The Global Spread of European Style International Courts

Abstract

Europe created the model of embedded international courts (ICs) where domestic judges work with international judges to interpret and apply international legal rules that are also part of national legal orders. This model has now diffused around the world. This article documents the spread of European style ICs: there are now 11 operational copies of the European Court of Justice (ECJ), and a number of ICs that do not copy the ECJ but use Europe's embedded approach to international law. After documenting the spread of European style ICs, the article then explains how two regions chose European style ICs, yet varied from the ECJ model.

Acknowledgements

Thanks to Tanja Börzel, Tobias Lenz, Diana Panke, Gustav Kalm, Thomas Risse, Cesare Romano and Osvaldo Saldias for comments on an earlier version of this paper, and to the Kolleg-Forschergruppe ‘The Transformative Power of Europe’ for the inspiration and guidance to think more systematically about Europe's contribution to the spread of international courts. Thanks to Northwestern University Research Grants for research assistance and field work support. The case studies on the Organization for the Harmonization of Business Law (OHADA) and the Economic Community of West African States (ECOWAS) build from interviews with creators and users of the two systems. Gustav Kalm, Jean Allain Penda and Claire Dickerson helped with the OHADA research. The ECOWAS case study draws from collaborative research with Laurence Helfer and Jacqueline McAllister.

Notes

1. The GATT system required state parties to consent for a case to proceed and before any panel finding would be made binding, and in the 1970s Europe and the United States were blocking most cases from proceeding (Hudec 1993: 29–42).

2. Treaties for the African Court of Justice, the Economic Community of Central African States Community Court, and the Court for the African Maghreb Union await state ratification. There are shelved and outstanding proposals for ECJ style courts for the Central American Common Market, the Commonwealth of Independent States and the Mercosur system.

3. It is not clear that an ‘obligation’ to refer cases makes much of a difference either way, as national judges are able to generate reasons not to refer cases.

4. The counting is conservative; I exclude staff disputes and omit interim rulings. GATT/WTO includes panel rulings but not appellate body rulings.

5. For example, the EU provides in-kind consultants, sponsors conferences and exchanges among judges, subsidises projects to support fledgling regional legal systems such as web pages and outreach for regional ICs.

6. Benin, Burkina Faso, Ivory Coast, Guinea, Mali, Niger, Nigeria and Senegal are members of OHADA, the West African Economic and Monetary Community and the Economic Community of West African States. Cameroon, Central African Republic, Republic of Congo, Equatorial Guinea and Gabon are members of both OHADA and the Central African Monetary Community.

7. The reforms created a Council of Ministers that can adopt and amend Uniform Acts and oversee the operation of the OHADA Secretariat and Court. The Permanent Secretariat manages the legal affairs and accounting, and it works with the Council of Ministers to propose new areas of business law harmonisation and to draft new laws.

8. Olajide Afolabi v. Federal Republic of Nigeria, ECW/CCJ/APP/01/03 (judgment of 27 April 2004) at para. 56.

9. See ‘ECOWAS Court and the Promise of the Local Remedies Rule’, a Human Rights Brief by the Center for Human Rights and Humanitarian Law, available at http://hrbrief.org/2009/11/ecowas-court-and-the-promise-of-the-local-remedies-rule/(accessed 14 June 2011).