Foreword: Globalization and the Judiciary

Transcription

1 Foreword: Globalization and the Judiciary CARL BAUDENBACHER On September 4 and 5, 2003, the Texas International Law Journal hosted, for the second time, an international symposium on Globalization and the Judiciary. 1 The goal of the conference was again to address issues of the judicialization of international law and judicial globalization. The symposium contributors consisted of High Court justices from the World Trade Organization (WTO) and Europe, the former Solicitor General of Hong Kong, and outstanding professors from the University of Paris I as well as from The University of Texas School of Law. The special feature of the Texas symposium was once more to bring together those who make the decisions with those who query them. The success of the event has prompted the Texas International Law Journal to announce a third symposium on Globalization and the Judiciary on September 9 and 10, The first two articles, written by law professors from The University of Texas, take up the fervid debate of whether or not the U.S. Supreme Court should commit itself to comparative constitutional law, namely in discussing and citing judgments of foreign courts. This debate has been fueled by Justice Scalia s dissent in the Lawrence v. Texas judgment of June 2003, a statement that has not been appreciated in Europe, to say the least. Whereas Justice Kennedy, delivering the majority opinion of the Court in this case, cited judgments by the European Court of Human Rights (ECHR), Scalia rebuffed that with the statement that the discussion of these foreign views... is... meaningless dicta and this Court... should not impose foreign moods, fads, or fashions on Americans. 2 In a post-modernist essay entitled Looking Abroad When Interpreting the U.S. Constitutions: Some Reflections, 3 Professor Sanford Levinson makes no secret of his view that he is no fan of Justice Scalia and finds his militant provincialism embarrassing. 4 In fact, Scalia expressed this attitude toward comparative analysis on earlier occasions. In Printz v. United States, he wrote for the Court: We think such comparative analysis inappropriate to the task of interpreting a constitution, though it was of course quite relevant to the task of writing one. 5 And dissenting in Atkins v. Virginia he stated: Equally irrelevant are the practices of the world community, whose notions of justice are (thankfully) not always those of our people. 6 Despite rejecting a hard-core originalist s refusal to take into account experiences since the days of Madison and Hamilton, Levinson concedes not only that domestic dominant sensibility is relevant for the judge. He also subscribes to Scalia s view that the practices of foreign nations will not be of help for American judges, since their notions of justice are different. This, according to Levinson, is due to the separate identity of nations, which renders it impossible to engage in an objective assessment of Prof. Dr., President of the Court of Justice of the European Free Trade Association (EFTA); Professor, the University of St. Gallen; Visiting Professor, The University of Texas School of Law. 1. The speeches presented at the first symposium were published in Volume 38:3 of the Texas International Law Journal in Lawrence v. Texas, 123 S. Ct. 2472, (June 26, 2003) (Scalia, J., dissenting) (citing Foster v. Florida, 537 U.S. 990, 990 n.* (2002) (Thomas, J., concurring in denial of certiorari)). 3. Sanford Levinson, Looking Abroad When Interpreting the U.S. Constitution: Some Reflections, 39 TEX. INT L L.J. 353 (2004). 4. Id. at Printz v. United States, 521 U.S. 898, 921 n.11 (1997). 6. Atkins v. Virginia, 536 U.S. 304, 327 (2002) (Scalia, J., dissenting). 347

2 348 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:347 foreign legal arguments. In concluding, however, he recognizes that abstaining from comparative analysis cannot be the answer. In his response to both Scalia s legal aphorisms and Levinson s article, Professor Richard Markovits in Learning from the Foreigners: A Response to Justice Scalia s and Professor Levinson s Professional Moral Parochialism 7 reveals a far more liberal attitude toward the issue in question. In doing so, he focuses on whether discussions of foreign countries moral-rights commitments have anything to contribute to the analysis of American moral-rights-related constitutional rights. His appraisal is based on the assumption that concrete moral rights (on which constitutional rights are grounded) exist because of a national consensus. Markovits objection to the Scalia/Levinson approach is essentially founded on his disapproval of the view that simplistic Gallup-type polls can reveal such a national consensus. He suggests replacing it through a sophisticated highlyqualified conventionalist approach, by which the basic moral commitment of societies (as the basis for constitutional-rights conclusions) can be paraphrased more adequately. But even if the Scalia/Levinson premises were right, Markovits argues, to take account of foreign legal discussions can contribute to the finding of justice within the United States. In his view, they often will contain an analysis of the concrete implications of the abstract moral principles to which they assume their society is committed. Knowledge and consideration of the normative discussion on these principles will benefit judges in particular when it comes to analyzing moral-rights related constitutional rights in multiple ways. This may even be true in cases where the respective foreign society does not share the United States basic moral commitment. Changing perspective to a European s view, I have posed myself the question: Can the European Model Be Exported to Other Parts of the World? 8 The notion of judicialization refers to an ongoing process of replacing the diplomatic structure of international dispute settlement with judicial proceedings. Europe has to be considered an avant-garde in this process. With the ECHR, located in Strasbourg, the Court of Justice of the European Communities (ECJ), its Court of First Instance (CFI), and the Court of Justice of the European Free Trade Association (EFTA Court), all having their seat in Luxembourg, it offers no less than four judicial bodies that play a preeminent role in their respective legal orders and beyond. Among the European courts, a subdivision is to be made between the Strasbourg court on the one side and the Luxembourg courts on the other. Along this line, an examination of essential features, such as appointment of judges, methods of interpretation, access to justice, and effect in the legal orders of Member States, leads to the establishment of a scale on which the Community courts exhibit the highest degree of judicialization. The ECJ and the CFI are to be considered the role model, not only within Europe, but also from a global perspective. Their little sister court, the EFTA Court, comes in second, followed by the ECHR, which rules on a legal order without direct effect in the Contracting Parties of the Human Rights Convention. As far as the question of whether the European judicial model can serve as an example in other regions is concerned, such developments have already happened to a certain extent in the case of the Tribunal of the Andean Community, but also with the Inter-American Court of Human Rights. It also seems like the evolving African judiciary will very closely stick to the European archetype. In terms of global trade, the creation of a court-like system in the WTO is to be mentioned. The latter s dispute settlement system can be regarded as one of the most impressive recent instances of the judicialization movement, due to the abolition of the consensus principle 7. Richard Markovits, Learning from the Foreigners: A Response to Justice Scalia s and Professor Levinson s Professional Moral Parochialism, 39 TEX. INT L L.J. 367 (2004). 8. Carl Baudenbacher, Judicialization: Can the European Model Be Exported to Other Parts of the World?, 39 TEX. INT L L.J. 381 (2004).

3 2004] FOREWORD 349 and the creation of the Appellate Body in particular. However, there remain major differences between the European and the WTO legal orders, the most significant being the lack of direct effect and the shortcomings in access to justice for private parties under the WTO rules. Lingering within the field of WTO, Professor James Bacchus, Chairman of the WTO Appellate Body, is maybe the best-suited person to provide an insider s view. This time, he was not carried off the conference on a stretcher, like he was during his last visit to Austin, Texas, as an eleven-year old boy participating in a march. In his article Lone Star: The Historic Role of the WTO, 9 Bacchus describes his vision of a WTO as a leader on the march towards global freedom and an international rule of law as the finishing line. This is to be achieved by means of lowering barriers to worldwide trade, and thereby enabling a maximum of choices for the individual and increasing global economic growth. One essential feature of this process consists of resolving international trade disputes by an independent WTO judiciary, guided by the rule of law and not the rule of power. The uniqueness of the dispute settlement system as well as its success accrues from two main elements, compulsory jurisdiction and the enforceability of judgments. The fact that WTO dispute settlement is, due to the role of the Dispute Settlement Body, technically only a quasi-judicial system, affects neither its independence nor its strict and exclusive adherence to legal considerations. In a global context, the establishment of the Appellate Body as part of the proliferation of (specialized) international and regional courts does not, according to its Chairman, pose a threat to a homogeneous interpretation of fundamental principles of international law. Quite to the contrary, all those courts and tribunals will contribute in their respective fields to the victory of freedom and the international rule of law. This is all the more important as international law is a primitive legal system, or, as Bacchus puts it, out on the legal frontier. In times of aggressive unilateralism, a leading role of the WTO and its dispute settlement system in this global wild west is indispensable. Bacchus appeals in particular to his home country, the United States, to overcome the temptation to be a lone star in the world and to share the doom of Davy Crockett as last man standing in the Alamo. Far from being isolationist, the German Federal Supreme Court has always engaged in a global judicial communication. Transcending his own court s contribution, Justice Professor Dr. Joachim Bornkamm presents in his article, The German Supreme Court: An Actor in the Global Conversation of High Courts, 10 a five-step scale of cooperation. The first step marks cooperation among judges whose respective legal systems have no or only few common grounds. The common link consists only in the necessity to find an appropriate solution for a given problem that may already have occurred in other parts of the globe. However, taking into account solutions from foreign jurisdictions may not only enhance the handling of the individual case, but may also lead to fertilization of their own legal system. The second step, according to Bornkamm, embraces legal systems with a common background. Judgments delivered in one system can be considered persuasive, although not binding authority in another. Within this bracket, the German Federal Supreme Court, for example, serves as an influential authority for the supreme courts in the German-speaking countries, Austria and Switzerland, but has to a minor degree also referred to judgments stemming from those countries as well as to the U.S. Supreme Court. The third level of Bornkamm s five-step scale combines fields where the law is internationally harmonized to a large degree in substance, without providing for a central 9. James Bacchus, Lone Star: The Historic Role of the WTO, 39 TEX. INT L L.J. 401 (2004). 10. Joachim Bornkamm, The German Supreme Court: An Actor in the Global Conversation of High Courts, 39 TEX. INT L L.J. 415 (2004).

4 350 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:347 legal authority. Examples include the Berne Copyright Convention and the European Patent Convention. Contrary thereto, on the fourth level, there does exist such judicial surveillance. The best-known example of this kind of judicial cooperation is arguably the WTO with its dispute settlement mechanism. Finally, Bornkamm identifies the system established under the EC Treaty as top of the ladder, due to direct effect and supremacy of the ever-increasing body of European law within the Member States on the one side and the role of the ECJ on the other. The latter enters into a formalized judicial dialogue with the national courts under the preliminary rulings procedure, which nevertheless leaves great discretion especially for national high courts. In concluding, Bornkamm points to the desirability of an information system based on a judgment database, through which judges could retrieve pertinent decisions from foreign jurisdictions. Proposing English as a second language in which the judgments had to be translated, Bornkamm refers to one of the major obstacles for an effective judicial dialogue, namely the language differences. Two further contributions, again written from a European perspective, focus on specific problems of what is called the international dialogue among judges. Professor Dr. Horatia Muir Watt from the University of Paris I, in reporting Experiences from Europe: Legal Diversity and the Internal Market, 11 chooses another exemplary topic to illustrate the challenges of European judicialization and harmonization, namely in the field of contract law. Brought on the agenda (again) by way of an Action Plan issued by the European Commission, the discussion circles around legal diversity within Europe versus the facilitation of cross-border transactions by creating the infamous level playing field. The topic actually provides another example for, as Muir Watt puts it, cultural obstacles to the convergence of common law and civil law systems. 12 It can also be seen with a perspective to federalism as defining both the European and the American political and legal systems. In Europe, the issue of safeguarding the States competences against the Community s ambition to regulate in an all-embracing manner is discussed under the heading of subsidiarity. Muir Watt draws the analogy between both the Community s powers to complete the internal market and those of the U.S. Congress to regulate interstate commerce, and the ECJ s use of negative integration and U.S. dormant commerce clause jurisprudence. In concluding, Muir Watt argues in favor of maintaining diversity and thereby interjurisdictional competition, which actually poses no threat to judicialization but constitutes a precondition for what may become a fruitful judicial dialogue. Sir Christopher Bellamy, President of the U.K. Competition Appeal Tribunal and former Judge of the Court of First Instance of the European Communities, demonstrates in his article, Focusing on the European Perspective of Judicial Dialogue: Issues in the Area of Competition Law, 13 that antitrust law and caselaw featured trans-border elements and developed in international accord already in their early years. In particular, the crossfertilization between the United States and Europe has left a deep impact mainly on the latter s antitrust system. Today, we face a situation where almost every nation affords a competition enforcement regime with a major role to be played by the judiciary. This role is even on the increase in the context of the Commission s so-called modernization of competition policy package. Sir Christopher illustrates this development instancing U.K. competition law, which only recently has undergone almost revolutionary change. He accredits this to the influence of the European model, which is remarkable insofar as it proves that countries with a common law tradition also can benefit from it. On the other side, U.K. competition law is obviously under the influence of the U.S. system. This 11. Horatia Muir Watt, Experiences from Europe: Legal Diversity and Internal Market, 39 TEX. INT L L.J. 429 (2004). 12. Id. at Sir Christopher Bellamy, Focusing on the European Perspective of Judicial Dialogue: Issues in the Area of Competition Law, 39 TEX. INT L L.J. 461 (2004).

5 2004] FOREWORD 351 interface position of Great Britain has recently left its traces in the revised European Merger Control Regulation but also in the establishment of an antitrust court of a kind that had never existed before in Great Britain. Sir Christopher himself has experienced the advantages of judicialization that led, in the case of the U.K. Competition Appeal Tribunal, to a result of the best of both worlds from continental and common law. This special issue of the Texas International Law Journal closes with a view from the other side of the globe, with the revised transcript of former Solicitor General of Hong Kong Daniel Fung s speech on Constitutional Reform in China: The Case of Hong Kong. 14 Contrary to what has been predicted when Hong Kong was given back to China by the United Kingdom, the former Crown colony s economy flourishes due to political liberalism and the rule of law. Fung reports on recent amendments to the Chinese constitution, singling out the issues of national security legislation, the protection of private property rights, and the judicial system. In the context of the conference topic, the reconstruction of the judiciary is of major interest. The discrepancies could not have been greater: whereas Hong Kong s lawyers were integrated in the worldwide network of common law, the People s Republic under Mao regarded them as bloodsuckers and sent them to the countryside. China of today is in the process of establishing the rule of law, for instance, by making standard national justice examinations mandatory. Hong Kong, for its part, remains an independent limb of the common law family, which Fung calls Britain s greatest gift. Its courts apparently have a record for taking account of judgments from foreign supreme courts, including not only common law courts, but also the ECHR. Moreover, a seat in the Hong Kong Court of Final Appeal is always filled on an ad hoc basis by, inter alia, judges from other jurisdictions high courts. Would it not be for a U.S. rule prohibiting justices from serving in foreign jurisdictions, the U.S. Supreme Court could, in Fung s view, also be part of this interesting exchange system, which adds a personal touch to the phenomenon of global judicial communication. Finally, I would like to extend my thanks to the Editor in Chief of the Texas International Law Journal, Edward Meier; the Symposium Coordinator, Jodie Slater; the Executive Editors, Kindel Elam and Benjamin Singer; the Managing Editors, Andrea Thomson and Patrick Tofilon; and the other members of the Journal. 14. Daniel Fung, Constitutional Reform in China: The Case of Hong Kong, 39 TEX. INT L L.J. 467 (2004).

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