Statutes: A Comparative Stady (Brookfield USA: Darmouth, 1991).
MacCormick, Neil, Legal Reasoning and Legal Theory (Oxford: Clarendon Press 1989).
Macmillan, Fiona, WTO and the Environment (London: Sweet & Maxwell, 2001).
Macrory, Patrick F. J., Appleton, Arthur E., & Plummer, Michael G. eds., The World Trade Organization: Legal, Economic and Political Analysis vol 1 (New York: Springer, 2005).
Makarczyk, Jerzy ed., Theory of International Law at the Threshold of the 21st Century: Essays in Honour of Krzysztof Skubieszewski (The Hague: Kluwer Law International, 1996)
Maltzman, Forrest, Springgs II, James F. & Wahlbeck, Paul J., Crafting Law on the Supreme Court. The Collegial Game (Cambridge: Cambridge University Press, 2000).
Matsushita, Mitsuo, Schoenbaum, Thomas J. & Mavroidis, Petros C, The World Trade Organization. Law, Practice, and Policy (Oxford: Oxford University Press, 2003).
Robert McCloskey, The American Supreme Court, revised by Sanford Levinson (Chicago: the University of Chicago University Press, 2005).
Nicholas Mercuro & Steven G. Medema, Economics and the Law: From Posner to Post- (New Jersey: Princeton University Press, 1997).
Theodor Meron, The Humanization of International Law (Leiden: Martinus Nijhoff Publishers, 2006).
Charles A. Miller, The Supreme Court and the Uses of History (Cambridge: The Belknap Press of Harvard University Press, 1969)
Donald Morgan, Justice William Johnson (Columbia: University of South Carolina Press, 1954).
Muller, A.S., Raic, D & Thuranszky, J.M. eds., The International Court of Justice. Its Future Role After Fifty Years (The Hague: Martinus Nijhoff Publishers, 1997).
Murphy, Walter F., Elements of Judicial Strategy, (Chicago: the University of Chicago Press, 1964).
Petersmann, Ernst-Ulrich, The GATT/WTO Dispute Settlement System. International Law, International Organizations and Dispute Settlement (London: Kluwer Law International, 1997). 562
Petersmann, Emst-Ulrich & Harrison, James eds., Reforming the World Trading System. Legitimacy, Efficiency, and Democratic Governance (Oxford: Oxford University Press, 2005).
Pitkin, H., Wittgenstein and Justice (Berkeley: University of California, 1992).
Posner, Richard, Law and Literature. A Misunderstood Relation (Cambridge: Cambridge University Press, 1990).
Rehnquist, William H., The Supreme Court New Edition. (New York: Alfred A. Knopf, 2001).
Rosenne, Shabtai, The Law and Practice of the International Court 1920-2005, vol. 1 (Leiden: Martinus Nijhoff Publishers, 2006).
Rosenne, Shabtai, The World Court. What it is and how it works, 5d ed. (Dordrecht: Martinus Nijhoff Publishers, 1995).
Rotunda, Ronald D. & Novak, John E., Treatise on Constitutional Law: Substance and Procedure, vol 1, 3d ed. (St Paul: West Group, 1999).
Sacerdoti, Giorgio, Yanovich, Alan, & Bohanes, Jan eds., The WTO at Ten. The Contribution of the Dispute Settlement System (Cambridge: Cambridge University Press, 2006).
Sands, Philippe, Mackensie, Ruth, & Shany, Yuval eds., Manual on International Courts and Tribunals (London: Butterworths,1999).
Shapiro, Martin & Stone Sweet, Alec, On Law, Politics, and Judicialization (Oxford: Oxford University Press, 2002).
Shulte, Constanze, Compliance with Decisions of the International Court of Justice (Oxford: Oxford University Press, 2004).
Spencer, Herbert, Justice, (Paris: Librairie Guillaumin Et Cie, 1893).
Spencer, Herbert, Principles of Sociology, Stanislav Andreski, ed., (Great Britain: McMillan, 1969).
Steger, Debra P., Peace Through Trade: Building the World Trade Organization (London: Cameron May, 2004).
Sturgess, Garry & Chubb, Philipp eds., Judging the World. Law and Politics in the World's Leading Courts (Richmond: Butterworths Australia, 1988). 563
Segal, Jeffrey A., Spaeth, Harold J., & Benesh, Sara C, The Supreme Court in the American Legal System (Cambridge: Cambridge University Press, 2005).
Swindler, William F., Court and Constitution in the 20th Century. The Old Legality, 1889- 1932, vol 1. (New York: The Bobbs-Merrill Company Inc, 1969).
Teubner, Gunther ed., Autopietic Law: A New Approach to Law and Society (Berlin: Walter de Gruyter, 1988).
Teubner, Gunter, Le droit: un systeme autopoietique, traduit de l'allemand par Gaby Maier et Nathalie Boucquey (Paris: Presses Universitaires de France, 1993).
Thirlway, H., Non-Appearance Before the International Court of Justice (Cambridge: Cambridge University Press, 1985).
Tribe, Laurence H., American Constitutional Law (Mineola: The Foundation Press, Inc, 1978).
Wallerstein, Immanuel, La decadencia del poder estadounidense (Mexico: Editores Independientes, 2005).
Warren, Charles, Supreme Court in U.S. History (Boston: Little Brown & Company, 1922).
Weiler, J.H.H. ed., The EU, the WTO, and the NAFTA. Towards a Common Law of International Trade? (Oxford; Oxford University Press, 2000).
Wittgenstein, Ludwig, Philosophical Investigations, trans by G.E.M. Anscombe (Oxford: Basil Blackwell, 1958).
World Trade Organization. The Legal Texts. The Results of the Uruguay Round of Multilateral Trade Negotiations (Cambridge: Cambridge University Press, 1999)
Yerxa, Rufus & Wilson, Bruce eds., Key Issues in WTO Dispute Settlement. The first ten years (Cambridge: Cambridge University Press, 2005).
ONLINE ARTICLES
Petros Mavroidis, "Amicus Curiae Briefs Before the WTO: Much Ado About Nothing" Jean Monnet Working Paper No 2 (2001) available at http://www.jeanmonnetprogram.Org/papers/01/010201 .html