Mercosur, Andean Community and CARICOM : Latin American regional integration organizations in face of the Legalization theory

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Mercosur, Andean Community and CARICOM:

Latin American regional integration organizations in face of the Legalization

theory

Supervisor: Prof. Dr. Sebastian Krapohl

Allison Miranda

12290831

Master Thesis Political Science: Political Economy

Research Project: The New Protectionism and the End of Multilateral Cooperation

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After the cataclysmic events that took place in the beginning of the last century, devastating countries and these countries’ economies, the world was reborn trying to establish a new order. An example is the pan-European project of integration. After the Second World War – very much influenced by the European example (Börzel & Risse, 2012) (Lenz, 2012) – regional integration organizations spread all over the globe. The most successful initiative, thus, that integrated more deeply and with a bigger scope, is with no doubt, the European Union (EU).

Since its origins, the European project has generated development among the members of the association. In an early stage, it has created economic development, and more recently, have supported development in a series of less developed regions. Through a process of learning, copying or competing, organizations have been influenced by the EU. Latin American organizations like Andean Community, CARICOM and Mercosur can be viewed as examples of this diffusion. (Alter & Helfer, 2010) (Lenz, 2012) (Alter, 2012) (Alter, Helfer, & Saldías, 2012) (Börzel & Risse, 2012) (Saldías, 2014). Nonetheless, despite the learning or copying process, these institutions seem not to have the same results as the European institutions (Börzel & Risse, 2012, p. 2).

Abbott et al. (2000), analyzing one of the sectors of regional integration, suggests that the degree of judicial integration is related to the degree of legalization of the institution. However, as the work of Krapohl et al. (2009) (Alter, 2012, p. 145) (Kahler, 2000) suggest, despite the legalization variables pointing in the right direction, it does not necessarily mean a higher degree of judicial integration. Since Latin America is one of the regions with the highest number of regional integration organizations and has relatively mature democracies, – If compared to the African democracies, the highest in the number of regional integration organizations – the author has selected three Latin American organizations to analyze. It is clear that the region deserves attention on this matter. The Latin American institution that has gained more attention is Mercosur. Nevertheless, other organizations like the Andean Community and CARICOM have been underexplored, especially when it comes to testing their degrees of legalization. Moreover, it is necessary to analyze other institutions other than the Europeans so we can understand how the elements that enhance integration interplay with each other and systematically vary these elements.

In this sense, it is considered relevant to explore these organizations as they have not been explored and may present different results from the studies that focused on Mercosur.

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CARICOM is one of the least explored in academic literature. As the European example has enlightened, regional integration organizations can generate development especially for people of those marginalized or remote areas. Learning from the most sophisticated example of integration, poorer regions like Latin America can incorporate improvements to their institutions and better serve their populations.

As observed in Krapohl et al. (2009) although Mercosur had the legalization elements pointing moderately to the right direction, judicial integration was not being reached in a consistent degree. It demonstrates that development in Latin America is influenced by some factor not foreseen by Abbott et al. (2000). Moreover, it raises our research question:

Why does legalization in Latin American regional organizations not lead to more regional integration?

In order to answer this question, I will analyze one of the sectors of integration. Judicial integration. The dispute settlement mechanisms and law cases will be observed and compared such as the degree of integration among the members of the organizations. Taking into account that we will focus on Latin America, we have selected three similar organizations mature enough to already have had their dispute settlement mechanisms activated. Mercosur, the most known case, was founded in 1991 and its Permanent Review Tribunal created by the Olivos Protocol was established in 2004. The second institution to be analyzed, the Andean Community is one of the first regional integration organization to be created in South America, being established by the Cartagena Agreement in 1969. The Andean Tribunal of Justice has been active in Quito since 1984. The last selected regional organization to be observed is CARICOM. The institution was created in 1973 and comprises fifteen Caribbean countries. The dispute settlement mechanism of the organization is composed by the Protocol IX – an amendment to the founding treaty – and the procedures of the Caribbean Court of Justice.

Bearing in mind the theories and the academic discussion, we believe that two hypotheses can be drawn out of it.

On one hand, (H1) the legalization degree of the selected cases and the respective

degree of judicial integration do not match with legalization theory and legalized institutions are rather an institutional option that organizations can opt for or not.

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Or on the other hand, (H2) the selected cases reinforce legalization theory and

demonstrate that the level of judicial integration is related to the degree of institutional legalization and economic demand.

In this paper, as the further discussion will demonstrate, we will use a parsimonious typology for classifying the ways in which diffusion can occur. Hence, I will consider diffusion by emulation, competition, and learning. Moreover, concerning legalization theory,1 I will adopt the same scale adopted by Krapohl et al. (2009), being ‘high’, ‘moderate’ or ‘low’ levels of legalization. I do not attribute absolute values to these ratings.

The following section will focus on academic literature. I will use Diffusion Theory in order to perceive how regional integration organizations behave, how they interact with each other and how they influence each other. Further, in this section, we acknowledge that even though organizations sometimes copy each other, and influence each other, the result of these institutions is different. Thus, we will analyze what legalization theory can explain about the difference between institutions and their effects on the integration process.

The subsequent sections will analyze the judicial integration in the three selected organizations. We will start by analyzing the case of Mercosur. I will build mainly on the work of Krapohl et al. (2009) and assert how this case has developed from the time of his work. The following cases will focus on other Latin American organizations that have been less explored in the academic literature, the case of the Andean Community and CARICOM. The seventh and last section concludes this paper by analyzing, comparing the results, and drawing some final considerations.

2. Literature Review

Several elements can influence the integration process. As the European Court of Justice (ECJ) has proven, the court itself, through its ruling, and its features – namely the possibility of private litigants present charges against states in case of non-compliance of European law, and make domestic judges apply European law – promoted integration, including during times of stagnation of the process (Alter, 2012, p. 138) (Krapohl, Dinken, & Faude, 2009, p. 2). As Regional Integration Projects spread around the world after the Second World War,

1_{In this paper we will mention ‘legalization theory’ and ‘legalized institutions’ in light of the concept proposed}

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organizations had few models of institutions to build on. Regarding international courts and judicial institutions, these new organizations could create their own institutions or learn from European and the General Agreement on Tariffs and Trade (GATT) experiences (Alter, Helfer, & Saldías, 2012, p. 644). Nevertheless, the GATT system was more focused on free trade and not on regional integration. Hence, organizations that aimed at deeply integrating as the Andean Community, Mercosur and CARICOM, would naturally, follow the steps of a similar organization, the European Community, in this case. (ibid) (Alter, 2012, p. 145).

As scholars noted, organizations influence each other through various manners (Alter, 2012) (Alter & Helfer, 2010) (Alter, Helfer, & Saldías, 2012) (Börzel & Risse, 2012) (Elkins & Simmons, 2005) (Lenz, 2012). Alter et al. (2012) analyzed the case of the Andean Tribunal of Justice and the influence it suffered from the European Court of Justice. The study described a constant and lasting relationship between the parties. It was clear that one influenced the other – through meetings, where European technocrats and technicians shared knowledge and experience with the Andean counterparts.

Having this relation into account, we understand that the social ties developed between organizations play a very relevant role on the path and behavior of an organization. Therefore, it is clear that functionality not always explains how organizations behave. Diffusion theory, however, provides a better explanation of how this social environment makes behavior diffuse. According to (Elkins & Simmons, 2005, p. 36) diffusion is the driver of the process and not just an outcome.

Diffusion theory is an academic approach that takes into consideration international influence as an element to shape an organization’s behavior, rather than previous theories that tended to focus on endogenous aspects. (Jetschke & Lenz, 2013) (Lenz, 2012). On the relation between the European Union and other regional organizations, this approach eases the overemphasizing on the side of the European organization. Börzel and Risse define diffusion as “a process through which ideas, normative standards, or […] policies and institutions spread across time and space” (Börzel & Risse, 2012, p. 5). This definition is broad enough to cover all the manners in which diffusion can occur. Nevertheless, it may not be clear enough of the interdependence underlying this process. Therefore, we will use the definition of (Holzinger & Knill, 2005, p. 776) also used by (Jetschke & Lenz, 2013, p. 627), that consider diffusion as an “analytical perspective that focuses on channels of influence working between regional organizations” and

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that “the prior adoption of a trait or practice by a population changes the probability of adoption for the remaining non-adopters” (Elkins & Simmons, 2005, p. 36).

Moreover, scholars have framed the typology of diffusion differently. According to the earlier study of (Elkins & Simmons, 2005, p. 39), diffusion occurs according to two classes: adaptation to altered conditions and learning. In this sense, the author separate diffusion into the situations where the adoption of practice by an organization will alter the value of the practice (adaptation to altered conditions) or, on the contrary, the adoption of such a practice will not cause alteration (learning). This interpretation of how diffusion works is aligned with the idea presented in (Börzel & Risse, 2012, p. 5) where the authors distinguish two types of mechanisms in how diffusion occurs: directly – when one can actively diffuse certain ideas, practices, institutional model or policies to a receiving group or agent – or indirectly – diffusion occurs by emulation. Nevertheless, a larger portion2_{of the scholar is less parsimonious and identify three ideal types}

of mechanisms in which this influence between regional organization toward institutional change can occur: competition, learning and emulation (Jetschke & Lenz, 2013, p. 628) (Gilardi, 2012, p. 455) (Lenz, 2012, p. 156). Börzel and Risse (2012, pp. 6-8), on their turn, support that diffusion can occur through physical or legal coercion, utility calculations, socialization, and persuasion. In this classification, the authors defend that the European institutions present conditionalities when supporting others or on the entry of candidates to the union.

Nonetheless, academics responded to the previous by saying that there is no evidence that European Union institutions favored or not an organization because of the organic similarity or similarity of practices of an organization. (Lenz, 2012, p. 166) (Alter, Helfer, & Saldías, 2012) (Alter, 2012, p. 145). The last, responding to Börzel and Risse, also argues that “Blind emulation also does not explain ECJ emulation” since most of the adopters of the ECJ-style International Courts adapted the institutions to their specificities.

In fact, the European Union and Mercosur signed an agreement in 1992 – one year after the creation of Mercosur – in which EU agreed to support and contribute to Mercosur’s integration process in many ways, including financial support. However, this approximation happened by Mercosur’s initiative, when the member states’ Foreign Affairs ministers met the European Commission in 1991 seeking for guidance and approximation. (European Commission, 2018).

2_{Although, as (Holzinger & Knill, 2005, p. 779) draw attention, typology differ very much between academics.}

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Bearing in mind the earlier discussion on the types or ways in which diffusion can occurs, we understand that diffusion occur essentially in three ways: emulation, competition, and learning. In (Jetschke & Lenz, 2013, p. 628) competition is defined as “a process in which ROs [Regional Organizations] are affected by the decisions of those whom they rival in the international arena for scarce (economic) resources – such as aid, foreign direct investment (FDI) and/ or trade”. This type of diffusion is closely related to CARICOM where bilateral investment treaties have been made due to the high competition for foreign direct investment. (Elkins, Guzman, & Simmons, 2006). Thus, competition can be understood as the way in which organizations copy practices and policies in order to overcome other organizations in the run for external benefits.

Emulation, that can also be called ‘logic of appropriateness’ (Börzel & Risse, 2012, p. 5) is defined by Jetschke and Lenz as a process “in which the norms, values, and practices of other ROs are perceived as desirable and legitimate, and are hence emulated by the aspiring RO so as to signal its belonging to the same community” (Jetschke & Lenz, 2013, p. 629). Authors diverge on the subcategories under emulation mechanism. Börzel and Risse (2012) stress the blind mimicry emulation in which one organization just transplant, just copy other organization. Nevertheless, (Alter, 2012) draws attention to the fact that most emulations of the ECJ, as an example, suffered adaptation. What undermines the possibility of blind mimicry. Also, (Lenz, 2012, p. 157) responding to (Börzel & Risse, 2012, p. 10), defends that there is indeed, a need for functional demand. Hence, if one is to emulate others, it has to overcome a functional demand, what would deny blind mimicry. Therefore, we can view emulation as an attempt of one organization to copy other having as a goal the fulfillment of a functional demand, i.e. to solve a problem.

Lastly, diffusion by learning is defined as “the decisions made by other ROs impart useful information about the solution to specific co-operation problems” (Jetschke & Lenz, 2013, p. 629). Furthermore, Börzel and Risse add that “through socialization, agents redefine their interest and their identity” (Börzel & Risse, 2012, p. 7). And “learning requires active engagement, not simply ‘downloading’ some rule or institution design” (Börzel & Risse, 2012, p. 8). Consequently, we can comprehend learning as a way of diffusion in which one organization observe other institution dealing with a determined problem and draw some lesson out of the experience, copying the practice or not.

Obviously, these categories may have subcategories to cover specificities. In this sense, I observe that under the learning mechanism, there are at least two subcategories: learning

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passively and learning actively. When analyzing the case of the Andean Community is clear that as (Alter, Helfer, & Saldías, 2012) described, the Andean actors perceived that they lacked an international court to reinforce Andean law and compliance by their member states. This observation generated a process of study and research of which type of institution would best serve the community. This process was endogenous. In 1972, the Andean bodies sought the support of the Institute for the Integration of Latin America and the Caribbean (INTAL), a Latin American Institute, to define the best model for the Andean Tribunal (Alter, Helfer, & Saldías, 2012, p. 644). In 1972, INTAL recommended the creation of an ECJ-style court for the Andean Community, even accepting the role of privates litigants to recur to the courts as a way to promote Andean law (INTAL, 1972, p. 284). Hence, it shows that the organization recognized a problem and started an internal process of study and research to respond to the problem. On the case of Mercosur, the learning mechanism worked in a different way. In the same year of the creation of the organization, - and therefore, even before the emergence of eventual problems – the agents of the organization went to Brussels and sought the guidance of their European counterparts. An agreement was signed in the next year in which the European Union would support and guide the integration process in Mercosur. However, even though Mercosur was closely related to the European Union from its start, it ended up departing from the European institutions when it comes to Courts. Although clearly inspired by the European institutions, Mercosur’s Permanent Review Tribunal adopted a more WTO-style international court (Lenz, 2012) (Alter, 2012). Therefore, these two examples demonstrate two different forms of diffusion by learning.

2.1. How does literature classify the selected cases?

The three selected cases were created after the European Union and the literature present at least two of these cases as organizations that in somewhat followed the European steps. According to diffusion theory, however, we can assert in which manner this diffusion happened.

Furthermore, we can view as Jetschke & Lenz (2013, p. 362) imply, that Latin American institutions have ties with the European Union. It creates the opportunity to share experience unfolding a process of diffusion by learning, as mentioned earlier. Academics classify the Andean Tribunal of Justice as a clear example of emulation by learning. (Börzel & Risse, 2012, p. 2) (Alter, 2012) (Alter & Helfer, 2010) (Alter, Helfer, & Saldías, 2012, p. 662). Moreover, regarding lesson-drawing, I defend as stated earlier, that Mercosur also copied some European

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features based on a process of diffusion by learning. To support this idea and refuse that Mercosur purely emulated European Union’s institution is the fact that: even though Mercosur sought guidance by the EU, resulting in convergence in institution designs, Mercosur also departed from the EU and emulated other organizations that would better fit their purpose. Hence, the first example is considered passively learning, and the last, active learning.

According to (Jetschke & Lenz, 2013, p. 632), diffusion by competition frequently happens in the region. The regional integration organizations in Africa, Latin America and in Asia all seek for Foreign Direct Investment (FDI) from the European Union, the United States and from Japan. Therefore, it is likely that these organizations have similar institutions for the regulation of the FDI. Especially between the CARICOM member states where growth and development depend very much on FDI (Mohan & Watson, 2012) (Elkins, Guzman, & Simmons, 2006).

Regarding the third type of diffusion, Lenz (2012, p. 161) claims that Mercosur’s common market emulated the European Community’s common market. The author also draws attention to the fact that, about the same period, the United States was announcing its intentions on creating a hemispheric free trade area. Despite this big initiative, Mercosur adopted the European Community’s institutional model, opting for what was seen as a solid economic choice that reinforced the community-building ambitions of both Mercosur’s and European Community’s. Moreover, Lenz found, by interviewing agents that participated in the Mercosur’s process first-hand, that initially, there was a general idea to copy the European institutions without detailed studies concerning the technicalities, consequences and the cost and benefits of doing so. Instead, it was very much driven by political enthusiasm and not real planning (Lenz, 2012, p. 162). Also, the same author, about Mercosur’s Dispute Settlement Mechanism (DSM) claims that the Southern American institutions emulated elements of the ECJ and of the World Trade Organization’s (WTO). Nonetheless, Lenz adds that this emulation took place in order to give a response to a declining integration process that was undergoing the wakening of an economic crisis. (Lenz, 2012, pp. 164-165).

Using diffusion theory, this section has discussed why and how institutional change occurs, with a special focus on three selected Latin American organizations. Also, the author observes the existence of at least two subcategories under diffusion by learning in which diffusion may occur. It seems evident that organizations are inserted in a social environment in which they interact with each other. These influences generate institutional change. However, does this diffusion dynamics guarantee efficiency?

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3. Diffusion’s efficiency and Legalization Theory

Scholars have put some importance on the role of institutions (Acemoglu & Robinson, 2012) (Rodrik, Subramanian, & Trebbi, 2002). Nonetheless, analyzing these diffusions we see how similar some institutions are and how different the outcome of these same institutions are. Hence, it is clear that despite the transplantation of institutions, the results are not necessarily the same, and therefore, institutions do not have the primacy of development generation.

Diffusion theory’s proponents naturally recognize this puzzle. (Börzel & Risse, 2012, p. 2) observe that although Asia and Latin American were influenced by European institutions, “they are not becoming like Europe” (ibid). The authors also state that “simply ‘downloading’ institution design from one context to another is likely to lead to less behavioral compliance with the rules and regulations than active adaptation and alteration of institutional features to a given domestic or regional context” (Börzel & Risse, 2012, p. 4). Furthermore, (Alter, Helfer, & Saldías, 2012, p. 634) state that “legal transplant succeed only where they respond to local demand and where they adapted to local needs” (ibid). Alter (2012, p. 145) adds that copying an institution design is “neither necessary nor sufficient”. Thus, we can assert that all these authors have recognized the puzzle behind diffusion. Which is: why institutional diffusion does not necessarily generate development, or in this case, more integration?

Answering this problem, academics such as (Abbott, Keohane, Moravesik, Slaughter, & Snidal, 2000) claim that the degree of integration in one regional integration organization will depend on the degree of legalization of its institutions. (Krapohl, Dinken, & Faude, 2009) add that in addition to the legalization degree, social and economic demand is necessary to generate judicial integration.

Legalization, therefore, is the theory conceptualized by (Abbott, Keohane, Moravesik, Slaughter, & Snidal, 2000) in which is defined as “a particular set of characteristics that institutions may (or may not) possess” (Abbott, Keohane, Moravesik, Slaughter, & Snidal, 2000, p. 401). These set of characteristics are precision, delegation, and obligation. According to the author, the degree of compliance with these elements will generate a more or less legalized institution, ultimately determining the likelihood of generating integration or not. Hence, legalization is considered by the author as the legal precondition for judicial integration, and consequently, for regional integration.

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In this sense, precision is understood as “rules unambiguously define the conduct they require, authorize, or proscribe” (Abbott et al. 2000, p. 401). In other words, precision means that as more precise, descriptive and detailed the rules and norms are, the less space the court-like bodies will have to interpret the rule in favor of more regional integration,. Thus, the courts will have less chance to contribute to the integration process (Krapohl, Dinken, & Faude, 2009, p. 5).

The second dimension, delegation is viewed as “third parties have been granted authority to implement, interpret, and apply the rules; to resolve disputes; and (possibly) to make further rules” (Abbott et al. 2000, p. 401). Delegation means that in a regional integration organization, a body gained enough power to interpret, solve disputes and reinforce the compliance of the organization’s rules by its members. Some indicators can be distinguished for this element such as: first, who have access to this mechanism? Only the member states or private litigants are also allowed? Second, the degree of independence is also important in order to assert the degree of delegation. And third, the implementation of these rulings. Are they just recommendations or it demands direct implementation by national courts? (Krapohl, Dinken, & Faude, 2009, pp. 5-6). Furthermore, according to Abbott et al. (2000), the higher the degree of delegation and independence, the easier the access to these mechanisms is. In practical terms, it means that in case of a dispute between member states, one will accept more easily a decision of this court-like body if the court is more independent from the member states and there is no reason to think that another member state influenced the decision. Moreover, as academics such as (Alter, 2012) (Alter, Helfer, & Saldías, 2012) and (Lenz, 2012) and as institutions such as (INTAL, 1972) observed, the greater the access to this mechanism, including the possibility of private litigants to present charges, the greater the potential for judicial integration.

The third and last dimension of legalization is obligation. Abbott et al. (2000) define it as “states or other actors are bound by a rule or commitment or by a set of rules or commitments” (Abbott, Keohane, Moravesik, Slaughter, & Snidal, 2000, p. 401). That means that the degree of obligation has to do with how obligated the member states are to comply with the organization’s rules or the community law. Hence, it has to be binding for the member states. “such obligation may range from non-binding recommendations on the one hand to the supremacy and direct effect of regional rules on the other hand” (Krapohl, Dinken, & Faude, 2009, p. 5). Moreover, the more binding the rules are, the more the potential for the region to integrate. If international courts’ rulings are higher in the hierarchy than the domestic courts, there is no room for national

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tribunals to interpret the organization’s rules and norms and causing transnational dispute over the implementation of the same rules (ibid).

According to Abbott et al. (2000), the interplay between these elements generates more or less likelihood for integration. On one extreme, when all three elements are maximized, it generates the “ideal type” of legalization. When at least obligation and delegation degrees are considered high, the institution can be considered “hard” legalization. When multiple combinations of partial legalization exist, it is considered “soft” legalization. And finally, on the other extreme, when there is a complete absence of legalization, generating another ideal type. (Abbott, Keohane, Moravesik, Slaughter, & Snidal, 2000, pp. 401-402). Krapohl et al. (2000) synthesize the idea in “The basic hypothesis of the legalization concept is that where precision is low, and obligation and delegation are high, judicial integration is also high” (Krapohl et al. 2000, p. 6).

Established the foundations for the dynamics underlying judicial integration, scholar discussed to what extent the theory reflects reality. (Kahler, 2000, p. 683) suggests that legalized institutions are not necessary. Rather, it is an institutional choice that organizations can study and determine if make sense or not for them to have legalized institutions. However, according to the author, institutionalization may occur without legalized institutions such as the Association of Southeast Asian Nations (ASEAN) have supported some norms and behavior even though with a not so high degree of legalization (Kahler, 2000, p. 662). The author also exemplifies by using the cases of central banks in the advanced economies where collaboration do not depend on legalized institutions (ibid). Moreover, the author argues that despite the advantages that legalized institutions offer,3 governments have to account the costs that legalization poses, such as sovereignty cost and the costs based on future uncertainty. Kahler (2000, p. 666) observes that dispute settlement mechanisms are more likely to be less legalized when the member states under this DSM are too different. Therefore, when there is an asymmetry between the players.

On another front, Krapohl et al. (2009) building on the legalization theory, tested the legalization hypothesis to NAFTA and Mercosur. According to this work, even though Mercosur had a moderate level of delegation and obligation and a low level of precision, thus, on the theory’s right path, the outcome of this institution was not leading to more integration. NAFTA, on the contrary, have a high level of precision, – large and very precise agreement –

3_{One of the advantages that the author mention is directly related to the subject explored here. Kahler (2000, p.}

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a low level of delegation, – it did not even have a permanent independent body – and a low level of obligation – since the rulings of the ad hoc tribunal had to be accepted first in the domestic judicial order to be implemented – and were used more often than the Mercosur’s DSM and generated more robust law cases. The authors concluded, therefore, that besides the legalization factors to be pointing in the right direction, it is necessary to have a social and economic demand to further judicial integration and consequently, regional integration (Krapohl, Dinken, & Faude, 2009, p. 25).

(Finnemore & Toope, 2001) heavily criticize Abbott et al. (2000) work and point out a series of misconceptions and weakness. According to the authors, the proponents of the legalization theory start with the mistake of appropriating the general idea of legalization to few elements of law and wrongly narrowing all the role of law in world politics into these three elements. (Finnemore & Toope, 2001, p. 745). Furthermore, Finnemore and Toope claim that these three elements lack theoretical coherence. We understand, however, that although the elements of law are limited, this concept of legalization does not apply to general contexts. Abbott et al. (2000) conceptualized these elements bearing in mind the issue of regional integration. It is clearly stated in their volume that legalization theory is related to the degree of integration. Hence, although the criticism is valid and Finnemore and Toope (2001) point out to relevant facts,4 one has the sensation that the authors try to apply to a generality of context a concept that was designed for limited contexts.

Presented our theoretical framework, and our independent variable, (degree of legalization) we will in then, analyze the selected cases in order to find their degree of legalization and its relation to our dependent variable (degree of judicial integration).

4. Judicial Integration in Mercosur

Mercosur is one of the most ambitious regional integration projects in Latin America. While some organizations in the region only seek for creating a free trade area, this organization seeks for a deeper and more complex goal. In its founding document, the Treaty of Asunción, it is

4_{Such as the fact that Abbott et al. (2000) focus too much on formal institutions and as (Finnemore & Toope,}

2001, p. 746) state: “Political scientists have understood for decades that formal institutions do not capture many of the most important features of politics”, which may be considered at least, partly correct. Informal institutions also play a great role.

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repeatedly mentioned the intention to create a common market, a customs union and to integrate regionally (MERCOSUR, 1991, art. 1).

Although its primary goal – to create a common market until 1995 – was not reached, and is still yet to be reached, the organization was created, developed and expanded. As Lenz (2012, p. 168) (Vinuesa, 2006, p. 79) and (Araujo, 2001, p. 35) point out, in the early 2000s disputes between member states proliferated and the Protocol of Brasilia,5 as a dispute settlement mechanism, had to be updated. Therefore, in 2002 was signed a new protocol. The Protocol of Olivos entered into force in 2004. It was created to respond to economic difficulties lived by the member states and to further integration in the region (Lenz, 2012, p. 168) (Krapohl et al. 2009).

Mercosur’s dispute settlement mechanism initially, when ruled by the Protocol of Brasilia, followed the GATT lines, but when updated, took a model more similar to the European Court of Justice establishing a court-like body – “based on the principles of economic inequality and legal equality” (Lenz, 2012, p. 167). The DSM can be used in the form of Ad Hoc Tribunals (as a type of first instance tribunal) or recurring to the Permanent Review Tribunal (which can be seen as a second instance tribunal with the force of res judicata6). However, we observe that most scholars may be misled by the court’s name resulting in a misunderstanding on the court’s delegation degree. As (ECLAC) draws attention, despite the fact that Mercosur’s Tribunal is called ‘Permanent Review Tribunal’, in practical terms, the judges do not sit permanently but are summoned when necessary. As a result, in the last ten years, they only produced one ruling and three clarification of questions.

4.1. Legalization in Mercosur

Accounting the previous, we see the necessity to reanalyze the legalization degree of the institution. Although it is clear that there was an improvement on the delegation degree from the Protocol of Brasilia to the Protocol of Olivos, we see that its effectiveness and independence are rather still limited. In the case of the Ad Hoc Tribunals, the judges are only summoned if the parties involved in the dispute are the same as their nationalities or if the judge is drawn to preside the case. However, the parties involved can still agree on summoning a foreigner

5_{Mercosur’s first dispute settlement mechanism. This protocol was a complementary document to the Asunción}

Treaty.

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chairman7 (MERCOSUR, 2002, Art. 10). Hence, we see that the nationality criteria to choose the arbitrators make the decision less robust and less credible. We observe that the judges representing the parties will tend in favor of his country as happened in the only two Ad Hoc cases following the new protocol, (Laudo del Tribunal Arbitral Ad Hoc del Mercosur, 2005) and in (Laudo del Tribunal Arbitral Ad Hoc del MERCOSUR, 2006). Regarding the Permanent Review Tribunal, as mentioned before, the judges do not sit permanently in the tribunal8, and therefore, only work for the Tribunal in a type of part-time job. Hence, academics have advocated for a need for an actual Permanent Court of Justice in Mercosur (Giupponi, 2012, p. 716) (Perotti, 2008). This tribunal can be considered then, as a sophisticated second instance

Ad Hoc Tribunal9. Furthermore, the number of cases presented are small and the judge’s mandate is of only two years, it is possible that a judge never takes part in a case during his or her mandate. Moreover, a judge can stay in the same position to a maximum of six years, while in the European counterpart, a single mandate is of six years. But most importantly, as will be analyzed in greater detail later in this paper, the only case judged in the PRT in the last decade – regarding the entry of Venezuela and suspension of Paraguay in face of the Ushuaia Protocol – had a very controversial result, which can undermine the independence of this tribunal. In face of these facts, considering that the independence and effectiveness of the Ad Hoc Tribunals and the Permanent Review Tribunal are compromised, we regard the degree of delegation, in the best case scenario, as ‘Low to Moderate’. In this sense, we depart from the considerations made by Krapohl et al. (2009, p. 22).

Regarding the obligation degree, we have to account that the Ad Hoc tribunal’s decisions and the PRT’s decisions are binding and, as stated in their ruling, has an immediate effect (MERCOSUR, 2002, Art. 26). In case a member state refuses to comply with the decision, the harmed party can apply compensatory measures. As stated in the (MERCOSUR,2002, Art. 27), if a compensatory measure is applied against the party that did not comply with the ruling, this party still have to comply with the decision. Furthermore, as pointed out before, the Ad Hoc

7_{The last Ad Hoc tribunal took place in 2006. It was a case between Argentina and Uruguay. Interestingly the}

parties involved agreed on summoning a Spanish arbitrator to preside the case.

8_{As an example, the Brazilian judge in the ruling n.1/2012 (Laudo del Tribunal Permanente de Revisión en el}

Precedimento Excepcional de Urgencia, 2012) Mr. Welber Barral, also worked in two other positions in the private sector during the same period as the tribunal’s decision. In the official PRT’s webpage the arbitrator is presented and his resumé is available. (Permanent Review Tribunal, s.d.) Nevertheless, it is incomplete. However, in its personal LinkedIn profile and in BMJ Consultores Associados’ webpage one can see that in 2012 he also worked for Amcham-Brasil and for BMJ Consultores Associados. (Barral, s.d.) (BMJ Consultores Associados, s.d.).

9_{In fact, Vinuesa argues that “As the goals for a common market have not been reached, the Protocol of Olivos}

should not be considered as the permanent system to be adopted in conformity with Annex III of the Treaty of Asunción” (Vinuesa, 2006, p. 79), which means that the author not only reject the PRT as permanent tribunal but the Protocol of Olivos as a whole.

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Tribunals are in somewhat a first instance tribunal, and therefore, the decisions of these tribunals can be appealed. In this case, compliance with the decision would be suspended until a further decision from the Permanent Review Tribunal (MERCOSUR, 2002, Art. 29). Ultimately, in case it is necessary to apply compensatory measures to the non-compliant party, there is a whole chapter in the Protocol of Olivos explaining to what extent and scope the compensatory measures can be applied (MERCOSUR, 2002, Art. 31-32). Therefore, according to the articles presented, the decisions are binding and it starts to have effect at the moment determined by the court. If no date is explicitly given in the decision, it enters into force in 30 days after the communication of the decision. (MERCOSUR, 2002, Art. 29). Although Krapohl et al. (2009, p. 21), point out two relevant facts that conditionate the degree of obligation in this institution. First, there is no supremacy of the Mercosur’s tribunal over the national tribunals. Thus, most of Mercosur’s law has to be incorporated into national legislation before having effect, making community law hard to follow if there is no political will. Second, there is no difference between primary legislation and secondary legislation, meaning that the protocols, treaties, and rulings have the same force. Alter (2012, p. 145) claims that copying an institution is “neither necessary nor sufficient” because what plays a bigger role on shaping the number of cases presented to an international court is secondary legislation. Taking into account the Protocol of Brasília and the Protocol of Olivos, we observe that again there is an improvement from one to the other. To ensure that the state party that has to comply with the decision actually follow the decision, it has 15 days after the decision to inform the other member state in the dispute and the Common Market Group (CMG) of what measures are being taken in order to comply with the ruling. (MERCOSUR, 2002, Art. 29.3). Lastly, we observe a major aspect that weaken the obligation degree of the organization. In the founding document, the Treaty of Asunción, the member states agreed to create a common market that should be completed by 1995, nevertheless, even though this goal is clear in the treaty, it was never reached, demonstrating that the member states after 28 years still legislate in order to get around the treaty and not to follow its main objective. In this sense, we regard the degree of obligation of this institution, in the best case, as moderate. Equally as Krapohl et al. (2009, p. 21) classified.

Finally, to analyze the degree of precision of the Permanent Review Tribunal, we consider the Treaty of Asunción, the Protocol of Brasília in comparison with the Protocol of Olivos, the protocol that altered the Protocol of Olivos in 2007, the Protocol of Ouro Preto, the Protocol of Ushuaia and the decisions, resolutions and guidelines determined by the Common Market Group, the Market Commission and the Common Market Council. Krapohl et al. (2009, p. 21)

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draw attention to the fact that in 2009 the organization approved an average of 120 decisions, resolutions and directives. Today this number has had a small increment to 125, which shows that the precision degree was gradually increasing ten years ago and now it is increasing slightly faster than before. That means that the institutions are getting increasingly more precise10. Moreover, the Treaty of Asunción clearly lacks concrete precision of how to operationalize the intentions and mechanisms that it foresees. Lenz (2012, p. 162) draws attention to the fact that Mercosur was too much based on political enthusiasm and lack technical basis. Krapohl et al. (2009, p. 20) also point out that the Treaty is too general. We believe that according to the concept of legalization, it is important to have a low degree of precision so the judicial-like bodies can build their own understanding of the subject. Nonetheless, the Treaty of Asunción is almost abstract. It is at best, a list of wishes or principles that does not specify any particular procedure. Bearing in mind that Mercosur’s decisions are not divided into primary and secondary legislation like the European Union, it actually makes the path towards constructing a regional integration project more difficult. Hence, the agents have no guideline to follow. The Protocols, norms, and directives that followed the Treaty of Asunción are more precise. Analyzing the degree of precision of this institution, we observe that, not as Abbott et al. (2000) imply, the degree of precision is not as good as low it is. We defend that there is an optimal margin. The degree has to be precise enough to give a base to the institution but broad enough to leave space for interpretation, and consequently, to give tribunals the possibility to build good law cases and contribute with community law. Although Abbott et al. (2000, p. 414) recognize that some institutions are so imprecise “that one cannot meaningfully assess compliance”, they argue that this is a conscious decision by the actors involved. The authors imply that the actors bear in mind the consequences of this decision. In Mercosur, however, the Treaty of Asunción only delegate to eventual complementary legislation certain area issues, such as dispute settlement. Consequently, we observe that Mercosur is a case where the document that should be the most important (the Treaty of Asunción) is too broad not giving guidelines to the integration process – which could be one of the reasons why legalization, or the lack of it, is not leading to more integration – while the complementary documents are not enough to generate integration. Thus, accounting the number of norms, directives and resolutions produced, the treaties, and protocols and an optimum margin of precision, we regard the degree of precision as low to moderate.

10_{One can observe this tendency in Latin American countries where the law often is too precise leaving small}

room for judicial interpretation. As an example, one can observe the case of Brazil where legislator propose a range of laws that could be left opened for interpretation and have a bigger negative freedom.

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In sum, with a low to moderate degree of delegation, a moderate degree of obligation and a low to moderate degree of precision, we understand that this institution has, according to the concept of legalization, a type of soft legalization. It is clear that this institution is not in the right direction to integrate. With a low to moderate degree of precision and a moderate degree of delegation, there is a vacuum of judicial power to reinforce community law, resulting in a not robust nor credible DSM.

4.2. Mercosur’s DSM functioning

In Krapohl et al. (2009) it is concluded that legalized institutions are not enough to promote integration. Lenz (2012) also recognize the importance of social and economic demand although focuses on the relevance of secondary legislation. Regarding Mercosur specifically, authors claim that the countries that compose the group prefers to settle their disputes directly in an informal way through direct negotiations (Krapohl et al. 2009, p. 23) (Lenz, 2012, p. 167) (Malamud, 2003). Furthermore, this tendency is foreseen in form of law in (MERCOSUR, 2002, Art. 4) where the document actually encourages and determine that the member states firstly have to establish direct negotiations to settle a dispute. Although giving the opportunity for member states to negotiate directly may approximate these countries, we understand that it takes away the possibility of courts to create consistent law cases and to increase community law through their rulings.

Moreover, another feature that has marked negatively the functioning of Mercosur’s DSM is the fact that private litigants cannot challenge community acts in front of the Permanent Review Tribunal or an Ad Hoc tribunal. Although Krapohl et al. (2009, p. 22) claim that it is possible, we depart in this interpretation. According to the chapter XI of the Protocol of Olivos, a private litigant has to communicate an eventual problem with the national section of the Common Market Group and this section will contact the national section of the Common Market Group of the country to which the offense is attributed. These two sections will then start consultations and negotiations in order to find a solution to the complaint. In case no solution is reached in 15 days, the case is brought to the Common Market Group to solve the dispute (MERCOSUR, 2002, Art. 41). The Common Market Group will, in this case, summon a group of experts to produce an opinion in 30 days. (MERCOSUR, 2002, Art. 42). The case, therefore, will result in an opinion and not in a decision by a tribunal. Consequently, this opinion is not binding (Vinuesa, 2006, pp. 78-79). Moreover, in Krapohl et al. (2009, p. 22) the authors use two cases

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judged in Ad Hoc tribunals to support their claim. Nevertheless, these two cases followed the Protocol of Brasilia that was no longer into force by the time of their analysis. But most importantly, the decisions never mention the role of private litigants. Both cases only mention that they were cases initiated in the Common Market Group. The parties in both disputes were member states. One case between Argentina and Brazil and the other between Uruguay and Brazil. Therefore, for a case initiated by a private in the national Common Market Group section to be judged in an Ad Hoc tribunal, it depends on political will of Mercosur’s body as mentioned by Krapohl et al. (2009, p. 22), but also depend on the political will of the member state to present charge itself to Mercosur’s judicial bodies (Vinuesa, 2006, p. 86). Otherwise, a case presented by a private will only result in an opinion produced by a group of experts. Hence, not binding for member states and will never reach a judicial decision.

Although Mercosur is informal on settling disputes, opting for more direct negotiation, we observe that over the last decade the member states presented several charges in other international dispute mechanisms. During the same period analyzed in this paper, Brazil pressed nine charges in front of the WTO dispute settlement mechanism, in which one against Argentina. Argentina presented seven other cases in the same tribunal, one complaint against Ghana in the International Tribunal for the Law of the Sea, and curiously, started a dispute with Uruguay in the International Court of Justice (ICJ). In this sense, we depart from Krapohl et al. (2009) when claiming that these countries are reluctant to solve their disputes in front of a court. We defend that, in fact, there is a clear preference for other dispute settlement mechanisms other than Mercosur’s. The case n. 1/2006 of the Mercosur’s Arbitral Tribunal between Uruguay and Argentina and the cases between Argentina and Uruguay in front of the ICJ and between Brazil and Argentina in front of the WTO are clear cases of mistrust in the Mercosur’s dispute mechanisms and preference for others.

4.3. Law cases in Mercosur

In the last decade, the tribunals of Mercosur – the Ad Hoc or the Permanent Review Tribunal – only had one case to judge. The case number 1 of 2012 was a complain initiated by Paraguay regarding its suspension from Mercosur in light of the Protocol of Ushuaia – Protocol that establishes democracy as a condition to be part of Mercosur – and the entry of Venezuela as a full member of the group.

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According to Paraguay, the impeachment of its president was a process foreseen in their constitution, in the article 225. Furthermore, Paraguay argues that the decisions were taken in a meeting of member states’ presidents which is neither a Mercosur body (MERCOSUR, 1991) nor a source of law (MERCOSUR, 1994). Paraguay’s arguments had a convincing legal basis to support their claims while Brazil, Argentina, and Uruguay have considerable weaker arguments such as the claim that the PRT is meant to settle trade-related disputes only. In addition, the decision of accepting Venezuela as a democratic country and denying that Paraguay’s impeachment process is legit seems contradictory. Especially because Article 4 of the Protocol of Ushuaia determines that Mercosur has to investigate and consult the institutions of the alleged non-democratic country in order to suspend or not the member state. Such a process was not done.

The decision of the PRT, in this case, benefited the group of countries that had worst arguments. The PRT refused the argument that it did not have jurisdiction to judge the case but also refuse Paraguay’s request to be directly judged by the PRT. The tribunal understood that Paraguay was suspended, and therefore, did not have the right to use Mercosur DSM (Laudo del Tribunal Permanente de Revisión en el Precedimento Excepcional de Urgencia, 2012, p. 16). In sum, the tribunal’s decision demonstrate its intentions of not losing power and maintaining their relevance in Mercosur – when decided that it had jurisdiction over the case – but clearly demonstrated that it was inferior to head of governments and its decision was politically-driven (Jatobá & Luciano, 2018). Nonetheless, the decision favored Argentina, Brazil, and Uruguay. This not consistent case is a clear sign that the tribunal’s independence is limited. Hence, the degree of delegation cannot be considered high.

4.4. Conclusions about Mercosur’s integration

In this section, we have analyzed our independent variable (the degree of legalization) in Mercosur in order to observe its influence on our dependent variable (judicial integration).

Testing Abbott et al. (2000) legalization theory in Mercosur we have found that, firstly, the delegation degree of its dispute settlement mechanism cannot be regarded as ‘high’. Accounting the literature on the Permanent Review Tribunal (Vinuesa, 2006) (ECLAC) (Giupponi, 2012) and our own analysis of the official Mercosur’s documents (MERCOSUR, 2002) (MERCOSUR, 2007) and law cases (Laudo del Tribunal Arbitral Ad Hoc del Mercosur, 2005) (Laudo del Tribunal Arbitral Ad Hoc del MERCOSUR, 2006) (Laudo del Tribunal Permanente

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de Revisión en el Precedimento Excepcional de Urgencia, 2012) we understand that the effectiveness and independence of the DSM is limited, lowering its delegation degree.

Secondly, the tendency for informality and the impossibility for privates to present charges in front of an Ad Hoc tribunal or the PRT weakens Mercosur’s capacity to integrate. Furthermore, regarding the proposition that Mercosur’s member states traditionally prefer not to settle disputes in front of courts (Krapohl et al. 2009, p. 23), we observe that the lack of demand can be seen as a result of the lack of robustness of the DSM. To support this claim, we argue that in the same period that Mercosur only had one law case to judge (from 2009 to 2019), its member states presented 18 cases in other international courts. Including a case between Argentina and Uruguay in the ICJ and a case between Brazil and Argentina in the WTO. In addition, the case n. 1/2006 where the parties chose a Spanish judge to preside the case, demonstrates a mistrust between members. These facts show that there is a clear avoidance of Mercosur’s mechanisms.

Hence, we conclude that Mercosur is not integrating judicially because its judicial institution is not as legalized as regarded by Krapohl et al. (2009). Moreover, we claim that the judicial institution is so weak that discourage its member states to use it, creating this lack of demand. Consequently, it is not possible to develop consistent law cases. The declining quality of the institution and of the few law cases settled leads to the presentation of even fewer law cases. Ultimately, leading to its own obsolescence and harming its integration capacity.

5. Judicial Integration in the Andean Community

The Andean Community represents one of the earliest attempts of regional integration in the Latin American region. It was created in 1969 with the Cartagena Agreement establishing the Andean Pact11. In the founding document, it is stated that the member states jointly took this initiative in order to develop economically, socially, to reduce the countries’ external vulnerability and to gain force in the international stage (Comunidad Andina, 1969). Currently, it is comprised of Bolivia, Colombia, Equator, and Peru12.

11_{Later amended by the Protocol of Trujillo in 1996.}

12_{Originally the Agreement of Cartagena was signed by Bolivia, Chile, Colombia, Equator and Peru. Nevertheless,}

Chile withdrew from the Andean Community during Pinochet’s dictatorship. It was argued that there was economic incompatibilities with the Chilean economic plan at the time.

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The Andean dispute settlement mechanism was first established in 1979 under the Tratado de

Criación del Tribunal de Justicia del Acuerdo de Cartagena. Alter et al. (2012, pp. 642-643)

explain that from the creation of the Andean Pact, all the Andean law was put into force through presidential decree, avoiding the legislative procedure. Nevertheless, in 1971 a case was presented to the Colombian Supreme Court challenging the treaty. The case was dismissed by the Court but in the next year, a new lawsuit was presented to the same court arguing that the Colombian constitution prohibited the implementation of the Andean investment code through presidential decree. In this second case, the Supreme court accepted the argument and claimed that the code could only be established by the parliament. This two cases became a driving argument for those in favor of the creation of a supranational court (Alter et al. 2012, p. 643). Hence, in 1972, the Andean Community sought the guidance of the INTAL to evaluate and research which type of tribunal would best fit the purpose of the Andean bloc (ibid).

5.1. Legalization in the Andean Community

In order to analyze the degree of legalization of the Andean Community’s dispute settlement mechanism, we start by analyzing the delegation degree. Thus, based on the Treaty of creation of the Andean Tribunal of Justice amended by the Protocol of Cochabamba, and based on the Rules of Procedure of the General Secretariat of the Andean Community, we observe that the Andean Tribunal of Justice (ATJ) is the highest judicial body in the Andean Community. It has the power and responsibility to review, the decisions, resolutions, and directives of the Andean Council of Foreign Ministers, the Andean Commission, and of the General Secretariat. The Andean Tribunal of Justice can even declare the nullity of their decisions.

The Andean dispute settlement mechanism is composed of two instances, like Mercosur’s, though these instances have different responsibilities. The General Secretariat is the executive body and has an investigative duty. By its initiative or by the presentation of claims by others, this body has the power of investigate acts that supposedly infringe the Community law and provide resolutions for the complaints (Comunidad Andina, 1997, Art. 1). As the second and last instance, The Andean Tribunal of Justice, as stated before is the highest judicial body and its decision cannot be appealed. Their decisions are considered res judicata. There is, though, a relation between the General Secretariat and the ATJ. The General Secretariat has the duty to investigate and to attempt to provide a resolution for the cases presented. However, in certain situations – as the situation foreseen in (Comunidad Andina, 1996, Art. 24) – the General

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Secretariat has to seek guidance from the Court. It clearly demonstrates the supremacy of the Court over the other Community bodies and the complementary role of the General Secretariat to the Court.

Each judge – and first and second alternate – are presented by one of the member states for a period of six years with the possibility to renew its mandate for the maximum of six more years (Comunidad Andina, 1996, Art. 8), like in the European Tribunal. Moreover, departing from the case of Mercosur, the article 6 of the same document clearly state that “They [the judges] may not perform other professional activities, either paid or free of charge, except for teaching” (Comunidad Andina, 1996, Art. 6).

In this sense, we observe that the Andean Tribunal of Justice is more independent and more effective than Mercosur’s Permanent Review Tribunal. There is a clear hierarchy in the Andean judicial order that puts the Court in a high position while also gives room for communication with other bodies, namely the General Secretariat. Due to its clear independence from the other powers, namely the Commission and the Council, a politically-driven decision is less likely to occur13. Furthermore, due to the length of the judge’s mandate and the article 6 of the (Comunidad Andina, 1996) that exclude the possibility for the judge to work elsewhere, we defend that this Court is an actual permanent tribunal, and therefore, has the precondition to build robust and credible law cases. Moreover, the Cochabamba protocol gave even more independence to the Andean Tribunal, as recognized by Alter et al. (2012, p. 659) when gave the Tribunal the possibility to guide national tribunals to interpret Community Law. Finally, bearing in mind that the tribunal has an investigating body to provide more and better information to build on – the General Secretariat – we regard the degree of delegation of this DSM as high.

Concerning the obligation degree, we have observed that the reality does not match with the foreseen in the official documents. According to the Protocol of Cochabamba, decisions of the Andean Council of Foreign Ministers or Commission of the Andean Community become binding the day the decisions are published in the Official Gazette of the Agreement without national ratification. It only requires national ratification when clearly stipulated in the text. (Comunidad Andina, 1996, Art. 3-4). Nevertheless, Alter et al. (2012, p. 658) draw attention to the case that took place in Colombia. According to the author, various challenges were

13_{Hence, a case in which the head of governments, in a summit, suspend a member state and grant entry to another}

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presented to the Colombian Constitutional Court arguing that certain Colombian authorities were not following Andean law. The Tribunal dismissed the charges arguing that since the Colombian constitution and Andean law did not share the same hierarchy, and consequently, Andean law was considered the same as domestic law. Alter et al. (2012) also point out that in all cases in which the ATJ conflicted with domestic law, it never guided the member state’s tribunal of how to apply community law, except for one case settled in 1998. (Alter et al. 2012, p. 659). Thus, although the Tribunal is in a clear high and independent position when faced conflicts with national law, it was never able to reinforce Andean law.

Moreover, the Andean law foresees the implementation of corrective measures for those who fail to comply with the decisions and law. According to (Comunidad Andina, 1996, Art. 27) If a member country fails to comply with its obligations, the Tribunal, after hearing the opinion of the General Secretariat, can establish a partial or full restriction or suspension of the member state’s benefits under the Cartagena Agreement, i.e. the court can decide for the suspension of a country from the Community. This mechanism can be seen as an incentive to comply with the community’s duties.

Furthermore, we have observed in the literature that the community has produced a high number of binding rulings per year what support a consistent and robust community law (Alter, 2012, p. 144). Therefore, bearing in mind the judicial structure of the community, the relevance the Court has had to reinforce community law, but also taking into account the case between the Colombian Constitutional Court and the Andean Tribunal of Justice, we regard the degree of obligation of the ATJ as moderate to high. It is clear that the system is well constructed and the ATJ has a great role in the Community. Nevertheless, we observe that not like the ECJ, the Andean Tribunal did not understand completely its role in the integration process and have failed to guide domestic Courts to apply community law.

Regarding the level of precision, it is clear that the founding document is distinctively longer than Mercosur’s14. The Treaty of Assunción is composed by 24 articles and 3 annexes, while the Treaty of Cartagena and its amendments are composed by 139 articles and two small annexes and the Treaty of Rome amended by the Treaty of Nice is composed by 314 articles and one annex. Moreover, the Cartagena document delegates legislation to complementary documents, being protocols or agreements. As an example, relatively to the ATJ or to the

14_{Although, if one consider the Annexes of the Treaty of Assunción, the whole document becomes not so short,}

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Andean Parliament, it only has two articles for each. However, it delegates the rules to complementary protocols and internal rules. The Treaty of Cartagena is not as broad as the Treaty of Assunción. The first article of the document clearly aims at a goal perceived to be of common interest of all the member states, while the second and third articles give the guidelines of how to reach this goal – through cooperation in the industry, tourism, technologic and scientific development, etc. Moreover, the founding treaty is the more precise treaty established in the Andean Community. Both the Treaty of creation of the Andean Parliament and the Treaty of creation of the ATJ is considerably shorter, having 21 articles and 45 articles, respectively.

The protocol themselves, are also not very precise, again, delegating responsibility to complementary codes. All the protocols are amendments to the treaties. The longest and consequently, more precise protocol is the Protocol of Sucre that amends the Treaty of Cartagena. It rectifies 49 articles.

Nonetheless, we observe in the literature that although the documents are not very precise and it takes some time to create consistent law cases, – increasing the level of precision – the ATJ has increasingly produced more binding rulings (Alter, 2012, p. 144). From 1984, the year of the first binding ruling of the Andean Tribunal of Justice, the number of binding rulings per year has sky-rocked, reaching a peak of 160 rulings per year. In addition, the degree of precision has been increasing due to the number of binding resolutions, decisions, and directives produced by the other Andean bodies, such as the Commission, the General Secretariat, and the Council. Hence, despite the increment of binding rules, analyzing the documents, we understand that the degree of precision is low to moderate. The high number of rules created by the bodies of the Community follows the principle of legality, thus, all their rulings are the result of low precision. The various rulings are the result of not precise treaties and protocols.

Regarding our independent variable, we observe that the degree of legalization of this organization, according to Abbott et al. (2000, p. 406) classification would be a type of ‘Hard’ legalization between the type II and the type VI. The Andean Community’s DSM is considered ‘High’ in delegation, ‘Moderate to High’ in obligation and ‘Low to moderate’ in precision. Consequently, according to the legalization theory, these elements, therefore, point the judicial bodies of the Andean Community to a direction where we should see a good inclination to judicial integration.

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Although these countries have relatively young democracies, such as the Mercosur’s countries, they display a greater inclination to use judicial bodies to settle disputes. In the same period that Mercosur’s member countries only pressed a combined of 19 charges in front of a court, the Andean actors presented hundreds of cases in front of the court and the member states were involved in 64 cases inside the Andean Community or in other International Tribunals. Of these cases, 55 were presented in front of the General Secretariat and the Andean Tribunal of Justice15. Hence, against what was argued in (Krapohl et al. 2009, p. 23), the fact that these countries’ democracies are young is not a factor determinant for them not to use a judicial body to settle disputes16_{. We observed that of these 55 cases presented in the Andean Community in}

the last decade, Bolivia was directly involved in around 12.5%, Colombia 30%, Peru was also involved in around 30% of the cases and the Equator in some 27.5%. Being more evenly distributed than the total of the presented claims of the Mercosur countries.17

Furthermore, we notice that according to the (Comunidad Andina, 1996, Art. 47), the member states of the Andean Community cannot use other dispute settlement mechanisms for the cases arising inside the Andean Community. As argued before, the possibility to use other DSMs undermine the capacity of the community tribunal to build consistent law cases and generate greater judicial integration, and therefore, harms the delegation degree, and consequently, the obligation degree, of the judicial institution. In this case, since the Andean Law forbid their member states to use other DSMs, we observe a robust number of disputes presented to the Tribunal and therefore, a greater potential for integration.

Regarding the role of the privates, Alter (2012, p. 137) defends that the possibility of privates to present charges in front of a tribunal was important on the development of the ECJ. In the case of the Andean Community, privates are also allowed to present claims in front of the international court as observed by Alter (2012, p. 140). In the period from 2009 to 2019 around 85% of the cases presented involved privates. Nevertheless, even if one excludes the cases with

15_{For our research we consider these 55 cases that took place between 2009 and 2019 due to the fact that these}

cases followed the complete procedure passing both the General Secretariat and the Andean Tribunal of Justice stages. Since both bodies comprise the Andean dispute settlement mechanism, we opted to analyze the more complex cases. Moreover, we found impossible to analyze all the processes of the Andean Tribunal. Only in 2018 were more than 500 processes.

16_{In fact, the member countries of the Andean Community ended their dictatorship regimes about the same time}

as the member countries of the Mercosur. Bolivia (1985), Equator (1979), Peru (1980) and Colombia, the earliest, in 1957. Mercosur countries ended their dictatorships in: Brazil (1985), Argentina (1983), Uruguay (1985) and Paraguay, the latest, in 1989.

Mercosur, Andean Community and CARICOM : Latin American regional integration organizations in face of the Legalization theory