Karen J. Alter

Establishing the supremacy of European law : the making of an international rule of law in Europe

1. The making of an International Rule of Law in Europe 2. National Judicial Interests and the Process of Legal Integration in Europe 3. German Judicial Acceptance of European Law Supremacy 4. French Judicial Acceptance of European Law Supremacy 5. Winning Political Support: Why Did National Governments Accept a Judicial Revolution that Transferred Away National Sovereignty? 6. The Transformation of the European Legal System and the Rule of Law in Europe Bibliography Index

The Politics of International Regime Complexity

The increasing density of international regimes has contributed to the proliferation of overlap across agreements, conflicts among international obligations, and confusion regarding what international and bilateral obligations cover an issue. This symposium examines the consequences of this “international regime complexity” for subsequent politics. What analytical insights can be gained by thinking about any single agreement as being embedded in a larger web of international rules and regimes? Karen Alter and Sophie Meuniers introductory essay defines international regime complexity and identifies the mechanisms through which it may influence the politics of international cooperation. Short contributions analyze how international regime complexity affects politics in specific issue areas: trade (Christina Davis), linkages between human rights and trade (Emilie Hafner-Burton), intellectual property (Laurence Helfer), security politics (Stephanie Hofmann), refugee politics (Alexander Betts), and election monitoring (Judith Kelley). Daniel Drezner concludes by arguing that international regime complexity may well benefit the powerful more than others.

Judicial Politics in the European Community European Integration and the Pathbreaking Cassis de Dijon Decision

Was the European Court of Justice a key actor in the “relaunching” of European integration in the 1980s? This article examines the crucial political role that was played by the Court with its Cassis de Dijon judgment in the rejuvenation EC harmonization policy and the development of the Single European Act. The authors challenge the dominant view that the Courts legal decisions in themselves create policy consequences, or that legal verdicts reflect the views of dominant member states, so as to create focal points around which a policy consensus emerges. They argue, instead, that the Cassis verdict acted as a catalyst, provoking a political response by the Commission, which attempted to capitalize on the verdict to create a “new approach to harmonization.” This political entrepreneurship by the Commission triggered the mobilization of interest groups that lobbied their national governments for and against mutual recognition. Generalizing from the case, this article concludes that the Court performs three crucial roles in the EC policy-making process: opening political access to self-interested individuals, launching ideas into the policy-making arena, and provoking political responses through bold argumentation and unpopular verdicts.

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐a‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Courts declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules ke...

The European Union's Legal System and Domestic Policy: Spillover or Backlash?

Under what conditions do domestic actors use international legal mechanisms to influence domestic policy? Drawing on the European case, where legalization has progressed the furthest, I develop a generalizable framework for explaining variation in the use of the European Unions legal system by domestic actors to influence national policy. Four steps are involved in using the European legal process to pressure for policy change: (1) there must be a point of European law that creates legal standing and promotes the litigants objectives; (2) litigants must embrace this law, adopting a litigation strategy; (3) a national court must refer the case to the European Court of Justice or apply ECJ jurisprudence; and (4) domestic actors must follow through on the legal victory to pressure national governments. Different factors influence each step, creating cross-national and cross-issue variation in the influence of EU law on national policy. Raising a significant challenge to neofunctionalist theory, I argue that negative interactive effects across the four steps and backlash created by the success of integration can stop or even reverse the expansionary dynamic of the legal process. I conclude by exploring the generalizability of this framework to other international contexts.

Explaining variation in the use of European litigation strategies: European community law and British gender equality policy

Through the examination of one of the most successful cases of a European Community (EC) law litigation strategy, this article develops a general framework for understanding when and how the EC legal system will be successfully used by domestic groups to challenge national policy. The authors show how the European legal system actually shifted the domestic balance of power in favor of equality actors, allowing a previously weak domestic group to influence the United Kingdoms gender equality policy at the height of Conservative Party rule. Expanding beyond the British case, the article develops a series of hypotheses about when the EC legal tool is likely to be used by groups to influence national policy, hypotheses that could account for cross-national variation in the impact of European Court of Justice jurisprudence on domestic policy in areas outside of equality policy.

Private Litigants and the New International Courts

Scholars expect International Courts (ICs) with private access and compulsory jurisdiction to be more independent and effective. This article shows a trend of creating and using ICs with compulsory jurisdiction and private access, using as evidence the founding statutes and usage rates of 20 ICs created since 1945. Analyzing where and for what private actors are granted access to ICs, the author finds that what is driving the expansion of private access and compulsory jurisdiction is an attempt to extend the types of juridical checks found at the domestic level to the international governance level. Although this trend will likely lead to more rights claiming by private actors, limitations on the types of cases that can be raised combined with a lack of usage suggests that outside of Europe, private right claiming potentials have yet to be exploited.

The Global Spread of European Style International Courts

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 Europes 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.

Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community

Forty years ago, the small and underdeveloped nations on the mountainous western edge of South America formed a regional integration pact to promote economic growth, regulate foreign investment, and harmonize national laws. Overall, their enterprise has not turned out well. Riven by political schisms, economic shocks, and weak domestic legal and judicial systems, the five principal countries of the Andean Community—Bolivia, Colombia, Ecuador,Peru, and Venezuela— have failed to live up to their potential as South Americas second largest trading bloc. The member states have relaunched the Andean integration project and revised its policies on multiple occasions, with at best only mixed results. Not surprisingly, most commentators have ignored the Andean Community or dismissed it as a failure.

Resolving or Exacerbating Disputes? The WTO's New Dispute Resolution System

In 1995 the dispute resolution system of the WTO was transformed to make it more effective in enforcing WTO rules. Ironically, the improvements in the system have contributed directly to greater conflict in the WTO. How can improving a system to resolve disputes actually exacerbate conflict? This article identifies a number of conflict-enhancing consequences of the change in the dispute resolution mechanism. Conflict is not bad per se. Indeed, if the outcome of this conflict is that governments must better justify participation in the WTO, then conflict is good. But there is a danger that international courts are more likely than not to generate conflict, while the international legal and political system is less adept at weathering controversy and addressing valid public concerns. Left unaddressed, conflicts generated by international legal bodies can erode support for the international legal system and multilateral strategies in general. This article suggests solutions designed to build into internationally legalized processes political safety valves, greater political sensitivity, and improved accountability, as well as legitimacy enhancing devices. Demonstrated here in the case of the WTO, the analysis described applies to international legal systems generally.