"Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute"

The decade long trans-Atlantic banana dispute was not a traditional trade conflict stemming from antagonistic producers’ interests. Instead, this article argues that the banana dispute is one of the most complex illustrations of the legal and political difficulties created by the nesting and overlapping of international institutions and commitments. The contested Europe-wide banana policy was an artifact of nesting--the fruit of efforts to reconcile the single market with Lomé obligations which then ran afoul of WTO rules. Using counter-factual analysis, this article explores how the nesting of international commitments contributed to creating the dispute, provided forum shopping opportunities which themselves complicated the options of decisionmakers, and hindered resolution of what would otherwise be a pretty straightforward trade dispute. We then draw out implications from this case for the EU, an institution increasingly nested within multilateral mechanisms, and for the issue of the nesting of international institutions in general

The Andean Tribunal of Justice and Its Interlocutors: Understanding Preliminary Reference Patterns in the Andean Community

In the European Union, national courts have been key intermediaries in helping to bolster and expand the authority of the European Court of Justice through its preliminary reference mechanism. This article analyzes the role of national judges in the Andean Community, a regional legal system whose judicial institution - the Andean Tribunal of Justice (ATJ) - was modeled directly on its European predecessor. Our analysis is based on an original coding of every publically available national court referral to the ATJ from 1987 to 2007 and interviews with over forty participants in the Andean legal system. We find that the relationship between the ATJ and national judges differs significantly from the relationship between the ECJ and its domestic judicial colleagues. As in Europe, references from national judges account for the vast majority of cases on the ATJ\u27s docket. But unlike in Europe, national courts are mostly passive intermediaries. Our coding reveals that national judges do not pose provocative questions to the ATJ, and that there is significant cross-national variation in referral patterns. Interviews corroborate what the data suggests: national judges have a circumscribed understanding of what Andean law requires of them. More than 90% of references involve technical issues of Andean intellectual property (IP) law and the registration decisions of domestic IP administrative agencies. National judges have embraced the ATJ\u27s active role in IP disputes because of the support of these agencies, which seek the Tribunal\u27s guidance to interpret vague areas of Andean law. Outside the area of IP, national judges are far more reluctant, contributing to the limited penetration of Andean law into national legal orders. We conclude by comparing the role of national judges in Europe to their role in the Andean context, extracting broader insights about the role of national judges in building international rules of law

The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America

This chapter is a contribution to Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America, Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry to circumvent the flexibilities in regional IP rules. Part III considers the broader implications of the Andean experience for access to medicines in Latin America, drawing on examples from the national case studies in this volume

The Influence of the Andean Intellectual Property Regime on Access to Medicines in Latin America

This chapter is a contribution to Balancing Wealth and Health: Global Administrative Law and the Battle over Intellectual Property and Access to Medicines in Latin America, Rochelle Dreyfuss & César Rodríguez-Garavito, eds. Part I of the chapter explains how the repeated interactions between the Andean Tribunal of Justice (ATJ) and domestic IP agencies in the Andean Community helped to build an effective IP rule of law and to solidify pro-consumer interpretations of regional patent and trademark rules. Part II documents how ATJ judges and agency officials enabled Andean governments to resist pressure from the United States and its pharmaceutical industry to circumvent the flexibilities in regional IP rules. Part III considers the broader implications of the Andean experience for access to medicines in Latin America, drawing on examples from the national case studies in this volume

The Multiple Roles of International Courts and Tribunals: Enforcement, Dispute Settlement, Constitutional and Administrative Review

This chapter is part of an upcoming interdisciplinary volume on international law and politics. The chapter defines four judicial roles states have delegated to international courts (ICs) and documents the delegation of dispute settlement, administrative review, enforcement and constitutional review jurisdiction to ICs based on a coding of legal instruments defining the jurisdiction of 25 ICs. I show how the design of ICs varies by judicial role and argue that the delegation of multiple roles to ICs helps explain the shift in IC design to include compulsory jurisdiction and access for nonstate actors to initiate litigation. I am interested in the multiple roles ICs play because they allow us to appreciate the many different contributions ICs make to international politics. ICs do oversee state compliance with international agreements, but this is not all they do. Finally, I explain the relevance of this analysis for two prevalent debates regarding ICs; 1) whether we should conceive of ICs as Agents or Trustees and 2) whether compulsory jurisdiction and private litigant access for ICs inherently features undermine national sovereignty

The Global Spread of European Style International Courts

Europe created the model of embedded international courts (IC), 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 eleven operational copies of the European Court of Justice (ECJ), three copies of the European Court of Human Rights, and a handful of additional ICs that use Europe\u27s 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

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional economic rules. In addition to explaining the ECCJ’s striking transformation, the article makes several other contributions. It illustrates how an existing international institution can be redeployed for new purposes; it highlights the contributions of civil society, supranational officials, and ECOWAS judges to expanding the Court’s mandate; it analyzes the ECCJ’s distinctive jurisdiction and access rules; and it shows how the ECCJ has survived challenges to its authority. Our analysis is based on original field research in Nigeria, including more than two-dozen interviews with judges, government officials, attorneys, and NGOs. We also draw upon the first-ever coding of all ECCJ decisions through 2010. The ECCJ’s transformation is also theoretically significant. The article’s final section and conclusion reassesses theories of regional integration, institutional change, and transnational legal mobilization in light of the ECCJ’s experience to demonstrate the implications of our findings for international institutions beyond West Africa

A New International Human Rights Court for West Africa: The ECOWAS Community Court of Justice

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional economic rules. In addition to explaining the ECCJ’s striking transformation, the article makes several other contributions. It illustrates how an existing international institution can be redeployed for new purposes; it highlights the contributions of civil society, supranational officials, and ECOWAS judges to expanding the Court’s mandate; it analyzes the ECCJ’s distinctive jurisdiction and access rules; and it shows how the ECCJ has survived challenges to its authority. Our analysis is based on original field research in Nigeria, including more than two-dozen interviews with judges, government officials, attorneys, and NGOs. We also draw upon the first-ever coding of all ECCJ decisions through 2010. The ECCJ’s transformation is also theoretically significant. The article’s final section and conclusion reassesses theories of regional integration, institutional change, and transnational legal mobilization in light of the ECCJ’s experience to demonstrate the implications of our findings for international institutions beyond West Africa