Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice

Abstract

The Andean Tribunal of Justice (ATJ) is the third most active international court and the oldest and most successful of eleven transplanted copies of the European Court of Justice (ECJ). Drawing on over a decade of interviews, archival research, and case coding, Transplanting International Courts examines the ATJ’s creation, doctrinal development, and contributions to the law and politics of the Andean Community. Alter and Helfer evaluate the ATJ in a wider perspective, seeking to understand how transplanted supranational institutions operate in practice and the strategies that international judges deploy to navigate turbulent political environments, especially in developing country contexts.Transplanting International Courts begins by analyzing how the European judicial model shaped the ATJ’s original design and foundational legal doctrines. But the ATJ has since charted its own path, most strikingly in the area of intellectual property (IP). The ATJ has built deep and mutually supportive relationships with domestic IP administrative agencies that have allowed it to confront governments pressured by the U.S. and by multinational drug companies to abandon limits on IP that promote public health and protect consumers. Outside of this IP island, the ATJ is less legally and politically influential. The tepid support of national judges and the lack of jurist advocacy movements prevent the tribunal from graining greater legal and political traction.This pattern has continued even as Andean Community has faltered. Riven by ideological divisions among the member states, in some respects the regional integration project has moved backward over the last decade. Even in this fraught political climate, the IP island is flourishing and the Andean legal system continues to confront state noncompliance. As they explore multiple aspects of the Andean legal system, Alter and Helfer’s interdisciplinary analysis elucidates the many factors that contribute to and limit the effectiveness of all international courts.This working paper includes the table of contents and introductory chapter of the book.