Courts Crossing Borders
Europeans have suspected for some time that subtle inroads into national prerogatives are consequences of transnational organizations and their courts.The successive treaties and the economic, legal, and political frameworks that have given rise to the European Union (EU) over the past fifty years have conceived an approach to state building that has incorporated the eighteenth century nation-state into a supranational structure that has stimulated economic growth. In so doing, the power of courts above the level of states has been dramatically intensified as the various iterations of the European Union have sought to expand economic opportunities and integrate aspects of political processes. Courts have played a seminal role in blurring lines of sovereignty among states in order to implement the economic and policy objectives of Europe's collective interests. The European Court of Justice of the EU has elevated the treaties to the stature of a constitution, facilitated free movement of workers and capital among member states, and annulled national barriers to the free movement of goods and services.
Americans have, however, been smugly less concerned about potential incursions into their national sovereignty, by courts or any other transnational bodies. Yet, as the New York Times noted, a phenomenon similar to what has happened in Europe is occurring on this side of the Atlantic. "NAFTA's Powerful Little Secret" detailed the ways in which obscure tribunals, impaneled to enforce the rules of the North American Free Trade Agreement, are overriding national laws. More recently, and more powerfully, Chief Justice Margaret Marshall of the Massachusetts high court was "surprised,” according to an article in the New York Times, to discover that a case her court had decided and that the U.S. Supreme Court had declined to hear was under review by a North American Free Trade Agreement (NAFTA) court. Less than two weeks after reporting about the Massachusetts case, the New York Times noted that a dispute settlement panel of the World Trade Organization (WTO) had ruled against the U.S. practice of subsidizing cotton producers, a ruling that, if upheld by the higher WTO judicial body, would likely end or seriously change the current model of cotton production in the United States.
Carolina Academic Press
International courts, Judge made law, Sovereignty
Courts | Law
John F. Stack, Jr. and Mary L. Volcansek, Courts Crossing Borders, in COURTS CROSSING BORDERS : BLURRING THE LINES OF SOVEREIGNTY, (Mary L. Volcansek, John F. Stack, Jr., eds., Carolina Academic Press, Durham, NC, 2005).