Courts Crossing Borders

Legal issues that have traditionally been treated as domestic are in-creasingly governed by transnational law and numerous obscure tri-bunals. This book acquaints students of law and politics with the largely unrecognized authority of transnational legal systems and the ways boundaries of national sovereignty are being eroded in the 21st century. The editors have skillfully organized their collection around issues dealing with both human rights and issues of trade and used a comparative approach to analyze the many court decisions, treaties, and legal agreements that affect national sovereignty. Included subject areas are: Courts and Regional Trade Agreements, Dispute Resolution under NAFTA, and Universal Criminal Jurisdiction.

Mary L. Volcansek is Dean of the AddRan College of Humanities and Social Sciences, and a professor of political science at Texas Christian University.John F. Stack, Jr. is a professor of political science and the Director of the Jack D. Gordon Institute for Public Policy.

Acknowledgments

xi

Chapter 1 Courts Crossing Borders, John F. Stack, Jr., Mary L. Volcansek

3

(8)

Chapter 2 Judicialization and Sovereignty, Mary L. Volcansek, John F. Stack, Jr.

11

(12)

Sovereignty

12

(3)

Judicialization of Transnational Politics

15

(2)

Transnational Courts

17

(6)

Chapter 3 Courts and Regional Trade Agreements, Mary L. Volcansek

23

(20)

Crossing Borders

24

(2)

Institutionalization

26

(3)

Rise of Dispute Settlement Systems

29

(4)

Cases of Economic Dispute Regulation

33

(6)

Courts, Institutionalization, and Trade

39

(4)

Chapter 4 Sovereignty in Europe: The European Court of Justice and the Creation of a European Political Community, Miguel Poiares Maduro

43

(20)

Sovereignty in Europe: Constitutionalization and Europeanization

44

(5)

Constitutionalization

44

(4)

Europeanization

48

(1)

Becoming Sovereign: How Was It Possible?

49

(5)

Competitive Sovereignty

54

(4)

The Limits of Judicial Constitutionalization

58

(5)

Judicial Preferences

59

(1)

The Consequences of Pluralism

59

(2)

The Nature of the Challenge to Sovereignty

61

(2)

Chapter 5 Natural, Economic, and Political Borders: Trade and Environmental Protection Before the European Court of Justice, Joseph Jupille

63

(22)

Nature, Economy, and Polity: The Complexity of Borders

64

(1)

Courts Crossing Borders in the European Union

65

(2)

Neofunctionalism

66

(1)

Intergovernmentalism

67

(1)

The Evidence

67

(16)

Aggregate Evidence

67

(6)

Doctrinal Analysis

73

(10)

Conclusion

83

(2)

Chapter 6 How Rights Evolve: The Case of Non-Discrimination in the European Court of Human Rights, Doris Marie Provine

85

(20)

The European Court of Human Rights

86

(2)

Judges on Rights

88

(3)

The Institutional Setting for European Human Rights

91

(4)

Tailoring Demand to the Court's Resources

95

(1)

The Parameters of Judicial Concern

95

(3)

How Article 14 Jurisprudence Grows

98

(4)

Conclusion

102

(3)

Chapter 7 Constructing Human Rights in the Americas: Institutional Development and Practice in the New World, John F. Stack, Jr.

105

(32)

Constructing a Human Rights Regime

106

(3)

American Hegemony and Cold War Anticommunism

109

(3)

The Inter-American Commission: Instrumental Adaptation and Strategic Bargaining

112

(4)

The Inter-American Court: Constructing Human Rights

116

(13)

Advisory Jurisdiction

118

(5)

Contentious Jurisdiction

123

(6)

"Promises to Keep": The Quest for Institutionalization and Habitualization in the Inter-American System

129

(8)

Chapter 8 Dispute Resolution under NAFTA and the Emergence of Transnational Quasi-Courts, David M. O'Brien

137

(22)

An Overview of NAFTA's Dispute Resolution System

139

(2)

Quasi-Courts and Dispute Resolution under Chapter 19 of NAFTA

141

(7)

Jurisdiction

142

(1)

Selection and Composition of Binational Panels

143

(1)

Dispute Resolution Process

144

(3)

Appeals: The Extraordinary Challenge Procedure

147

(1)

Disputes and Decisions under Chapter 19 of NAFTA

148

(9)

Conclusion

157

(2)

Chapter 9 Sovereignty, Transnational Constraints, and Universal Criminal Jurisdiction, Donald W. Jackson

159

(24)

Meanings of Sovereignty

160

(4)

Transnational Constraints: The British Experience

164

(4)

Universal Criminal Jurisdiction

168

(5)

Precedents from the Past Relative to Universal Jurisdiction

169

(4)

Contemporary Developments

173

(6)

Ad Hoc Tribunals

174

(1)

The Pinochet Case

174

(1)

The Hissène Habré Case

175

(1)

The Belgian Example

176

(2)

Prospects: The International Criminal Court

178

(1)

Conclusion: Sovereignty, Globalization, and the Princeton Principles

179

(4)

Chapter 10 Bringing Her Out of the Shadows: An Empirical Analysis of Sentences in Rape Cases before the International Criminal Tribunal for the Former Yugoslavia, Kimi King, James Meernick

183

(30)

International Gender Justice for All? Armed Conflict and Mass Rape

186

(6)

Conflict in the Former Yugoslavia: The Establishment of the ICTY Statute and Tribunal

192

(5)

Doing Justice: Theory, Data and Method

197

(14)

Dependent Variable: Sentence

199

(1)

Command and Control Power

200

(1)

The ICTY Articles and Rape

201

(3)

Total Number of Counts Charged

204

(1)

Discussion

204

(7)

Conclusion

211

(2)

Bibliography

213

(20)

List of Contributors

233

(4)

Table of Cases

237

(6)

Index

243

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Courts Crossing Borders

Summary

Author Biography

Table of Contents

Supplemental Materials