Symposium: Wrestling with the Long Shadow of European Transplants of International Courts in the Third World

[James Thuo Gathii is the Wing-Tat Lee Chair in International Law and Professor of Law at Loyola University Chicago School of Law.]

Transplanting International Courts is an important book. It invites us to expand and enrich our studies of international courts to those in the developing world. In doing so, Karen Alter and Laurence Helfer directly address what they call the “Europe is unique” thesis. This is the view that it is impossible to have effective international adjudication in “far more diverse and less hospitable environments” than Europe. (page 264) Yet, they do not overstate this point. After all, the Andean Tribunal of Justice has been effective in only one issue area, intellectual property rights. Unlike the bold, purposive and consequential decisions of the European Court of Justice, the decisions of the Andean Tribunal of Justice on intellectual property rights are more restrained, predicated on formalist reasoning and “highly repetitive, even formulaic.” (page 276) In so doing, the Andean Tribunal has avoided direct confrontation between the Tribunal and Andean governments whose political leaders have the last word on Andean law. (page 146)

So striking is the authority of the Andean Tribunal of Justice over intellectual property rights, Alter and Helfer tell us, that it has helped the Andean Community to hold-off American pharmaceutical companies that have sought more extensive intellectual property protections such as data exclusivity, a ban on ‘pipeline’ patents and second—use patents. In so doing, the Andean Tribunal of Justice has played a central role in preventing Andean states from defecting “from regional IP legislation and adopt strong IP protection standards.” (page 19) It has of course been helpful that Andean governments have for the most part had a common interest in a uniform policy for trademarks and patents. Further, Andean rules in these areas, unlike under other integration objectives, are detailed and precise. (pages 139-140). Andean domestic IP agencies and national courts benefitted from the Andean Tribunals rulings, which they accept to improve their decision-making and to insulate them from domestic politics. (page 127).

Alter and Helfer draw two key lessons from the Andean experience. First, that we should not assume that international courts will always seek to expansively construe their ‘authority and influence.’ Second, they argue that by “scrupulously adhering to their delegated powers,” international courts in ‘politically and legally inhospitable environments’ can help them survive long enough to gain constituencies who will make use of them. (page 16)

What then are the implications of these lessons in this rich study of the Andean Tribunal of Justice for the ‘effectiveness of international court more generally’? (page 18) Alter and Helfer argue that the Andean Tribunal’s experience may have more in common with newer international courts than with their European counterparts. (page 47) The Andean experience they argue, shows that “transplanting supranational laws and institutions is insufficient in itself to stimulate local demand for those laws and institutions.” (page 45) This is particularly so in developing country contexts where integration is shaped by significant turmoil in domestic politics.

I want to push the argument that Alter and Helfer make about the Andean Tribunal of Justice having more in common with international courts outside Europe than with those in Europe. In other words, there is an even more radical implication that emerges if Europe is dethroned as the point of reference for non-European international courts. Eurocentric analysis of international courts assumes that non-European international courts are reproductions of European courts with an adjustment here or there to ensure that they are a fit with local conditions. Such a view does not take seriously the agency of non-European actors. It assumes the role of these non-European actors is to simply adapt these European-style courts to their non-European contexts. From this mistaken view, when these non-European courts do not function like their European copies, they are declared failures.

I therefore read Alter and Helfer’s book as an invitation to scholars of non-European international courts not to treat their non-European contexts as merely contexts of reception, but as Diego Lopez Medina persuasively argues as contexts of production. From this perspective, we should not be surprised if what we see in these non-European international courts are, what from a Eurocentric perspective might look like unfaithful copies. Yet, to characterize these non-European courts and their decisions as misinterpretations or mis-readings, is to misunderstand them and their decisions. What seem as mis-readings and misinterpretations from a Eurocentric perspective, are rather the conscious and intentional outcomes of their non-European judges and litigants.

Let me give an example of what a Eurocentric perspective may regard as a misreading or misinterpretation by non-European international courts. This example comes from the East African Court of Justice in a case where the applicants sought to stop the government of Tanzania from building a road across the Serengeti, a UNESCO world heritage site. By way of a very brief background, although the East African Court of Justice was created to decide trade cases, it has redeployed itself to deciding human rights cases even though it does not have a treaty mandate to do so. Thus, when it was invited to decide a question relating to the environment, the government of Tanzania strenuously argued that it should not do so.

Once the First Instance Division decided it had jurisdiction, what it did next was striking. Basing its decision on a treaty provision that serves the equivalent role as the rule of systemic integration under Article 31(3)(c) of the Vienna Convention of the Law of Treaties, the Court concluded that East African Community treaties should not be interpreted in isolation of non-East African Community international environmental treaties. Thus, the Court brought on board the African Convention on Conservation of Nature and Natural Resources, the Rio Declaration, the Stockholm Declaration, and the U.N. Convention on Biodiversity. In so doing, the East African Court of Justice recognized environmental conservation must be seen in the broader economic, social and cultural context captured in this array of additional treaty regimes. This willingness to look beyond one regime is notable considering the sheer difficulty that other international judicial bodies such as those of the World Trade Organization, (WTO), have had in bringing non-WTO treaties as sources of WTO law. In so doing, the East African Court of Justice decided not to construe its jurisdictional remit narrowly as a specialist court within a single self-contained regime.

The Appellate Division of the East African Court of Justice confirmed that it was not improper for the First Instance Division to rely on non-East African Community treaties in its decision. A discussion of this case can quickly veer into considering whether the murky decision of the Appellate Division that did not lift the permanent injunction against Tanzania indicated that the Court feared backlash and non-compliance. That discussion has its utility. However, a choice to foreground a compliance analysis may come at the cost of pursuing the situational and localized circumstances that inform why such cases are brought to these courts in the first place.

For example, the environmentalists who brought the suit objecting to the building of the road through the Serengeti saw the Court as one venue in a multi-dimensional and multi-pronged strategy that involved other venues and pressure points. That multi-pronged strategy that has had its successes and challenges has continued long after the case ended. For these activists, the case was one part of a strategy of galvanizing an international alliance of conservationists to prevail upon the Tanzanian government. My point therefore is that studying non-European courts, and perhaps such courts elsewhere, requires us to put their users and their broader strategies at the center of our analysis.

Foregrounding compliance presupposes litigation is being pursued in these non-European courts because litigants see them as primary change agents. Such an assumption is based on the type of structural reform litigation in North America and Europe. It is not an assumption that those who use international courts in developing countries proceed from. As the Serengeti example noted above shows, whether or not the case is won, it becomes a focal point to galvanize, publicize and mobilize organizational support as well as fund-raising. When a case is lost, litigants use it to appeal to sympathetic individuals and groups by highlighting to the injustices they face. As such these non-European international courts are not independent actors isolated from other sites of political, social and legal contestation.

To conclude, I would emphasize the degree of unfaithful copies of European courts in the non-European world will vary. Further, as a recent study of the preference for non-litigious dispute settlement in the ASEAN investment context has persuasively argued, we should not assume that dispute settlement models that do not fit the European or western experience are flawed or indeed failures, but rather are independent and legitimate forms of legalization.

Alter and Helfer do in fact acknowledge that international courts in developing countries “deploy strategies that diverge from those of European tribunals in response to the distinctive legal and political contexts that these emerging courts face.” (page 274) I have argued that it is misleading to assume that cases filed in international courts in developing countries are primarily and narrowly targeted at legal reform, rather than to satisfy a range of other imperatives that activists are pursing. That is why Alter and Helfer’s conclusion that we “should look for evidence of judicial influence beyond case-specific compliance,” (page 277) is a very welcome one.