The Challenged and Challenging De Facto Authority of the Central American Court of Justice at the Intersection of Pacification, International Law, and Regionalism

This chapter deals with the trajectory of gaining de facto authority of the Central American Court of Justice (CACJ), showing how, different from the Caribbean Court of Justice (CCJ), this Court has thus far failed to leave a significant mark in its operational context. In its early years, the Court fared rather well, especially in terms of its capacity to build a system of community law and to address some institutional difficulties of the Central American Integration System (SICA). However, when the Court became involved with several highly political disputes (i.e. a political clash between two former Nicaraguan Presidents and some territorial disputes among its Member States) in the early 2000s, it encountered strong resistance from several actors in its context of operation. As in the analysis of the CCJ, this chapter explains the fluctuation of the CACJ’s authority by looking at the role played by various contextual factors such as the institutional conflicts between the various organs of Central American integration, the highly polarised national politics of some of the Court’s Member States, and the divergent professional interests of the Central American legal elites.

The Caribbean Court of Justice

10.1093/oso/9780198795582.003.0007 ◽

2018 ◽

Author(s):

Salvatore Caserta ◽

Mikael Rask Madsen

Keyword(s):

Privy Council ◽

Criminal Cases ◽

Community Law ◽

Caribbean Community ◽

Court Of Justice ◽

Sociopolitical Context ◽

The Caribbean ◽

Criminal Matters ◽

Court Of Appeal

This chapter analyzes the Caribbean Court of Justice (CCJ), the creation of which was regarded as the culmination of the Caribbean’s long and protracted process toward independence from its former colonizers. Formally, the CCJ was instantaneously empowered to hear cases involving Caribbean Community law (Community law). The CCJ was also empowered to replace the Judicial Committee of the Privy Council (JCPC) in London—a last court of appeal for civil and criminal cases from the Caribbean and the most visible remnant of the British Empire’s former rule. The CCJ’s unique double jurisdiction—original over Community law and appellate over other civil and criminal matters—underscores the complex sociopolitical context and transformation of which it is a part. Ultimately, the CCJ’s growing authority has increasingly made the Court the institutional intersection for the convergence of these two different paths toward establishing the Caribbean as a legally integrated regional unity.

The Theory and Practice of Founding Regional Courts in Latin America and the Caribbean

International Courts in Latin America and the Caribbean ◽

10.1093/oso/9780198867999.003.0004 ◽

2020 ◽

pp. 96-121

Author(s):

Salvatore Caserta

Keyword(s):

Latin America ◽

Latin American ◽

Theory And Practice ◽

Central American ◽

Central Importance ◽

Regional Economic ◽

Court Of Justice ◽

The Caribbean ◽

This chapter compares the foundations of the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ) with those of the Andean Tribunal of Justice (ATJ) and of the Mercosur Permanent Review Court (PRC). The goal is to provide general considerations related to the actors and factors that may be deemed of central importance for founding regional courts, and to confirm the value of the approach taken in this book. Similar to those of the CACJ and CCJ, the foundations of the ATJ and of the Mercosur PRC also extended over relatively long periods of time and were finally unlocked by the occurrence of events that were only partially and indirectly related to the two Courts. Against this background, the chapter draws general theoretical conclusions on the foundations of Regional Economic Courts (RECs) in Latin American and the Caribbean.

Regional Integration through Law and International Courts – the Interplay between De Jure and De Facto Supranationality in Central America and the Caribbean

Leiden Journal of International Law ◽

10.1017/s0922156517000322 ◽

2017 ◽

Vol 30 (3) ◽

pp. 579-601 ◽

Cited By ~ 4

Author(s):

SALVATORE CASERTA

Keyword(s):

Regional Integration ◽

Central American ◽

The European Union ◽

International Courts ◽

Caribbean Community ◽

Theoretical Approaches ◽

Court Of Justice ◽

Societal Actors ◽

The Caribbean ◽

AbstractThe article proposes an innovative theoretical framework outlining preconditions for Regional International Courts (RICs) to act as engines of supranationality in different institutional and socio-political contexts. In so doing, the article nuances the theoretical approaches to supranationality and supranational adjudication. The article focuses on the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ). Both courts have been branded institutional copies of the Court of Justice of the European Union (CJEU); they have even borrowed key jurisprudential principles from the Luxembourg Court with the goal of expanding the reach of Central American and Caribbean Community Laws. Yet, both the CACJ and the CCJ have thus far failed to foster supranationality in their respective systems. This is because the conditions allowing RICs to become engines of integration lie, for the most part, beyond the direct control of the judges, most notably, with other institutional, political, and societal actors, such as national judges, regional organs, legal and political elites, as well as academics. The article thus suggests that RICs can become engines of supranationality only to the extent to which they are supported by a set of institutional, political, and societal pre-conditions allowing for the concrete enforcement of the rulings of the RIC at the regional and national levels.

Between Community Law and Common Law: The Rise of the Caribbean Court of Justice at the Intersection of Regional Integration and Post-Colonial Legacies

SSRN Electronic Journal ◽

10.2139/ssrn.2528978 ◽

2014 ◽

Cited By ~ 7

Author(s):

Salvatore Caserta ◽

Mikael Rask Madsen

Keyword(s):

Regional Integration ◽

Common Law ◽

Post Colonial ◽

Community Law ◽

Court Of Justice ◽

Colonial Legacies ◽

The Caribbean ◽

The Extended Foundation of the Central American Court of Justice between Pacification and Globalisation

International Courts in Latin America and the Caribbean ◽

10.1093/oso/9780198867999.003.0003 ◽

2020 ◽

pp. 65-95

Author(s):

Salvatore Caserta

Keyword(s):

Economic Integration ◽

Central American ◽

Local Elites ◽

Peace Negotiations ◽

Court Of Justice ◽

The Caribbean ◽

The Creation ◽

The Cold War ◽

Over Time

This chapter deals with the extended process of creation of the Central American Court of Justice (CACJ) arguing that, similar to the Caribbean Court of Justice (CCJ), the Court is also the institutional crystallisation of the different movements that characterised the Central American legal field over time. One of the movements leading to the creation of the CACJ is highlighted in the literature on the proliferation of international courts (ICs), according to which the Court is an EU-style regional economic court whose aim is to enforce the policies of the Central American Integration System (SICA). The other movement, pursued by more local elites, is concerned with the long-lasting project of pacifying and democratising the region by legal and judicial means. In addition to examining the dynamics at play during this extended foundation, this chapter also looks at the window of opportunity that led to the creation of the Court, which was found in the Esquipulas I and II peace negotiations and the need to strengthen economic integration at the end of the Cold War.

The Authority and Power of Regional Economic Courts in Latin America and the Caribbean

International Courts in Latin America and the Caribbean ◽

10.1093/oso/9780198867999.003.0007 ◽

2020 ◽

pp. 214-258

Author(s):

Salvatore Caserta

Keyword(s):

Latin American ◽

Transition To Democracy ◽

Central American ◽

Regional Economic ◽

Regional Institutions ◽

Court Of Justice ◽

The Caribbean ◽

State Actors ◽

Lack Of Commitment

This chapter compares the authority of the Central American Court of Justice (CACJ) and the Caribbean Court of Justice (CCJ) with that of the Andean Tribunal of Justice (ATJ) and the Mercosur Permanent Review Court (PRC) and, in so doing, draws general conclusions about the actors and factors that may be deemed of importance for better understanding the de facto authority of the Latin American and Caribbean Regional Economic Courts (RECs). More specifically, it shows that, similar to the CCJ, the ATJ has been relatively successful in achieving authority, at least in the area of intellectual property (IP) law. This occurred thanks to the Court’s ability to develop a relationship with state and sub-state actors, such as administrative agencies and national judges, which repeatedly filed preliminary rulings on these topics, thus allowing the Court to make a difference in this area of law. The chapter also shows the fluctuations of the authority of the ATJ on classic matters of community law, such as removal of trade barriers and the implementation of the policies of the Andean Community. In contrast, the Mercosur PRC has struggled throughout its history to ensure that it receives a steady flow of cases to rule upon and has been repeatedly criticised by both state and sub-state actors. This final chapter shows that this reality is a symptom of political instability, lack of commitment to regional institutions, authoritarian politics, and struggle to complete the transition to democracy in the Mercosur Member States. Against this background, the chapter draws general theoretical conclusions on the authority of the four RECs in Latin American and the Caribbean.

RESILIENCE TECHNIQUES OF INTERNATIONAL COURTS IN TIMES OF RESISTANCE TO INTERNATIONAL LAW

International and Comparative Law Quarterly ◽

10.1017/s0020589321000154 ◽

2021 ◽

pp. 1-32

Author(s):

Salvatore Caserta ◽

Pola Cebulak

Keyword(s):

European Union ◽

International Law ◽

Land Rights ◽

Analytical Framework ◽

The European Union ◽

International Courts ◽

Court Of Justice ◽

Indigenous Groups ◽

The Caribbean ◽

Abstract International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

From Van Duyn to Mangold via Marshall: Reducing Direct Effect to Absurdity?

Cambridge yearbook of European legal studies ◽

10.1017/s1528887000002767 ◽

2007 ◽

Vol 9 ◽

pp. 81-109 ◽

Cited By ~ 3

Author(s):

Alan Dashwood

Keyword(s):

European Community ◽

Direct Effect ◽

Golden Age ◽

Early Years ◽

Community Law ◽

Constitutional Order ◽

National Courts ◽

Court Of Justice ◽

Intellectual Influence ◽

European Community Law

In an article published in 1983, Pierre Pescatore who, as a Member of the Court of Justice, exercised a powerful intellectual influence over the development of European Community law during what might be deemed the Court’s Golden Age, once described direct effect as ‘an infant disease’. What he meant was that, in the early years of the Community, it may have seemed remarkable, even dangerous, that provisions of the EC Treaty or of acts adopted under it could give rise to rights and correlative duties which national courts were called upon to recognise and enforce. But now that Community law had reached maturity, direct effect should be taken for granted, as a normal incident of an advanced constitutional order.

International Courts in Latin America and the Caribbean

10.1093/oso/9780198867999.001.0001 ◽

2020 ◽

Author(s):

Salvatore Caserta

Keyword(s):

Latin American ◽

Decisive Role ◽

Fundamental Rights ◽

Science Literature ◽

Regional Politics ◽

Regional Economic ◽

Court Of Justice ◽

The Caribbean ◽

Latin American And Caribbean

The book provides the first in-depth and empirically grounded analysis on the foundations and trajectories of gaining authority of the four Latin American and Caribbean regional economic courts: the Central American Court of Justice (CACJ), the Caribbean Court of Justice (CCJ), the Andean Tribunal of Justice (ATJ), and the Mercosur Permanent Review Court (PRC). While these courts were, on their terms, established to build common markets and to enforce trade liberalization, they have often developed bodies of jurisprudence in domains often not directly associated with regional economic integration. The CCJ has been most successful in the area of human and fundamental rights; the CACJ has addressed issues related to the enforcement of the rule of law in national legal arenas and long-standing border disputes between the countries of the region; the ATJ is an island of effective adjudication on intellectual property issues; and the PRC has significantly struggled to receive a significant number of cases to rule upon all together. The particular trajectories of the four Latin American and Caribbean Regional Economic Courts (RECs) suggest that there is no universal formula for success for these institutions and that their operational path is not necessarily a function of their formally delegated competences and/or of the will of the Member States, as it is often argued in mainstream legal and political science literature. Rather, local socio-political contextual factors—such as the historical legacies of a region, the interests and dynamics of socialization of legally and politically situated actors, the nature of national and regional politics, and legal culture—often play a far more decisive role in influencing the direction of RECs during and after their establishment.

The European Court of Justice: What are the Limits of its Exclusive Jurisdiction?

Maastricht Journal of European and Comparative Law ◽

10.1177/1023263x0901600303 ◽

2009 ◽

Vol 16 (3) ◽

pp. 291-314 ◽

Cited By ~ 1

Author(s):

Tobias Lock

Keyword(s):

Case Law ◽

European Court Of Justice ◽

Member States ◽

International Courts ◽

Community Law ◽

Exclusive Jurisdiction ◽

Court Of Justice ◽

European Court ◽

Academic Discussion

The article explores the limits of the ECJ's exclusive jurisdiction by addressing two main issues: firstly, whether there are exceptions to that exclusivity, such as the application of the CILFIT case law or the exclusion of Community law from the dispute. Secondly, it asks whether other international courts must respect the ECJ's jurisdiction over a case. The article commences by briefly discussing the ECJ's exclusive jurisdiction as it was established in Opinion 1/91 and the Mox Plant-Case and draws conclusions from this case law. It then addresses the above-mentioned points and comes to the conclusion that there are generally no exceptions to the ECJ's exclusive jurisdiction and that the only option open to Member States is to exclude Community law from a dispute (and even that option is subject to limitations). Furthermore, after exploring several routes advanced in the academic discussion, the article comes to the conclusion that other courts must respect the ECJ's jurisdiction and as a consequence declare the case inadmissible.