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.

International Courts in Latin America and the Caribbean

This introductory chapter presents the main theoretical and methodological issues of the book. In terms of theory, the chapter explains that the book relies on the concept of de facto authority, according to which international courts become authoritative and powerful when their rulings are endorsed by relevant audiences in their practices. To complement this approach, the chapter explains that the book proposes five original analytical markers, which are central for analysing and explaining the social processes through which international courts, in general, and regional economic courts, in particular, gain or lose de facto authority. These are: (i) the nature of the political environment surrounding them; (ii) the timing of their institutional founding; (iii) the material and/or abstract interests of the agents interacting with them; (iv) the fundamental support of different social groups relating to them; and (v) the societal embeddedness in their operational context.

The Theory and Practice of Founding Regional Courts in Latin America and 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.

The De Facto Authority of the Caribbean Court of Justice at the Intersection of Trade Liberalisation and Fundamental Rights

This chapter deals with the trajectory of gaining de facto authority of the Caribbean Court of Justice (CCJ), showing how, in its first fifteen years, the Court has been relatively successful as it achieved both narrow and intermediate authority in both its jurisdictions. The chapter shows how this authority was mostly due to several institutional choices of the part of the Court’s founders and to some bold—yet well-balanced—rulings of the Court, which contributed to overcoming the Caribbean legal elites’ initial lack of trust. The progressive expansion of the Court’s authority occurred mainly in matters relating to individual and fundamental rights (i.e. on death penalty issues and freedom of movement of individuals within the Caribbean Common Market (CARICOM)), while it struggled to move beyond a basic form of authority on trade-related matters. This variable authority of the CCJ proves to be grounded in the operational context of the Court. The most notable difficulties faced were the lack of interest of the business community in judicial solutions, the limited powers granted by the CARICOM Secretariat to file non-compliance cases before the Court, and the reluctance of national judges to engage in a constructive dialogue with their regional counterparts through the medium of the preliminary reference procedure.

The Extended Foundation of the Caribbean Court of Justice between Decolonisation and Globalisation

This chapter deals with the extended process of creation of the Caribbean Court of Justice (CCJ) arguing that, different from what often stated in the literature, the Court is the institutional crystallisation of two long-enduring movements within the Caribbean legal field. One of these two movements is linked to the development of early regionalism, and ties into the Court’s origins as a regional economic institution aimed at reviving the Caribbean Common Market (CARICOM). The other is a movement related to the long-lasting process of Caribbean decolonisation from the United Kingdom, as the CCJ is also intended to be a regional Supreme Court to replace the Privy Council as the apex court of the former British West Indian colonies. The chapter also analyses the window of opportunity leading to the creation of the Court, most notably the clash between different generations of Caribbean legal elites and their own respective disagreements with the Judicial Committee of the Privy Council on death penalty issues and, more generally, on how to handle the judicial system of the Caribbean countries.

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

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

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.