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Toward a Theory of Effective Supranational Adjudication
Laurence R. Helfer and Anne-Marie Slaughter
Supranational adjudication in Europe is a remarkable and surprising
success. Europe's 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' 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.
Index of Back Issues
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