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Toward a Theory ofEffectiveSupranationalAdjudication Laurence R. HelferAnne-Marie Slaughter1997 год

Toward a Theory of Effective Supranational Adjudication
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Аннотация: Supranational adjudication in Europe is a remarkable and surprising success. Europe's two 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 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 jurists and domestic legal actors have led to the evolution of a of law, a web of nominally apolitical relations among subnational and legal actors.The simple provision of jurisdiction, however, is not a guarantee of effective adjudication. Drawing on the observations of scholars, practitioners, and judges, Professors Helfer and Slaughter develop a of factors that enhance the effectiveness of 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 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.
Год издания: 1997
Авторы: Laurence R. Helfer, Anne-Marie Slaughter
Издательство: The Yale Law Journal Company
Источник: The Yale Law Journal
Ключевые слова: International Arbitration and Investment Law, European and International Law Studies, European Criminal Justice and Data Protection
Другие ссылки: The Yale Law Journal (HTML)
bepress Legal Repository (Bepress (United States)) (PDF)
bepress Legal Repository (Bepress (United States)) (HTML)