Effectiveness and efficiency in judicial decision-making are the most important objectives of any court. While this concerns primarily the final decisions that are rendered, it is also relevant to the judicial process and the legal reasoning that a court or tribunal carries out to reach its decision, in order to ensure continuity and coherence. Traditional understandings of the international judiciary have seen the judges’ role as one where they discover and declare the law by applying it at face value to the legal issues that have arisen within the case, thereby achieving effectiveness through what is said to be direct and clear application of the law. This sits rather uneasily with the identification of customary international law (CIL), which is by its very nature unwritten and established by identifying evidence of state practice and opinio juris. The aim of this chapter is to examine instances of judicial activism in the decision-making of international courts and tribunals during the determination and application of CIL and how that allows for either judicial effectiveness or ambiguity.

Chapter 3 addresses the suggestion that for a special regime to exist, there must be a mutual engagement of community members. As the chapter argues, in the context of international law, a mutual engagement among a group of international law specialists can be inferred from their participation in a distinct legal discourse, and from their further specialization and distinct way of ascribing functions to legal agents. More specifically, it can be inferred from: the publication of specialized international law journals; the way of organization of conferences and workshops; the creation of inter-governmental organization; the work of NGOs; the specialized research profile of international scholars and description of chairs; their separation of tasks and division of labour; and the function that they ascribe to the judiciary and to the international legal scholar.

Building on Derrida’s celebrated analysis of the term ‘supplement’, this chapter investigates the fundamental ambivalence of supplementary means of treaty interpretation. While the general philosophy of the Vienna Convention interpretive regime rests on the assumption of a hierarchy between the primary means set forth in Article 31 of the Vienna Convention and the supplementary means of Article 32, qualifying certain means as supplementary presumes that the primary interpretive means are somewhat lacking and in need of a complement. The chapter also focuses on the ‘danger’ of such supplement that has been highlighted in practice, namely, that supplementary means themselves need to be interpreted before they can be used in an interpretive inquiry, reinforcing the larger point made in the book that it is impossible to get an unmediated access to any signified. The chapter argues that since supplementary means are not comprehensively listed in the treaty interpretation regime, a virtually endless number of materials can be made relevant in treaty interpretation discourse through the channel of supplementary means.

How does one ascertain the object and purpose of a treaty? Can a treaty have more than one object and purpose? What does giving effect to the object and purpose of a treaty mean in practice? Despite such fundamental uncertainties surrounding them, the ‘object and purpose’ are widely resorted to in the practice of treaty interpretation. This chapter argues that the object and purpose doctrine is coextensive with a large amount of interpretive discretion. The identification of the object and purpose of a treaty a largely indeterminate process, and the assumption that the treaty makers necessarily want the object and purpose of their treaty to be implemented under all circumstances leaves the treaty interpreter with considerable normative power that can hardly be resisted given the very terms of the assumption. The chapter argues that consideration of the finality of a treaty cannot be an exercise in abstract logic, but meet the requirements of practical reason.

The author assesses the role of consent in processes of binding dispute resolution before international courts and tribunals. He seeks to demonstrate that ‘consent’ has a particular role in binding dispute resolution. This particular role derives from the special nature of binding dispute resolution processes. They are intrusive and characterized by their uncertain outcome: the implications of State consent to the dispute resolution process crucially depend on decisions of an independent entity, namely an international court or tribunal. Because this is so, States insist on the need for consent, as a precondition of any binding dispute resolution process. At the same time, once consent has been given, control shifts to the competent international court or tribunal. Moreover, by virtue of their decision-making authority, many international courts and tribunals have managed to assert at least a persuasive influence over proper construction of the legal rules at stake, extending beyond the cases immediately pending before them. The chapter traces these peculiarities and examines how the tension between State and courts’ authority plays out in particular disputes.

Chapter 2 introduces the conceptual and theoretical frameworks, as well as the study’s methodology. In this chapter I propose and defend a conceptualization of judicial impact. Then, I develop and explain the main argument: that two elements are key to shaping impact for structural rulings, namely monitoring mechanisms and legal constituencies. Deploying monitoring mechanisms allows courts (and other participants in monitoring venues) to impose costs on the targets of the rulings and to offset information and power asymmetries. Legally empowered advocacy organizations (legal constituencies) can exercise legal follow-up and mobilize around the issue in the aftermath of the ruling. On their own, the presence of court-promoted oversight mechanisms or of legal constituencies can promote some effects. However, when combined, they can configure a collaborative oversight arena and ultimately yield higher impact results. The chapter closes explaining the research design: I introduce the eight case studies (four rulings from Argentina and four from Colombia) and the logic of the cross-case comparisons.

Chapter 7 provides an overview of the book, its main findings and refinements to the theory based on the lessons learned. It closes by presenting the study’s broader implications for normative arguments against judicial intervention on socioeconomic rights, and for theories of judicial power. This book shows that high courts can contribute to the advancement of rights, though they cannot do so alone nor can they offer silver bullets. The Colombian and Argentine highest tribunals have, at times, successfully configured important new political spaces for effective pursuit of public policy goals, in conjunction and dialogue with external actors. In doing so, they have increased their power and positioned themselves as non-negligible political forces.

Chapter 3 presents comparative case studies of two structural socioeconomic rights rulings: Argentina’s Causa Mendoza – an environmental ruling – and Colombia’s T-760 – a ruling safeguarding the right to health. In both cases, a collaborative oversight arena was created as a result of the convergence of legally empowered advocacy organizations and court-promoted monitoring mechanisms. The collaborative oversight arenas created spaces in which different participants could exercise accountability for unfulfilled commitments from the government and private agents and, more specifically, for the implementation of different aspects of the rulings. Additionally, the creation of spaces for sustained interaction around offered the chance for the diffusion of policy ideas and a rights-based framework, while giving civil society actors access to the state. The case studies also identify unintended and negative consequences from the rulings, recognizing these as integral parts of impact.

Chapter 4 presents case studies of the impact of four landmark socioeconomic rights rulings. Each pair of case studies seeks to uncover the influence that one of two elements can have on judicial impact: court-promoted monitoring mechanisms and the presence of legal constituencies. The first pair of cases explores the aftermath of rulings that have dense legal constituencies but no court-promoted oversight mechanisms: First, Causa Verbitsky in Argentina, a decision in which the court safeguarded the rights of inmates in the Buenos Aires Province. Second, C-383 1999 in Colombia, a decision in which the court safeguarded the right to housing of Colombian mortgage debtors. The second paired comparison looks at two structural rulings in which monitoring mechanisms were put in place but where there were low density legal constituencies. The first case in this pair is Causa Badaro in Argentina, a decision in which the court protected the right to pension of Argentine seniors earning above 1,000 Argentine pesos. The second case is T-547 2010 in Colombia, a decision in which the court protected the right to prior consultation of the Indigenous people of the Sierra Nevada in Santa Marta.

Chapter 5 presents the last two case studies of the book; this paired comparison completes the four sets. This pair of rulings has in common a lack of court-promoted monitoring mechanisms as well as the absence of legally empowered advocacy organizations. The first case study delves into the aftermath of the Chaco v. Defensor del Pueblo ruling in Argentina, where the Argentine Supreme Court sought to safeguard the rights of the Qom Indigenous group in the Chaco Province. The second case study is of T-231 1993, a ruling handed down by the Colombian Constitutional Court seeking to protect the right to a healthy environment for the inhabitants around the Bogotá Canal, in Cúcuta.

This Introductory chapter previews the main argument. I emphasize that there are two key elements in shaping judicial impact for structural cases: the oversight mechanisms that some high courts deploy to monitor compliance with their structural rulings and the advocacy organizations that mobilize in the aftermath of these rulings. The chapter also presents the book’s three main contributions: First, a careful dissection of post-ruling politics uncovers the mechanisms that create impact. Second, through a comparative study of monitoring tools, the book contributes to our understanding of how judicial power is constructed in the Global South. Third, it shows that these courts do not necessarily displace democratic politics, or elected policymakers; instead, they can create new political spaces devoted to special problems.

Colonial mixed courts were promoted by Western powers as an alternative to consular jurisdiction in non-Western countries. Unlike ordinary local courts, mixed courts were composed partly or entirely of foreign judges and applied Western or Western-inspired procedural and substantial rules. Unlike consular courts, they were considered an integral part of the legal order of the host polity, which could be a fully sovereign state, a protectorate, a mandate, or a condominium. After identifying the core features of colonial mixed courts and explaining their rationale, this chapter examines judicial activism in adjudicating the compensation mechanisms provided to foreigners by some mixed courts. The chapter shows how, despite the demise of mixed courts in the course of decolonisation, their pioneering experience in the field of transnational dispute resolution and the protection of individual rights contributed to the emergence of international judges as guarantors of individual rights in the twentieth century.

The introduction of the book has two purposes. First, it explains why a normative theory of ECJ procedural and organisational law is needed. It puts forward three reasons: first, procedural and organisational design involves making important choices on the role of courts in society; second, the dominant normative approach to assessing the ECJ’s work, namely the focus on its methods of interpretation, faces a number of conceptual problems; and third, ECJ judicial reform is of great practical relevance and requires normative anchoring. Secondly, the introduction explains the empirical strategies the book pursues to investigate the ECJ’s inner workings. In particular, it explains how requests for access to adminstrative documents and statistical analysis is used in the book to get a better understanding how the ECJ’s procedural and organisational rules are applied in practice. Finally, the introduction summarises the core of the book’s argument.

This chapter looks at the current relationship between international commercial courts (ICommCs) and international commercial arbitration (ICA). It first covers the historical background and current drivers for international dispute resolution. It finds ICommCs are of complex identity whose utility will be tested by market choice. The chapter then discusses what is meant by autonomy in the present context, and continues by looking at the needs and requirements of international dispute resolution (‘imperatives’) from a number of perspectives: those of the consumer (the ‘business imperative’), of governments (the ‘political imperative’) and of non-arbitral decision-makers (the ‘jurisprudential imperative’). From that review, a measure of interdependence between ICA and ICommCs emerges. The chapter ends with the conclusion that ICA and ICommCs will enjoy a competitive and collaborative, but not hybrid, relationship.

As Pakistan emerged from military rule upon the death of General Zia in a plane crash in 1988, it underwent a new governmental experience marked by tussles between unsettled elected governments, a constitutionally empowered civilian presidency and a military establishment that covertly exercised considerable power. Chapter 6 unveils how the superior courts utilised the available political space to engineer a dramatic expansion of public law and carved a role for themselves as an important institution of the state. As the civil state’s machinery became the turf of power struggles, safeguarding its independence and ensuring its rule-boundedness emerged as a key pillar of the superior courts’ Writ jurisdiction. The superior courts also began to develop a more robust jurisprudence of rule of law and fundamental rights, while the Supreme Court utilised its Original jurisdiction for the first time to institute Public Interest Litigation. Nonetheless, recurrent involvement in matters of pure politics and governmental change resulted in direct confrontations between the judiciary and elected governments, and ultimately the politicisation of judicial review.