Toward a Theory of Effective Supranational Adjudication

Supranational adjudication in Europe is a remarkable and surprising success. Europe\u27s two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such supranational jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a community of law, a web of nominally apolitical relations among subnational and supranational legal actors. The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a checklist of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions\u27 effectiveness. After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly court-like. Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law

Toward a Theory of Effective Supranational Adjudication

Supranational adjudication in Europe is a remarkable and surprising success. Europe\u27s two supranational courts -- the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR) -- issue dozens of judgments each year with which defending national governments habitually comply in essentially the same manner as they would with domestic court rulings. These experiences stand in striking contrast to those of many international tribunals past and present. Can the European experience of supranational adjudication be transplanted beyond Europe? Professors Helfer and Slaughter argue that the effectiveness of the ECJ and the ECHR is linked to their power to hear claims brought by private parties directly against national governments or against other private parties. Such supranational jurisdiction has allowed the European courts to penetrate the surface of the state, to forge direct relationships not only with individual citizens but also with distinct government institutions such as national courts. Over time, this penetration and the deepening relationships between supranational jurists and domestic legal actors have led to the evolution of a community of law, a web of nominally apolitical relations among subnational and supranational legal actors. The simple provision of supranational jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a checklist of factors that enhance the effectiveness of supranational adjudication. They distinguish among those factors that are within the control of member states; those that are within the control of the judges themselves; and those that may be beyond the control of either states or judges. Isolating the factors in this way provides both a rough metric for evaluating the effectiveness of other supranational tribunals and a potential set of prescriptions for judges on those tribunals seeking to enhance their institutions\u27 effectiveness. After developing the checklist, Professors Helfer and Slaughter use it to analyze the United Nations Human Rights Committee (UNHRC). Although the UNHRC was established expressly as a committee of experts rather than a court, analysis of its recent practice reveals that it is becoming increasingly court-like. Moreover, within the constraints imposed by severely limited resources, UNHRC members are independently following many of the checklist prescriptions for increased effectiveness. The next step is for the organization to enter into a sustained dialogue with its European counterparts, harmonizing its decisions with theirs in some areas while consciously preserving its own distinctive jurisprudence in others. Structured and regular interaction between these tribunals would add additional voices to an emerging transjudicial conversation, potentially laying the foundation for a global community of law

Propaganda for War & International Human Rights Standards

Shortly after Russia’s illegal invasion of Ukraine in February 2022, the European Union (EU) began suspending Russian state-sponsored media outlets from broadcasting within the EU because they were spreading propaganda for war. The EU also required social media companies to remove user speech containing the banned broadcasts and prohibited search engines from displaying content from those outlets in search results. The EU’s General Court upheld the outlets’ suspension as consistent with both European human rights norms and the United Nations International Covenant on Civil and Political Rights (ICCPR), which contains a mandatory prohibition on propaganda for war in Article 20(1). The EU’s outright ban and the General Court’s decision have generated questions among governments, companies, and civil society about the meaning of ICCPR Article 20(1), a provision the international community has generally overlooked. This Essay unpacks the scope of Article 20(1)’s prohibition on war propaganda, providing an overview of existing interpretations and then proposing a way to reconcile the ICCPR’s ban on propaganda for war with the treaty’s otherwise broad protections for freedom of expression

Procedural \u3cem\u3eJus Cogens\u3c/em\u3e

Jus cogens are a species of supernorm in international law. They are universally binding and trump all contrary rules—such as treaties and customary international law. They are typically framed in terms of substantive prohibitions: no genocide, no slavery, no crimes against humanity, etc. This Article seeks to identify a procedural jus cogens; namely, the right to due process of law made up of notice, a hearing, and an impartial and independent decisionmaker. To do so, it draws from what are called “general principles of international law”; that is, principles common to legal systems around the world, which make up a source of international law. It argues that a comparative approach to these principles can reveal an empirically supported, objective underlying natural law right. In particular, by looking to rights states deem most important, hierarchically superior, and foundational to their legal systems as contained in their constitutions, this approach solves major seemingly intractable jurisprudential and practical dilemmas for the international law of jus cogens by providing an alternative to horizontal, consent-based positivistic law of treaties and custom.To make its argument it examines the 193 member states of the United Nations, plus Kosovo, the Republic of China (Taiwan), and the Vatican City (Holy See). Diligent research has revealed that virtually all states in the world secure the most basic requirements of due process: notice, a hearing, and an impartial and independent decisionmaker. More specifically, 189 states provide notice to the accused, 196 states provide for the right to a hearing, and 196 states provide for an impartial and independent decisionmaker. Moreover, the vast majority of these protections are constitutional. The right to notice is protected in 179 constitutions, the right to a hearing is protected in 193 constitutions, and the right to an impartial and independent decisionmaker is protected in 193 constitutions. This analysis easily satisfies the recent International Law Commission criteria that for a norm to qualify as jus cogens it must be accepted by “a very large majority of states . . . across regions, legal systems and cultures.”Discovering a procedural jus cogens would be revolutionary in some respects. A procedural jus cogens norm would expand the concept of jus cogens because such a norm would qualitatively differ from a substantive one since it is not merely a negative obligation on a state but imposes a positive duty to provide a right. Further, the Article’s argument holds powerful implications not just for international law but for domestic U.S. law as well. The Supreme Court long ago held that international law is part of our law, including the law of jus cogens, and mechanisms exist to enforce that law in U.S. courts

Universality Of Human Rights And Thedeath Penalty-The Approach Of The Human Rights Committee

The application of the death penalty has occupied a number of United Nations human rights treaty bodies, and in particular the Human Rights Committee established under article 28 of the International Covenant on Civil and Political Rights (hereinafter referred to as ICCPR)

Overlegalizing Human Rights: International Relations Theory and the Commonwealth Caribbean Backlash Against Human Rights Regimes

This article raises the intriguing claim that international law can be overlegalized. Overlegalization occurs where a treaty\u27s substantive rules or its review procedures are too constraining of sovereignty, causing governments to engage in acts of non-compliance or even to denounce the treaty. The concept of legalization and its potential excesses, although unfamiliar to many legal scholars, has begun to be explored by international relations theorists analyzing the effects of legal rules in changing state behavior. This article bridges the gap between international legal scholarship and international relations theory by exploring a recent case study of overlegalization. It seeks to understand why, in the late 1990s, three Commonwealth Caribbean governments denounced human rights treaties and withdrew from the jurisdiction of international tribunals. I refer to these events as the Caribbean backlash against human rights regimes. My study of this backlash has two objectives. The first is to show how overlegalizing human rights can lead even liberal democracies to reconsider their commitment to international institutions that protect those rights. The second objective is to assess three competing international relations theories that seek to explain the conditions under which states comply with their treaty commitments. To provide a more persuasive analysis of these issues, the article includes empirical data analyzing changes in the filing and review of international human rights petitions against Caribbean governments during the 1990s

‘I Will Control Your Mind’: The International Regulation of Brain-Hacking

In the near future, the use of neurotechnologies—like brain-computer interfaces and brain stimulation—could become widespread. It will not only be used to help persons with disabilities or illness, but also by members of the armed forces and in everyday life (e.g., for entertainment and gaming). However, recent studies suggested that it is possible to hack into neural devices to obtain information, inflict pain, induce mood change, or influence movements. This Article anticipates three scenarios which may be challenging in the future—i.e., brain hacking for the purpose of reading thoughts, remotely controlling someone, and inflicting pain or death—and assesses their compliance with international human rights law (i.e., the International Covenant on Civil and Political Rights and the European Convention on Human Rights) and international humanitarian law (Geneva Conventions III and IV, and the First Additional Protocol)