Kelemen_2001.pdf

Comparative Political

Studies

http://cps.sagepub.com

The Limits of Judicial Power: Trade-Environment Disputes in the GATT/WTO

and the EU

R. DANIEL KELEMEN

Comparative Political Studies

2001; 34; 622

DOI: 10.1177/0010414001034006002

http://cps.sagepub.com/cgi/content/abstract/34/6/622

Published by:

http://www.sagepublications.com

Additional services and information for

Comparative Political Studies

can be found at:

Email Alerts:

http://cps.sagepub.com/cgi/alerts

Subscriptions:

http://cps.sagepub.com/subscriptions

Reprints:

http://www.sagepub.com/journalsReprints.nav

Permissions:

http://www.sagepub.com/journalsPermissions.nav

Citations

(this article cites 11 articles hosted on the

SAGE Journals Online and HighWire Press platforms):

http://cps.sagepub.com/cgi/content/abstract/34/6/622#BIBL

Downloaded from

http://cps.sagepub.com

at Staats-Und on April 24, 2007

The online version of this article can be found at:

COMPARATIVE POLITICAL STUDIES / August 2001

Kelemen / GATT/WTO AND EU TRADE-ENVIRONMENT DISPUTES

This article analyzes the politics of supranational dispute resolution, focusing on trade-environ-

ment disputes in the context of the European Union (EU) and General Agreement on Tariffs and

Trade/World Trade Organization (GATT/WTO). The author analyzes how the interaction of

political and legal pressures has influenced decision making by the European Court of Justice

(ECJ) and by GATT/WTO panels in trade-environment disputes.

THE LIMITS OF JUDICIAL POWER

Trade-Environment Disputes in

the GATT/WTO and the EU

R. DANIEL KELEMEN

Rutgers University

cerned about the impact that supranational institutions will have on

national sovereignty. In recent years, most notably at the 1999 WTO confer-

ence in Seattle, environmental and consumer advocates have expressed con-

cern that the dispute-resolution bodies associated with regional or global

trade institutions such as the GATT, the WTO, the EU, or NAFTA (North

American Free Trade Agreement) may strike down important domestic envi-

ronmental or consumer protection legislation. These critics pose the threat as

follows: Nameless, unaccountable international bureaucrats will strike down

duly enacted domestic laws in the name of free trade, ruling them to be pro-

tectionist nontariff barriers to trade.

This vision of all-powerful supranational courts overturning popular

national laws with impunity suggests that supranational courts make rulings

with little or no regard for the preferences of national governments. However,

a large body of research on the relationship between courts and political offi-

cials contravenes this view, suggesting instead that courts are strategic actors

AUTHOR’S NOTE: An earlier version of this article was presented at the International Studies

Association Convention, Washington, D.C., April 16-20, 1999.

COMPARATIVE POLITICAL STUDIES, Vol. 34 No. 6, August 2001 622-650

622

Downloaded from

http://cps.sagepub.com

at Staats-Und on April 24, 2007

C ritics of globalization from across the political spectrum are con-

Kelemen / GATT/WTO AND EU TRADE-ENVIRONMENT DISPUTES

623

that may adjust their jurisprudence in reaction to political pressures. Scholars

of American courts working from a “positive political theory” perspective

pioneered this approach (Eskridge & Ferejohn, 1994; Ferejohn, 1995;

Ferejohn & Weingast, 1992a, 1992b; McCubbins, Noll, & Weingast, 1995;

Spiller & Gely, 1992). Recently scholars have extended this approach to the

ECJ (Cooter & Drexel, 1994; Garrett & Weingast, 1993; Garrett, Kelemen, &

Schulz, 1998) and the WTO (Garrett & Smith, 1999).

These scholars’ arguments build on variations of the following logic:

Courts wish to maintain their legitimacy, a legitimacy founded on their status

as the authoritative and independent adjudicators of disputes concerning the

law. If elected officials frequently reject or overturn a court’s rulings, the

court’s status as the authoritative adjudicator of disputes is called into ques-

tion. Therefore courts will avoid making rulings that elected officials fre-

quently reject. However to maintain their reputation for independence, courts

must seek to make consistent rulings that uphold the law as established in

treaties, constitutions, legislation, or earlier case law. To maintain its legiti-

macy, a court must seek both to maintain legal consistency and avoid making

rulings that elected officials will reject.

The central aim of this article is to analyze how supranational courts

attempt to maintain their legitimacy in the face of these two sometimes-con-

flicting imperatives. In other words, to what extent do political pressures

influence the decision making of supranational courts? Under what condi-

tions should we expect supranational courts to bow to political pressures?

Under what conditions will they make rulings that go against the interests of

powerful states? What strategies do supranational courts use to mitigate the

political fallout from controversial rulings?

In the next section, building on a rationalist view of international institu-

tions (Milner, 1998), I derive two hypotheses concerning the politics of

supranational dispute resolution and present a framework for analyzing deci-

sion making by supranational courts. In the third and fourth sections, I assess

these hypotheses by tracing the dynamics of trade-environment dispute reso-

lution in the context of the GATT/WTO and the EU. I examine all the trade-

environment cases decided by the GATT/WTO through 1998 and by the ECJ

through 1997. By limiting the analysis to lines of cases that focus on trade-

environment conflicts, I can hold constant most of the legal principles at issue

in the disputes. Meanwhile, the power and interests of the parties involved

and the weight of precedents vary between individual cases. Although not

every case conforms to the expectations set out in the hypotheses, analysis of

the development of trade-environment case law in the GATT/WTO and the

EU generally supports the hypotheses.

Downloaded from

http://cps.sagepub.com

at Staats-Und on April 24, 2007

624

COMPARATIVE POLITICAL STUDIES / August 2001

THE LIMITS OF JUDICIAL POWER

All courts must take into account the political repercussions of their deci-

sions. In the extreme, a court whose jurisprudence grows too far out of step

with the preferences of powerful political actors may be abolished. Although

such a drastic reaction is highly unlikely, political opponents of a court may

react in more tempered ways, for instance, by ignoring, defying, or evading

court decisions or by proposing or adopting institutional reforms that weaken

a court’s position. 1 All such actions reduce a court’s legitimacy, as they

impugn its status as an authoritative resolver of disputes. Courts face a second

threat to their legitimacy. If a court bows to political pressure to avoid spark-

ing an act of political defiance, it may lose legitimacy as a neutral, independ-

ent arbiter of disputes. Considering these two sets of pressures suggests two

hypotheses regarding judicial decision making.

Politicized adjudication . When states reach an international agreement

and establish a supranational court to police compliance with and adjudicate

disputes concerning the agreement, they share a common interest in the

maintenance of the “rule of law” norm that the court’s rulings should be

obeyed (Garrett & Weingast, 1993). Although all states benefit from the exis-

tence of this “collective good,” they may face individual incentives to violate

and thus undermine the norm in specific cases. I assume that the more politi-

cally costly a particular court ruling is to a government, the more likely the

government will defy the ruling in some manner. 2

When states defy or ignore the judgments of a supranational court, they

undermine the court’s status as the authoritative voice of the law and resolver

of disputes. However, not all potential acts of defiance are equally threaten-

ing to a court’s legitimacy. The threat posed by a potential act of defiance is a

function of the number of defiant states, their economic and political power,

and the timing of the defiance. Ceteris paribus, an act of defiance by an eco-

nomically and politically powerful state poses a greater threat to a suprana-

tional court than does a similar act by a weaker state. However, when a dis-

gruntled state, even a very powerful one, is isolated, the threat that its

1. On the use of such tactics against the U.S. Supreme Court, see Gely and Spiller (1992),

Rosenberg (1992), and McCloskey (1960). On the European Court of Justice (ECJ), see Garrett,

Kelemen, and Schulz (1998).

2. I present this proposition as an assumption rather than a hypothesis because I will not test

it in the empirical section of the article. This hypothesis would be difficult to assess empirically

because we would be unlikely to observe cases on one range of the independent variable. As I

argue below, courts will most often exercise self-restraint and avoid making rulings that would

impose costs on states great enough to cause them to disobey the rulings. Also see Garrett and

Weingast (1993).

Downloaded from

http://cps.sagepub.com

at Staats-Und on April 24, 2007

Kelemen / GATT/WTO AND EU TRADE-ENVIRONMENT DISPUTES

625

defiance poses to a court’s legitimacy is likely to be limited because most sig-

nificant court-curbing measures require cooperation between states. As the

number of states that are likely to oppose a ruling increases, the threat posed

by the potential defiance increases. Finally the timing of the potential defi-

ance influences the effects of the first two factors. Specifically if a case is

adjudicated at a time when the supranational court is particularly vulnerable,

such as when the treaties on which it is based are under renegotiation, then the

threat posed by potential defiance is greater. Such occasions give disgruntled

states the greatest opportunity to retaliate against courts. Taking these factors

together, I derive a hypothesis concerning the impact of political pressures on

court rulings.

Hypothesis 1 (H1): The greater the political threat posed by a state’s or a group of

states’ potential defiance, the more likely the court is to adjust its jurisprudence

to suit the state’s or states’ preferred outcome.

Legal consistency . One central element in the legitimacy of a court is its

status as an independent arbiter and voice of the law (Burley & Mattli, 1993;

Garrett et al., 1998; Stone Sweet, 1999). To maintain its legitimacy as a neu-

tral adjudicator, a court must attempt to maintain legal consistency in its rul-

ings and avoid the appearance of succumbing to political pressure. The con-

straints imposed by the need to maintain legal consistency will be greatest

where treaty requirements, established case law, and general legal norms

point clearly in one direction. By contrast, where treaties or legal norms are

vague or where precedents are absent or contradictory, the desire to maintain

legal consistency imposes less of a constraint. More generally,

Hypothesis 2 (H2): The greater the clarity of treaty requirements, precedents, or

legal norms in support of a particular judgment, the greater the likelihood that

the court will make that judgment, regardless of political costs.

A framework for analysis . By combining these two hypotheses, I generate

a framework with which to analyze likely rulings by supranational courts in

trade-environment disputes. Trade-environment disputes typically follow a

similar pattern: One or more plaintiffs bring a case before a supranational

court arguing that an environmental measure maintained by a state (the

defendant) is an illegal nontariff barrier to trade and should be struck down.

The defendant argues that its environmental measure does not constitute a

nontariff barrier in violation of the relevant trade law and should be allowed

to remain in place. The supranational court will consider both political (H1)

Downloaded from

http://cps.sagepub.com

at Staats-Und on April 24, 2007

Plik z chomika:

Inne pliki z tego folderu:

Inne foldery tego chomika: