Fall 2011 | Issue 21

Fall 2011 | Number Twenty-One | The Berlin Journal | 41
the law in question did not conflict with
European Community Law. These ecj rulings
initiated a legal revolution that has
reverberated around the world.
We used to think that the ecj’s willingness
and ability to successfully build
a broad authority for itself was simply a
strange, probably unique, fairy tale. The
ecj’s only power was its ability to say
that a member state had failed to fulfill
its legal obligation under the Treaty of
Rome. European judges and governments,
WE USED TO THINK THAT THE
ECJ’S WILLINGNESS AND ABILITY
TO SUCCESSFULLY BUILD A BROAD
AUTHORITY FOR ITSELF WAS
SIMPLY A STRANGE, PROBABLY
UNIQUE, FAIRY TALE.
wanted to know if the founding treaty of
the European Economic Community, the
Treaty of Rome, created legal obligations
that private actors could invoke in front of
national courts. Then, in 1964, an Italian
small claims court judge referred a case
involving a three dollar electricity bill to the
ecj, asking whether the Italian nationalization
of their electricity industry violated
European Community Law. If it wasn’t
already abundantly clear that Italy would
never concede that eec membership meant
that it could no longer nationalize essential
industries, the Italian Constitutional
Court made it so. The Italian court ruled
first, finding no question of European law
and asserting that, in any event, European
law must bend to Italian law. The ecj
responded with what Americans would
call a “Marbury v. Madison” ruling. The
ecj asserted that European law takes precedence
over all conflicting national law, but
however, increasingly behaved as if the
ecj were ensconced in elaborate robes of
authority. The success of the ecj’s legal
revolution unwittingly created a model of
an embedded approach to international law
enforcement, where international rules are
part of a national legal system, and national
judges work with supranational judges to
ensure that governments respect law that is
both national and international in nature.
This embedded approach to international
law enforcement has spread around the
world. Increasingly, international treaties
require governments to create domestic
enforcement mechanisms. Where international
courts also exist, domestic enforcement
operates in the shadow of international
courts. While domestic actors are not
required to do what the international legal
body says, litigants and non-government
actors can access both domestic and
international levels in coordinated strategies
aimed at pressuring for greater law
compliance.
The Cold War contributed to the
strengthening of existing ICs and the global
spread of ICs that follow the European
embedded approach to international law.
There are now five international courts
with human rights authority, located in
Europe, Latin America, and Africa; and
sixteen regionally based ICs with jurisdiction
to help enforce economic agreements.
Two regional economic courts follow the
wto model of creating permanent appeals
bodies with compulsory jurisdiction, with
only states allowed to initiate litigation.
Fourteen regional judicial systems follow
the ecj model; they allow supranational