Kelemen 2001, Teksty - Politologia - Brema, Politik und Recht

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Comparative Political
Studies
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
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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
© 2001 Sage Publications
622
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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.
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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).
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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)
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