Stone Sweet and Brunell on Trustee Courts and Evolution of International Regimes

Trustee Courts and the Evolution of International Regimes: The Politics of Majoritarian Activism in the Echr, the EU, and the WTO

Alec Stone Sweet

Yale University - Yale Law School and Yale Political Science

Thomas L. Brunell

University of Texas at Dallas - Department of Political Science

January 2012

Abstract:     
The paper focuses on the sources and consequences of judicial power in three international regimes: the European Union, the European Convention on Human Rights, and the World Trade Organization. The courts of these regimes are trustee courts, operating in an environment of judicial supremacy with respect to states. After elaborating a theory of trusteeship, we show that state non-compliance activates, rather than paralyzes, these courts; that the threat of override is not credible and thus cannot constrain judicial lawmaking; and that courts have used their trusteeship status to enhance the effectiveness of their respective legal systems. In each regime, we examined how judges have adjudicated their most politically controversial set of cases, those involving state claims to exemptions from treaty obligations for measures that are “necessary” to achieve a specified public interest. Although there is variation among cases, we find that each court has engaged in a strategy of “majoritarian activism,” producing law that reflects a high degree of state consensus but which would not be adopted by states under unanimity decision-rules. Majoritarian activism helps these courts develop the law in a progressive manner, to mitigate potential legitimacy problems, and to render efforts at curbing the growth of their authority improbable or ineffective.

Number of Pages in PDF File: 41

Keywords: trusteeship, international courts, ECJ, ECHR, WTO, compliance, majoritarian activism

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024889