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The development of global community of courts depends on a set of shared values and principles that not only foster cross-fertilization, but provide a setting in which conflict and critique may occur without threatening the underlying relationship.
 

Legal scholar Anne-Marie Slaughter describes a growing transnational community of courts. A global community, however, is not the same as a single global legal order.

How is a global community of courts created?

It begins with a sea-change in the way that courts think about their relationships to other courts.

Shifting Assumptions

In the past, courts in one country related to courts elsewhere in much the same manner as governments related to each other. That is, courts assumed the sovereignty of other nations and their laws and so deferred to their sovereignty. The decisions of other courts should be politely respected, but there was no assumption that decisions in South Africa may have any relation to decisions in the U.S.

Beginning from this assumption, a court that blocked a suit brought in another country might be seen as causing an affront in national relations. The presumption was that courts in one country deferred to the courts in other countries.

However, courts increasingly begin with a different assumption. Rather than seeing the courts of other countries operating in distinct legal fields, courts have begun to view the work of all courts as part of a larger judicial effort. The assumption is one of identify in enterprise—all courts are basically about the same business. Because of this, more open dialogue and cross-fertilization is possible.

In short, courts have begun to operate on quite different assumptions than before, and it is this change in assumptions that has lead toward the creation of a global community.

Strands of Identity

This assumption of identity of purpose provides courts with the basic framework and ground rules for global dialogue.

Slaughter identifies four “strands” of transnational community.

  1. Courts are not simply the face of different governments. Rather, courts in one country respect courts in another country as entities engaged in a common enterprise. All courts are responsible for resolving disputes and interpreting and applying laws fairly and competently.
  2. Courts are coequals in judging transnational matters. Courts in one country recognize the responsibility of other courts for adjudicating in matters of local concern. Because of this, courts in different countries can expect their “fair share” of work in adjudicating cross-border suites.
  3. All courts are responsible for protecting individual rights. Regardless of the country, assumptions of an identity of purpose leads to the expectation that all courts share a common charge to protect individual rights.
  4. Courts are more willing to clash with other courts. Because courts understand themselves to be about a common enterprise, polite deference to other courts is not as crucial. Rather, common assumptions and goals afford courts the ability to critique and disagree with each other without fear of causing an international incident.

Familiarity Breeds Conflict

It may seem paradoxical that as courts begin to see each other as part of a larger community of courts, conflict among courts increases. However, this paradox is only seeming.

As with members of a family, when courts share a common set of values they are able to critique each other based on those common standards or values. It is only with strangers—with whom we have little in common—that we are obliged to be polite. Shared values allow for conflict without threatening the relationship.

For instance, judges have begun to decide the best legal forum for cross-border cases. There is no presumption that one nation's courts are always going to be most appropriate for the case. Decisions are not based simply on whether one of the members of the dispute is a citizen. Rather, judges have begun to weigh the “fitness” of other national courts when determining whether to hear a cross-border case.

What are the rules or standards for deciding the best legal forum? Which courts meet the standards and which do not? Wrestling with these questions leads to conflict between courts. However, it is only on the basis of shared values that these kinds of questions can be asked at all.

What Is the Right Court for a Case?

How do courts decide which legal forum is most appropriate in a particular cross-border dispute?

Judges decide based on a set of minimal criteria. For instance, judges may make their decision about the appropriate legal forum based on such questions as:

  • Does the court have the procedural and discovery apparatus necessary for the complexity of the case?
  • Is the judiciary sufficiently independent of politics?
  • In a tort case, where did the harm or accident actually occur?
  • Which legal forum is most convenient for the litigants?
  • Would parallel cases in separate countries make for a meaningless duplication of work?
  • Is there any evidence that denying a foreign court's jurisdiction would damage bilateral relations between the countries?

The move is away from the earlier notion that all disputes must be heard “under our laws and in our courts.” Rather, courts determine the best forum based on the interests of the parties and the goal of achieving justice. However, if courts agree on the basic goals, they do not always agree on the particular solutions. Shared values allows for conflict within an ongoing dialogue.

Judicial Negotiation

Judicial dialogue between countries is not limited to situations in which there is a formal treaty between countries. In fact, in the absence of treaties, courts may negotiate procedures and protocols that in practice constitute “mini treaties.” These negotiated protocols build a bridge of sorts between the legal systems of countries quite apart from explicit involvement from the government.

When a framework for cooperation between courts in a particular case has been established, then both courts recognize the integrity of the other court. Tensions within the case are shared tensions. Even if the courts sometimes get in each other's way, at least everyone knows what is going on.

Vertical Relationships

Increased cross-fertilization and face-to-face dialogue among constitutional courts is only part of the process of creating a community. Forming a global community of courts also involves fostering vertical relationships between supranational and national courts. Justices on new international courts may seek out their national counterparts for the same reasons that judges on national constitutional courts have found it beneficial to draw on each other's work.

In some cases the relationship between supranational and national courts are rooted in treaties (for example, the European Court of Justice and the national judges within the EU or the NAFTA Chapter 11 tribunals). In other cases the relationship between a transnational court and national courts is less formalized. However, a community of courts is fostered even when the relationships between courts are not structured in treaties (as in the cases of the Inter-American Court of Human Rights and the African Court of Human Rights). The community grows as national courts increasingly draw on the decisions of supranational tribunals and as these tribunals assess the decisions of national courts against international standards.

Norms and Principles

The global community of courts is still a work in progress. The shared values that grow out of and increasingly foster cross-fertilization are still in their infancy. It would be a mistake to think that all justices and all courts have a clear conception of these shared principles, much less that they all act on them.

Even so, shared principles are emerging. Slaughter suggests four principles or precepts that could foster a global community of courts:

  1. Courts can share a common understanding of checks and balances. National constitutional courts and supranational courts have their own spheres of jurisdiction. The community is fostered when these different courts respect the jurisdictions and purposes of other courts, both horizontally and vertically.
  2. Courts can share common ground rules for positive conflict. Critique and conflict should be part of ongoing interjudicial dialogue. Courts must share a sense of the basic “rules” of conflict in order to foster this dialogue without threat to relationships.
  3. Courts can respect pluralism and legitimate differences within shared principles. National constitutional courts are essentially local, interpreting and applying the laws and procedures of particular countries and peoples. However, a community is fostered to the extent that these differences exist within shared boundaries. Difference may be legitimate, but it is not complete.
  4. Courts can see that persuasion and not coercive authority is fundamental. A global community requires that courts believe that they can learn from each other. Cross-fertilization cannot be merely a matter of power relations. Different courts should be respected for what they can both give to and draw from the larger community.

Bottom Line

Anne-Marie Slaughter describes the processes and principles behind a growing global community of courts. The development of this community depends on a set of shared values and principles that not only foster cross-fertilization, but provide a setting in which conflict and critique may occur without threatening the underlying relationship.

 
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Reference

Slaughter, Anne-Marie. 2003. “A Global Community of Courts.” Harvard International Law Journal 44:191-219.

 
 
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