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Toward a Theory of Effective Supranational Adjudication Article Toward a Theory of Effective Supranational Adjudication Laurence R. Helfer' Anne-Marie Slaughter t t CONTENTS I. TIE MEASURE OF SUCCESS: DEFINING 'EFFECTIVE" SUPRANATIONAL ADJUDICATION ..................................... 282 A. Defining Effective Adjudication by Domestic Courts ........ 282 B. Assessing the Effectiveness of hnternationalAdjudication .... 284 C. Defining Effective SupranationalAdjudication .............287 II. THE STORY OF EUROPE ............................... 290 A. The European Court of Justice........................ 290 B. The European Court of Human Rights ................. 293 C. The European Courts Compared ...................... 297 III. A CHECKLIST FOR EFFECTIVE SUPRANATIONAL ADJUDICATION ... 298 A. A Methodological Note ............................ 298 B. The Checklist .................................... 300 1. Factors Within the Control of States Party to an Agreement Establishing a SupranationalTribunal ..............300 t Associate Professor of Law, Loyola Law School. Los Angeles tt J. Sinclair Armstrong Professor ol International. Foreign. and Compaate U%%.Harsaid Lay% School. We are grateful to Amanda Frost, Stephen Frug. Stuart Gnder. Amir LzLht. Sharon Kasok. Miram Porter, Tamar Shapiro, and Tim Wu for research assistance Lyonettc Louis-Jacques. Foreign and International Law Reference Librarian at the University o Chicago School o Law. and Stephen Wiles ot the International Legal Studies Library at Harvard Law School v,ere also indelatigable in traking dow'n sources. Joseph H.H. Weiler provided inspiration and encouragement at a cntical point We also vtsh to thank Robert Wintemute for comments on an earlier dralt and Martha Mino% and Henry Steiner tr particularly helpful comments at a Harvard Law School lacult lunch 273 HeinOnline -- 107 Yale L.J. 273 1997-1998 The Yale Law Journal [Vol. 107: 273 a. Composition of the Tribunal ................... 300 b. Caseload or Functional Capacity of the Court ...... 301 c. Independent Facqinding Capacity ............... 303 d. FormalAuthority or Status as Law of the Instrument That the Tribunal Is Charged with Interpreting and Applying 304 2. Factors Within the Control of the Judiciary ........... 307 a. Awareness of Audience ...................... 308 b. Neutrality and Demonstrated Autonomy from Political Interests ................................. 312 c. Incrementalism ............................ 314 d. Quality of Legal Reasoning ................... 318 e. Judicial Cross-Fertilizationand Dialogue ......... 323 f. Form of Opinions .......................... 326 3. Factors Often Beyond the Control of States or Judges ... 328 a. Nature of Violations ........................ 329 b. Autonomous Domestic Institutions Committed to the Rule of Law and Responsive to Citizen Interests ........ 331 c. Relative Cultural and Political Homogeneity of States Subject to a SupranationalTribunal ............. 335 C. Reviewing the Checklist ........................... 336 IV. APPLYING THE CHECKLIST TO THE UNITED NATIONS HUMAN RIGHTS COMMITTEE ........................... 337 A. An Overview of the Committee ....................... 338 1. The Reporting Process ......................... 338 2. General Comments ............................ 340 3. The Petition System ........................... 341 B. Toward an Increasingly JudicialApproach to the Petition System ................................. 343 1. Factors Principally Within the Control of States Parties .. 345 a. Composition of the Tribunal ................... 345 b. Case Load or Functional Capacity of the Tribunal ... 347 c. Independent Factfinding Capacity ............... 349 d. Formal Authority or Status as Law .............. 351 2. Factors Within the Control of the Tribunal ........... 352 a. Awareness of Audience ...................... 352 b. Neutrality and DemonstratedAutonomy from Political Interests .......................... 353 c. Incrementalism and Awareness of PoliticalBoundaries 355 d. Quality of Legal Reasoning ................... 356 e. Judicial Cross-Fertilizationand Dialogue ......... 358 f. Form of Opinions .......................... 361 3. Factors Often Beyond the Control of States or Judges . 362 HeinOnline -- 107 Yale L.J. 274 1997-1998 1997] Supranational Adjudication a. Nature of Violations ........................ 362 b. Autonomous Domestic Institutions Committed to the Rule of Law and Responsive to Citizen Interests ........ 363 c. Cultural and Political Homogeneity. ............. 365 C. Summing Up the Committee's Performance Under the Checklist 365 V. A PRESCRIPTION FOR ENHANCING THE EFFECTIVENESS OF THE HUMAN RIGHTS COMMITFEE: CONVERGING WITH THE ECHR IN A GLOBAL COMMUNITY OF LAW. ...................... 366 A. Elements of a Community of Law ..................... 367 B. Building a Global Community of Law .................. 370 C. A Modest Proposal: Dialogue and Convergence Between the European Human Rights Tribunals and the Committee ...... 373 1. Thoughtful Convergence ........................ 373 2. A Bounded Frameworkfor Divergence .............. 376 a. Differences in the Rights Protected by the Two Treaties 377 b. Divergence Where Object and Purpose Differ ...... 378 i. Reference to Democratic Principles .......... 379 ii. Teleological Methods of Interpretation ........ 382 3. Divergence from a "European Gloss" on Human Rights .. 384 4. Divergence Where the Committee Improves on European Precedents .................................. 385 V I. CONCLUSION ...................................... 386 HeinOnline -- 107 Yale L.J. 275 1997-1998 The Yale Law Journal [Vol. 107: 273 Supranational adjudication in Europe is a remarkable and surprising success. Over the past few decades, it has become increasingly clear that the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) have convinced national governments, individual litigants, and the European public to endorse and participate in frequent and often high-stakes adjudication at a level above the nation-state. Both tribunals began their existence as creatures of classic public international law, established by treaties-the Treaty of Rome' and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) 2 -and perched atop national governments and national law with no direct relationship to either.3 Somehow, however, through a combination of perspicacity, foresight, and tenacity, both tribunals developed successful strategies to make their judgments as effective, for the most part, as national court rulings.4 The central question motivating this Article is whether the success of supranational adjudication in Europe can be translated or transplanted to other regions of the globe. Alleged obstacles are easy to find.5 The nations of Western Europe that form the core of the European Union and the Council of Europe are established liberal democracies with strong domestic traditions of the rule of law.6 They also share a common core of social, political, and legal values that European jurists themselves have linked to the effectiveness of the two tribunals.7 Their hopes for economic integration and their determination 1. TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY, Mar. 25, 1957, 298 U.N.T.S. II (1958) [hereinafter TREATY OF ROME]. 2. Nov. 4, 1950, 213 U.N.T.S. 222 [hereinafter Convention]. 3. Both European tribunals were originally established as "international" tribunals in the sense that they were created by intergovernmental agreements and charged with interpreting and applying those agreements as international law. The impact of their decisions on domestic law was intended to be a function of the actions of the states party to those agreements. 4. See infra Sections II.A-B (discussing compliance with ECJ and ECHR rulings). 5. For example, Jost Delbrueck argues: [Tlhe regional experience of today is of such a particular nature, made in more or less culturally and politically homogeneous regions, that it hardly could be taken as a model that could be easily transferred elsewhere and that could thereby possibly make a universal approach to the implementation of human rights obsolete. Jost Delbrueck, InternationalProtection of Human Rights and State Sovereignty, 57 IND. L.J. 567, 576 (1982). 6. See Michael W. Doyle, An InternationalLiberal Community, in RETHINKING AMERICA'S SECURITY: BEYOND COLD WAR TO NEW WORLD ORDER 307, 329-31 (Graham T. Allison & Gregory F. Treverton eds., 1992); Michael W. Doyle, Kant, Liberal Legacies, and Foreign Affairs, 12 PHIL. & PUB. AF. 205, 206-09 (1986) [hereinafter Doyle, ForeignAffairs]. Doyle defines liberal democracies as having four major characteristics: (1) protection of private property; (2) a market economy; (3) equality under the law and respect for human rights; and (4) a representative government deriving its authority from the consent ol individuals. See Doyle, Foreign Affairs, supra, at 206-09. 7. As Judge Rudolf Bernhardt of the ECHR states: The main reason for the effectiveness of the European Convention and the Court is the considerable measures of homogeneity among European states. The member states of the Council of Europe and the parties to the Convention have recognized that the interpretation and the application of the European Convention can contribute to uniform European standards.... [Tihere is a feeling among the member states that there exists a common European standard and that this standard should be further developed. HeinOnline -- 107 Yale L.J. 276 1997-1998 1997] Supranational Adjudication to safeguard
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