Showing papers by "Karen J. Alter published in 2013"

A new international human rights court for west africa: the ecowas community court of justice

Abstract: The Community Court of Justice of the Economic Community of West African States (ECOWAS Court) is an increasingly active and bold adjudicator of human rights. Since acquiring jurisdiction over human rights complaints in 2005, the ECOWAS Court has issued numerous decisions condemning human rights violations by the member states of the Economic Community of West African States (Community). Among this Court’s path-breaking cases are judgments against Niger for condoning modern forms of slavery and against Nigeria for impeding the right to free basic education for all children. The ECOWAS Court also has broad access and standing rules that permit individuals and nongovernmental organizations (NGOs) to bypass national courts and file suits directly with the Court. Although the Court is generally careful in the proof that it requires of complainants and in the remedies that it demands of governments, it has not shied away from politically courageous decisions, such as rulings against the Gambia for the torture of journalists and against Nigeria for failing to regulate multinational companies that have degraded the environment of the oil-rich Niger Delta.

Legitimacy and Lawmaking: A Tale of Three International Courts

Abstract: This Article explores the relationship between the legitimacy of international courts (ICs) and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the Court of Justice of the European Union (CJEU), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The CJEU is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more cautious, but there is little to suggest that this caution has enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not shielded it from political opposition to its adjudication of clearly-established human rights. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this Article is to problematize that claim and to posit an alternative hypothesis — that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist.

Legitimacy and Lawmaking: A Tale of Three International Courts

Abstract: This Article explores the relationship between the legitimacy of international courts (ICs) and expansive judicial lawmaking. We compare lawmaking by three regional integration courts — the Court of Justice of the European Union (CJEU), the Andean Tribunal of Justice (ATJ), and the ECOWAS Community Court of Justice (ECCJ). These courts have similar jurisdictional grants and access rules, yet each has behaved in a strikingly different way when faced with opportunities to engage in expansive judicial lawmaking. The CJEU is the most activist, but its audacious legal doctrines have been assimilated as part of the court’s legitimate authority. The ATJ and ECOWAS have been more cautious, but there is little to suggest that this caution has enhanced the legitimacy of either court. The ATJ has avoided serious challenges from governments, but its rulings have had little political impact. Conversely, the ECCJ’s circumspection has not shielded it from political opposition to its adjudication of clearly-established human rights. This pattern is at odds with the oft-voiced conventional wisdom that expansive judicial lawmaking undermines judicial legitimacy. Our modest goal in this Article is to problematize that claim and to posit an alternative hypothesis — that ICs spark legitimacy challenges due to the domestic political effects of their decisions, regardless of whether those decisions are expansionist.

Mapping International Adjudicative Bodies, the Issues, and Players

Abstract: This is the first chapter of Romano C./Alter K./Shany Y. (eds.), The Oxford University Press Handbook of International Adjudication (2013). The primary goal of this introductory chapter is to document the institutional, legal, and empirical terrain that is the focus of the Handbook. It contains a quick digest for the rest of the volume, elucidating how the individual chapters connect and relate to aspects of international adjudication. The chapter begins by setting out definitional criteria and explaining key concepts, particularly what differentiates adjudicative bodies from diplomatic means and other non-binding procedures; judicial bodies from arbitral bodies; and international adjudicatory mechanisms from their domestic counterparts. The dozens of international adjudicative bodies currently existing are then arranged into two large groups: judicial bodies and arbitral bodies, and then they are divided into several sub-groups, according to similarities in structure or function. After laying down some key concepts and terms (Section I), the chapter puts forward a basic classification (Section II). It then presents the greatest challenges faced by contemporary international adjudication (Section III), the actors who participate in international adjudication and the main stakeholders (Section IV), and, finally, an overview of the main theoretical models applied to the study of international adjudication (Section V).

The New International Courts

Abstract: This is an empirical overview of the transformation of the international judiciary in the last 75 years, documenting the proliferation and increased usage of ICs in recent times, presenting a birds’-eye overview of the international judiciary today. It identifies a shift from "old-style" ICs, voluntary inter-state dispute resolution bodies. Starting in Europe, and spreading since the end of the Cold War, is a proliferation of more independent and active "new-style" international courts, ICs with compulsory jurisdiction and access for non-state actors to initiate litigation. These ICs have jurisdiction over international economic, human rights and mass atrocities criminal law, and delegation to ICs is more common in Europe, Latin America and Africa. The chapter shows how the creation, release of design-hobbles, and growing usage of international courts accelerated greatly at the end of the Cold War. The book includes another chapter that explains how two critical junctures -- World War II and the end of the Cold War -- contributed to building the international judiciary of today. At the end of the chapter, I have appended a table of context that includes abstracts of the book chapters and a case study index.