International Court Compliance Research

Legal Studies Research Paper Series Paper No.
1219
OXFORD HANDBOOK OF
INTERNATIONAL ADJUDICATION
Karen J. Alter, Cesare Romano, Yuval Shany,
eds., 2013
Compliance with International

Court Judgments and Decisions
(January 6, 2013)
Alexandra V. Huneeus
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Chapter ___
COMPLIANCE WITH JUDGMENTS AND DECISIONS
Alexandra Huneeus
Often we speak as if international courts were a form of enforcement: we assume that once a
legal regime acquires a court, it has teeth. Both within national and international legal systems,
however, implementation of adjudicated decisions is itself an enforcement problem. Compliance
is not always a straightforward or likely outcome. It is the product of an uncertain and at times
lengthy process shaped by political and social dynamics. All the more so in the international
realm, wherein courts still lack purse and sword, but are more loosely linked to the executive
branches and other actors on which they ultimately depend for the efficacy of their judgments.
This chapter explores when and how the rulings of international adjudicative bodies receive
compliance. What do recent studies in social science and law reveal about when and how
international courts achieve compliance, and what impact, in turn, does compliance – or its
absence – have on international courts?
The discussion divides into three parts. It begins at the conceptual level, analyzing what
compliance means and why it matters, and raising the thorny question of how we measure
compliance. Secondly, it reviews the literature on judgment compliance, with emphasis on
competing explanations of what factors influence compliance. It closes with suggestions for
future inquiry.
I. DEFINITION, SIGNIFICANCE, AND MEASUREMENT
Compliance occupies a central place in both the international relations and legal literature on
international legal institutions in general, and on courts in particular. Yet there is a persistent
ambivalence about its precise contours, and, more deeply, whether it is useful in revealing the
impact of legal institutions on politics and society. Indeed, it seems de rigeur for articles that

Assistant Professor, University of Wisconsin Law School.
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analyze the impact of international legal institutions to include a section disavowing compliance
as a useful indicator—although it often manages to sneak back into the study.1
We begin with definitions. All agree that legal compliance refers to a correspondence
between, on the one hand, what the law requires, and on the other, the behavior of its subjects.
But there is disagreement about whether the compliance refers to mere correspondence, or
whether that correspondence must be the product of a causal relation, with the subject yielding to
the law. Kal Raustiala and Anne-Marie Slaughter declare themselves to be ―agnostic on
causality,‖2 whereas Yuval Shany defines judgment compliance as ―a causal relationship
between the contents of judicial decisions and state practice, leading to a convergence of the
two.‖3 Insistence on something more than mere correspondence seems to be the majority view.
As Kapiszewski and Taylor write, ―a practical – and operationalizable – definition of compliance
must reference some change in behavior.‖4 Similarly Abraham and Antonia Chayes define
compliance as when ―nations alter their behavior, their relationships, and their expectations of
one another over time in accordance with‖ the terms of a treaty commitment.5 In the end,
however, perhaps the definition depends on the commitments of the writer. Benedict Kingsbury
writes that compliance is not a ―free-standing‖ concept that different scholars can share, but one
that they must imbue with meaning in light of their own understanding of the operation and role
of law: it can only ―be given meaning by reference to a theory …of international law.‖6
1) The case against compliance
These differences over definition echo a wider debate about the utility of compliance as an
indicator of law‘s effectiveness. The debate is often described as starting with two seminal
1
Lisa Martin, ―Against Compliance,‖ in Jeffrey L. Dunoff and Mark Pollack (eds), International Law and
International Relations: Synthesizing Insights from Interdisciplinary Scholarship (Cambridge University Press, New
York 2012).
2
Kal Raustiala and Anne-Marie Slaughter, ‗International Law, International Relations and Compliance‘ in Thomas
Risse Carlnaes and Beth Simmons (eds), The Handbook Of International Relations (Walter Sage Publications, Ltd.,
2002), at 539.
3
Yuval Shany. ‗Assessing the Effectiveness of International Courts: A Goal-based Approach‘ (2012) 2 Am. J. of
Int‘l L. 225, at 261.
4
Diana Kapiszewski and Mathew Taylor, ‗Compliance: Measuring and Explaining Adherence to Judicial Rulings‘
(2012) Law and Social Inquiry (forthcoming), at 7.
5
Abram Chayes and Antonia Handler Chayes, ‗On Compliance‘ (1993) 2 International Organization 175, at 176.
6
Benedict Kingsbury ‗The Concept of Compliance as a Function of Competing Conceptions of International Law‘
(1998) 19 Mich. J. Int‘l L. 345, at 368.
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articles. In 1993, Abram and Antonia Chayes argued that there existed a high rate of state
compliance to treaties and that the little noncompliance that did exist was not deliberate but due
to ambiguity in treaty law, lack of state capacity, and time lag. Downs, Rocke and Barsoom
countered that high compliance rates were symptomatic of treaties having shallow depth of
cooperation, defined as ―the extent to which [the treaty] requires states to depart from what they
would have done in its absence.‖7 Treaties that required deeper cooperation would be met with a
higher level of deliberate noncompliance. Their critique attacked the Chayes‘ assumption that
high compliance rates provided useful information. What matters to political scientists, they
argued, is not mere correspondence between the requirements of a legal rule and a state‘s
behavior, but rather whether treaties impact state behavior, in this case by helping states achieve
the collective benefits of cooperation. The concept of compliance is too broad in that it
encompasses behavior that conforms to law for reasons not having to do with the law, and,
specifically, behavior that conforms to law because the law reflects only shallow commitments.
The concept of compliance is also too narrow. No matter which definition you choose,
compliance cannot tell us the full extent of law‘s impact because it excludes other important
effects that law may have.8 A state may fail to comply with the particular demands of a court
ruling, for example, but there may be ways in which that ruling nonetheless alters its behavior.
Rulings can also have significant effects on non-party states and non-state actors. One of the
contributions of Law and Society scholars has been to reveal the myriad and sometimes
contradictory effects of a court ruling after it comes down, beyond the courtroom.9 Even if we
conceive of actors as rational and law as an instrument to alter incentive structures, its impact
occurs through many different channels: compliance to court rulings is but one.
Especially critical of compliance studies are those who emphasize law‘s role not as an
instrument with which to effect change, but rather as constitutive – as constructing cognitive
categories and shaping identities. Under constitutive views, laws are not linked causally to
7
George W. Downs, David M. Rocke, and Peter N. Barsoom, ‗Is the Good News about Compliance Good News
about Cooperation?‘ (1996) 50 International Organization 379, at 383.
8
Robert Howse and Ruti Teitel, ‗Beyond Compliance: Rethinking Why International Law Really Matters‘ (2010) 2
Global Policy 127.
9
For an insightful discussion of law‘s effects in society, see Michael W. McCann, ‗Reform Litigation on Trial‘
(1992) 17 Law & Social Inquiry 715; Gerald N. Rosenberg, ‗Hollow Hopes and Other Aspirations: A Reply to
Feeley and McCann‘ (1992) 17 Law & Social Inquiry 761.
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discrete acts. They do have effects – they may guide, inspire, rationalize or justify behavior 10– it
is just that these effects are not perceived by measuring the correspondence between law‘s
requirements and a given subject‘s behavior. The focus on compliance with international law
tends ―to ignore the centrality of interpretation to the generation of legal meaning.‖11 Rulings
enunciate and clarify rules; they give civil society groups discursive tools with which to pursue
their goals; they may influence how other judges and political actors frame an issue; and they
may influence bargaining among actors ―in the shadow of the law‖ – all of this regardless of
compliance.
The focus on compliance is rooted in the history of IR, long dominated in the US by
12
realists who argued that states obeyed law only when it was in their self-interest. It persists,
Lisa Martin argues, in part because compliance data is readily available, whereas measuring
impact is a costly and uncertain undertaking.13 So problematic has it been that she suggests social
scientists would do better to jettison the concept: ―relying on compliance measures as an
indicator of institutional effects has unfortunately caused the field to veer off in less-than-
productive directions.‖14
2) Why judgment compliance still matters
Compliance nonetheless matters, particularly in the study of adjudication. It is, after all, the
essence of legality. The rule of law is premised on the idea that all must obey the law. It is from
the uniform application of rules to everybody that law derives its core legitimacy. ―Public
authorities‘ compliance with judicial dictates is central to legality and constitutionality.‖15 This
is a normative commitment, and helps explain why legal actors are keen to measure compliance.
Judges care about whether their strictures receive compliance, regardless of other effects they
may have, because it conforms to their understanding of who they are and what law is. This is so
even if, at times, they may forego compliance for other judicial goals. In other words, perhaps it
10
Robert Howse and Ruti Teitel, supra note 8. John G. Ruggie, ‗Epistemology, ontology, and the study of
international regimes‘ in John G. Ruggie (ed) Constructing the World Polity: Essays on International
Institutionalization (Routledge, London 1998).
11
Robert Howse and Ruti Teitel, ibid, at 3.
12
Ibid.
13
Lisa Martin, supra note 1.
14
Ibid.
15
Diana Kapiszewski and Mathew Taylor, supra note 4, at 2.

is true that both effective and ineffective international courts can show high compliance rates.16
But even effective courts would be alarmed if they had a genuinely low compliance level, and
their remedial orders were simply ignored. Compliance assures that courts meet expectations.
Compliance with remedial orders assures that the adverse effects of a legal violation are
attenuated and individual justice is done; compliance with interim orders assures that something
of value is safeguarded from immediate jeopardy while a dispute is resolved; compliance with
orders to assist with a criminal investigation allow prosecutions to move forward. Those who
design courts care about compliance and will want to design them in ways to garner compliance;
those who choose them as the venue through which to resolve disputes want to know orders will
be obeyed. For these legal actors -- and therefore to social scientists interested in understanding
legal phenomena -- the dynamics surrounding compliance matters quite apart from general
assessments of efficacy.
The difficulty with assuming that a legal instrument has a causal relation to compliance is
less acute in the study of judgment compliance than in the setting of state compliance to treaty
law, or primary-norm compliance.17 When a state complies with a court judgment, we know that
it has affirmatively chosen to continue its noncompliant behavior, or it would have desisted
before the litigation. And we know that, subsequent to the ruling, it affirmatively chose to
conform to the ruling. In other words, something in its calculus changed. In this scenario, it is
less fraught to assume that the behavior constituting compliance is an outcome of the decision,
and that it goes against a fairly strong reason for noncompliance (strong enough to justify the risk
of a negative international ruling). Further, when a court orders a state to pay compensation of a
certain specific amount to a victim of a human rights violation, for example, and the state pays
precisely the amount in question, causality is less fraught. The answer to the counterfactual—
would the state have done the same without the order—seems self-evident. A focus on
compliance still excludes important effects the ruling may have, for example on actors not bound
by the ruling. But it acts as a more reliable measure of this one kind of effect that a ruling may
have.
16
Yuval Shany, ‗Compliance with Decisions of International Courts as Indicative of their Effectiveness: A Goal-
Based Analysis‘ (2010) Proc. Eur. Soc‘y Int‘l L. 229.
17
Darren Hawkins and Wade Jacoby, ‗Partial Compliance: A Comparison of the European and Inter-American
Courts for Human Rights‘, (2010) 6 Journal of International Law and International Relations 35, at 40.

Finally, compliance is of interest as an independent and as an intervening variable. The
conclusion that it is not a reliable indicator of a regime‘s effectiveness opens up an important
research question: under what conditions does compliance to court rulings engender greater
effectiveness, however that may be defined? Does judgment compliance lead to greater IC
legitimacy?18 How does it affect judicial behavior? Compliance can ―have powerful feedback
effects on judicial decision-making, independence, and power.‖19 Non-compliance, for example,
can erode a court‘s legitimacy, or alter the way a court makes subsequent rulings.20 Further,
compliance can be viewed as a tool that courts and their subjects strategically wield towards
other goals.21 These themes have been under-studied both in the field of national judicial
politics, where compliance has been assumed,22 and in the field of international law, where the
focus has been on compliance as a dependent variable.
Compliance, then, has importance, if not the outsized importance recently given it by
compliance studies. For social scientists, it is one effect a court ruling may have; for
constructivists, it is a part of the legal activity they explore. For lawyers and public policy-
makers, it is an essential element of the rule of law and a feature of a court‘s efficacy. For all,
compliance has potentially significant political and social impacts that merit study.
3) Defining judgment compliance
Judgment compliance occurs when a state or other actor subject to the court carries out the
actions required by a ruling of the court, or refrains from carrying out actions prohibited by said
ruling. Sensu stricto, it does not include actions taken by actors not subject to the ruling, nor
does it include actions taken in response to the ruling but not required by the ruling.
18
James L. Gibson and Gregory A. Caldeira, ‗The Legitimacy of Transnational Legal Institutions: Compliance,
Support, and the European Court of Justice‘ (1995), 39 American Journal of Political Science 459.
19
Diana Kapiszewski and Mathew Taylor supra note 4, at 1.
20
Clifford J. Carrubba, Matthew Gabel, and Charles Hankla, ‗Judicial Behavior under Political Constraints:
Evidence from the European Court of Justice‘ (2008) 4 American Political Science Review 435; Laurence Helfer
and Anne-Marie Slaughter, ‗Why States Create International Tribunals: A Response to Professors Posner and Yoo‘
(2005) 93 California Law Review 899.
21
Clifford J. Carrubba, Matthew Gabel, and Charles Hankla supra note 20; Yuval Shany supra note 16; Jeffrey K.
Staton and George Vanberg, ‗The Value of Vagueness: Delegation, Defiance and Judicial Opinions‘ (2008) 3
American Journal of Political Science 504.
22
Diana Kapiszewski and Mathew Taylor supra note 4.

There are two distinct types of judgment compliance. The first, and more specific, type
refers to compliance to court orders that request a concrete action from a particular party.
Compliance to remedial orders clearly qualifies, as does compliance with interim orders meant to
grant relief prior to a substantive ruling. This category also includes compliance to orders issued
by the international criminal courts that solicit states‘ help in conducting investigations (when
those states are legally bound to do so). Assessing specific compliance requires that one
examine the behavior of parties to the case that were burdened by a specific order. The domestic
process which leads to specific compliance is often referred to as implementation.
But judgments also include authoritative interpretations of underlying laws, and at times
claim to exert a diffuse erga omnes (as opposed to inter partes) authority.23 Thus, US Supreme
Court judgments are deemed to create law, and that law must be followed not only by the parties
to the case, but by all federal judges adjudicating similar cases. This stare decisis system – in
which the rulings of the adjudicative body are unmoored from the dispute in which a rule is
enunciated to become a primary norm – creates a more diffuse form of legal compliance. To
measure it, one must look beyond the losing party to all the actors subject to the court, and
measure their subsequent behavior against the rule enunciated by the particular ruling.
International judgments, however, do not claim to create binding precedent. And while the role
precedent plays in institutionalized legal systems such as the EU is virtually indistinguishable
from the role it plays in Anglo-American common law systems, 24 it does not carry the formal
title of law. For this reason, most studies in international law, including this chapter, focus only
on the first, more specific sense of judgment compliance. But the second, broader category of
diffuse compliance may grow in importance if ICs are able to convince subjects that their
rulings, like those of the US Supreme Court, provide interpretations of the primary norms that
are themselves binding.25
23
The term erga omnes is used here, as it is in national law, to refer to a judgment that binds not only the parties to
the case, but others under the court‘s authority as well.
24
Bernhard Hofstötter, Non-Compliance of National Courts: Remedies in European Community Law and Beyond
(TMC Asser Press, The Hague 2006), at 42.
25
For an argument that the Inter-American Court is moving in this direction, see Ariel Dulityz, ―El impacto del
control de convencionalidad: ¿Un cambio de paradigma en el sistema interamericano de derechos humanos?‖
Tratado de los Derechos Constitucionales (Sebastián Elias, Lucas Grosman, Santiago Legarre and Julio César
Rivera eds., forthcoming).

4) Measuring judgment compliance
The concept of compliance is relational.26 It refers to the correspondence of two things: the
rulings‘ demands, and the behavior of parties subject to the ruling. Measuring judgment
compliance requires at least three separate steps: an interpretation of what behavior the ruling
demands and of whom; an assessment of the subject parties‘ behavior; and a comparison of the
two.27 Each step presents measurement challenges.
First there is the problem of figuring out what, exactly, a ruling demands. As the
constructivists complain, compliance studies tend to ―begin with the notion that there is a stable
and agreed meaning to a rule, and we need merely to observe whether it is obeyed.‖28 But the
meaning of rules is subject to different interpretations and can change over time. Remedial
orders can be clearly delineated: they usually come at the end of a decision, and can even be set
apart in their own section. They can be quite specific, as when a court gives a dollar amount by
which the losing party must compensate the winner. But they can also lead to interpretive
difficulty and, indeed, are times are deliberately vague.29 Further, remedy compliance might not
be the same as compliance with the judgment in its entirety. Thus, the human rights courts might
find that a state violated the right to access to justice, and order compensation to the victim as the
remedy. But if the state, having compensated the victim, does not fix its justice system, has it
complied with the ruling?
The second step requires ascertaining what the burdened actor has done in response. This
can be a difficult empirical inquiry. Even where it is clear what actions the actor must take, it
can be difficult to obtain data to assess whether it has taken those actions. Some international
court systems monitor compliance and issue supervisory reports, but they usually rely on the
state to volunteer information about their implementation of the ruling, and the reports can be
incomplete.
26
27
Ibid.
28
Robert Howse and Ruti Teitel Supra note 8, at 127.
29
Jeffrey K. Staton and George Vanberg supra note 21.

The third step, determining if the acts comprise compliance, is again a matter of
interpretation: it requires applying the rule or the order to the messy facts on the ground. Often
there is no actor that has the power to authoritatively decide whether there is compliance. Where
an official actor is charged with monitoring and deciding on compliance, such as the Committee
of Ministers in the European Council System, there arises the question of whether to adopt the
official judgment on compliance, which carries legal weight, or whether an independent
assessment must be made, which may differ from that of the official body
Further, there is the question of how much compliance is enough. At first glance
compliance looks like a dichotomous variable: the burdened actor‘s behavior either qualifies as
compliance or does not. However, there is a growing interest in conceptualizing and measuring
the broad spectrum of behavior that seems better described as falling in-between two extremes,
partial compliance.30 Partial compliance can refer to behavior that moves toward, but doesn‘t
achieve, full implementation of a particular ruling. Or, in a ruling that encompasses various
orders, it can refer to compliance/non-compliance to some discrete orders, and not others (or, of
course, a mix of the two). By coding some noncompliance as partial compliance, several recent
studies of the regional rights systems have been able to reveal interesting patterns in compliance
behavior.31
Time‘s passage also poses a measurement challenge. The definition of judgment

compliance given above is atemporal. But it clearly matters when the burdened party acts. An
act of compliance that takes place six months after the ruling seems qualitatively different than
one that take place ten years later. Time must be incorporated into any assessment of
compliance.32 Indeed, some courts already do this by giving states deadlines, and the European
30
Darren Hawkins and Wade Jacoby supra note 17; Courtney Hillebrecht, ‗Rethinking Compliance: The Challenges
and Prospects of Measuring Compliance with International Human Rights‘ (2009) 1 Journal of Human Rights
Practice 362; Diana Kapiszewski and Mathew Taylor supra note 4.
31
See, for example, Darren Hawkins and Wade Jacoby supra note 17; Courtney Hillebrecht, ‗Implementing
International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights‘ (2012) 13
Human Rights Review 279; Alexandra Huneeus, ‗Courts Resisting Courts: The Inter-American Court‘s Struggle to
Enforce Human Rights‘ (2011) 44 Cornell Int‘l L. J. 493; Fernando Basch, Leonardo Filippini, Ana Laya, Mariano
Nino, Felicitas Rossi and Bárbara Schreiber, ‗The Effectiveness Of The Inter-American System Of Human Rights
Protection: A Quantitative Approach To Its Functioning And Compliance With Its Decisions‘ (2010) 7 Sur –
International Journal on Human Rights 9.
32
Courtney Hillebrecht supra note 30; Diana Kapiszewski and Mathew Taylor supra note 4.

Committee has begun recording the percentage of payments states make on time33. At the least,
if we define compliance as behavior caused by a judgment, ―our confidence in labeling behavior
in line with a judicial ruling as ―compliance‖ should probably decrease as time between the
ruling and the ―response‖ increases.‖34
Despite the challenges outlined above, there are rich empirical studies on individual ICs.
Scholars have developed methods to study compliance with judgments of the ICJ,35 WTO,36 the
ECJ,37 the Andean Court of Justice,38 as well as the regional human rights courts.39 One lacuna,
however, is comparison across courts, and especially across different types of international
adjudicative bodies. Factors such as styles of remedial design and different record-keeping
practices make it challenging to derive meaningful comparison. At the most extreme, it seems
unlikely that the compliance behavior of states can be fruitfully compared to that of other types
of IC subjects, such as international organizations, corporations, or individual defendants on the
criminal docket. Recent scholarship has begun deriving systematic measures with an eye to
comparison across courts and across legal systems.40 But systematic applications of such
methods are still lacking.
II. UNDERSTANDING IC JUDGMENT COMPLIANCE
Even as most compliance studies have focused on a particular court without looking
comparatively to derive more general observations, a review of the literature allows us to derive
33
Courtney Hillebrecht supra note 30, at 376.
34
Diana Kapiszewski and Mathew Taylor supra note 4, at 22.
35
See, among others, Constanze Schulte, Compliance with Decisions of the International Court of Justice
(University Press, Oxford 2005); Colter Paulson ‗Compliance with Final Judgments of the International Court of
Justice Since 1987‘ (2004) 98 AJIL 434.
36
See, among others, Kara Leitner and Simon Lester ‗WTO Dispute Settlement from 1995 to 2005: A Statistical
Analysis‘ (2006) 9 JIEL 219; William J. Davey, ‗Evaluating WTO Dispute Settlement: What Results Have Been
Achieved Through Consultations and Implementation of Panel Reports?‘ in Y. Taniguchi, A. Yanovich, and J.
Bohanes (eds.), The WTO in the 21st Century: Dispute Settlement, Negotiations, and Regionalism (Cambridge
University Press, Cambridge, 2007).
37
See, among others, Michael Blauberger ‗With Luxembourg in mind . . . the remaking of national policies in the
face of ECJ jurisprudence‘ (2012) 19 Journal of European Public Policy 19 109, at 22; Tanja A. Börzel, Tobias
Hofmann and Diana Panke, ‗Caving in or sitting it out? Longitudinal patterns of non-compliance in the European
Union‘ (2012) 19 Journal of European Public Policy 454, at 467.
38
See Karen Alter, Larry Helfer and M. Florencia Guerzovich, ‗Islands of Effective International Adjudication:
Constructing an Intellectual Property Rule of Law in the Andean Community‘ (2009) 109 AJIL 1.
39
See, Darren Hawkins and Wade Jacoby, supra note 17.
40
Julien Etienne, ‗Compliance Theory: A Goal Framing Approach‘ (2011) 3 Law and Policy 305; Kapiszewski and
Taylor supra note 4; Courtney Hillebrecht supra note 30.
10

shared themes across courts. This section divides into four parts. It begins by examining studies
that explain judgment compliance by focusing on features of the court, or of the structure of the
legal regime of which the court is part. Second, it turns to studies highlighting factors having to
do with the state, including its legal and political features. Third are studies that highlight
features of the dispute itself, such as subject matter and the type of problem it seeks to solve.
Finally, the section turns the equation around, and examines studies that view compliance not as
a dependent but as an independent or intervening variable. The section draws especially on
studies of the transnational human rights courts, the international criminal courts, and the
European Court of Justice and the International Court of Justice.
Throughout the emphasis is on studies that treat judgment compliance as distinct from
primary norm compliance. This is not because general compliance studies are not relevant.
They are. However, theories that seek to explain primary norm compliance cannot, without
more, claim to explain judgment compliance. In arguing against concern with reputation as an
explanation for judgment compliance, Ginsburg and McAdams write ―if reputation were strong
enough to compel compliance with adjudication, one wonders why it was not also strong enough
to resolve the dispute without adjudication. Why is reputation too weak to induce compliance
before a third party pronounces a nation's legal obligations, but still strong enough to induce
compliance after such a pronouncement.‖41 Their question raises a challenge to any general
compliance theory that does not specifically account for the dynamics of adjudication.
1) Judgment compliance and features of the IC regime
(a) Consent structure
Several studies query whether the manner in which states consent to court jurisdiction matters to
judgment compliance. The jurisdiction of the ICJ can be accepted in four ways, each reflecting a
different level of commitment by the litigating parties. Scholars have long assumed that
―defiance is less likely where states have given their specific consent to proceedings before the
41
Tom Ginsburg and Richard H. McAdams, ‗Adjudicating in Anarchy: An Expressive Theory of International
Dispute Resolution‘ (2004) 25 Wm. & Mary L. Rev. 1229, at 1240.
11

Court,‖42 particularly through special agreement. Cases of compulsory jurisdiction (through
optimal clause declaration or compromissory clause) ―present a far greater challenge for the
Court‘s authority.‖43 In 2004, however, Colter Paulsen published an article concluding that there
is ―no link between submission by special agreement and compliance.‖44 Llamzon took up the
question in a later study examining cases subsequent to Nicaragua v U.S., and concluded that
―the mode by which the ICJ was seised of jurisdiction thus appears to be a rather poor predictor
of subsequent compliance.‖45 Llamzon and Paulsen‘s findings can be understood as showing not
that consent does not matter, but rather that, as Schulte himself emphasizes, the ICJ jurisdictional
structures are not a reliable proxy for consent. Several states have been reluctantly dragged into
litigation through special agreement jurisdiction.
The consent argument has also been explored in the ICC setting. There are three ways in
which cases have come before the ICC: through a UN Security Council referral of a non-State
Party;46 through the prosecutor‘s referral of a State Party,47 and through self-referral.48 Some
argue that the ICC will be more successful in obtaining state compliance to its orders to
apprehend subjects in cases of self-referrals than in cases imposed on an unwilling non-party
state by the UNSC, such as the investigations in Sudan and Libya, or by the prosecutor acting in
propiu motu.49 Again, however, formal consent might not indicate true will: the Democratic
Republic of Congo, for example, only referred the case when a referral by the prosecutor was
42
Constanze Schulte supra note 35, at 406. See also Jonathan I. Charney, ‗Disputes Implicating the Institutional
Credibility of the Court: Problems of Non-Appearance, Non-Participation, and Non-Performance‘ in Lori Fisler
Damrosch (ed), The International Court of Justice at a Crossroads (Transnational, Dobbs Ferry, N.Y 1987);
Shigeru Oda, ‗The Compulsory Jurisdiction of the International Court of Justice: A Myth?‘ (2000) 49 Int‘l & Comp
LQ 251, at 264.
43
Constanze Schulte, ibid, at 411.
44
Colter Paulson supra note 35, at 457.
45
Aloysius P Llamzon, ‗Jurisdiction and Compliance in Recent Decisions of the International Court of Justice‘
(2007) 5 Eur. J. Int‘l L. 815, at 852.
46
The situations in Darfur, Sudan and in Libya were referred by the UNSC.
47
The situations in Kenya and Ivory Coast were referred by the Office of the Prosecutor.
48
The situations in Congo, Central African Republic, Uganda and Mali are self-referrals. Under the Rome Statute,
State Parties can also refer fellow State Parties, but this has yet to take place.
49
Steven D. Roper and Lilian A. Barria, ‗State Cooperation and International Criminal Court Bargaining Influence
in the Arrest and the Surrender of Suspects‘ (2008) 21 Leiden Journal of International Law 457, at 464. See also
Victor Peskin, ‗Caution and Confrontation in the International Criminal Court‘s Pursuit of Accountability in Uganda
and Sudan‘ (2009) 31 Human Rights Quarterly 655. Note that State Parties have a duty to comply with ICC
requests even if the crimes investigated did not take place on their territory, and the suspects are not their nationals.
Coaxing compliance from third states poses a different set of challenges for the ICC; it is also the case that suspects
flee to non- Party states, which do not have said duty.
12

imminent.50 Even where a state willingly refers its case, this consent may be a weak predictor:
investigations take years, and political will is quick to shift. Uganda, one of the states that
referred itself to the ICC, suffered buyer‘s remorse when it realized the ICC was hampering its
ability to broker a peace deal with the Lord‘s Resistance Army.51
(b) Remedy design
Scholars concur that the rate of remedial compliance tends to reflect the cost the particular order
imposed on the burdened state. The record of the human rights tribunals, for example, shows
that orders requiring monetary compensation are more likely to receive compliance than those
requiring equitable relief.52 It is easier for states to pay out money than it is to undertake actions,
such as bureaucratic reform, as a form of compensation. Among the Inter-American Court‘s
creative array of equitable relief orders, those requiring more challenging actions, such as an
order to investigate and punish a crime, receive lower compliance.53 An alternative hypothesis
theory is that the equitable orders that require action by more veto players within the state are
less likely to be fulfilled. Thus, remedial orders requiring action by distinct government branches
or institutions are less likely to reach compliance than those that can be carried out by a single
institutional actor.54
Another remedy design feature that seems to matter is the degree of vagueness of the
order: ―An established line of research demonstrates that vague judicial opinions are less likely
to be implemented than clear opinions.‖55 Greater specificity means greater transparency and
accountability, raising the cost of noncompliance. Studies also show that courts strategically use
50
Roper and Barria ibid., at 469-470
51
H. Abigail Moy, ‗International Criminal Court's Arrest Warrants and Uganda's Lord's Resistance Army:
Renewing the Debate over Amnesty and Complementarity‘ (2006) 19 Harv. Hum Rts. J. 267.
52
Darren Hawkins and Wade Jacoby supra note 17.
53
Ibid.
54
Alexandra Huneeus supra note 31.
55
Jeffrey K. Staton and George Vanberg supra note 21, at 504; Jeffrey K. Staton and Alexia Romero ‗Clarity and
Compliance in the Inter-American Human Rights System‘ (IPSA-ECPR Joint Conference, February 16 to 19, 2011,
Sao Paulo, Brazil) <http://www.saopaulo2011.ipsa.org/sites/default/files/papers/paper-883.pdf > accessed 15
December, 2012.
13

vague language when they fear non-compliance, as a way to mask their inability to command
compliance.56
(c) Provisional Measures and Order Type
International courts issue many different kinds of orders, including provisional measures,
remedial orders, and orders to assist with a criminal investigation, among others. While there is
no study that compares compliance rates across order type, some studies of provisional measures
mention features that would make a difference to their compliance rates as compared to final
judgments. First, it is has not always been clear whether they are binding in the same way as
final judgments. Compliance with ICJ provisional measures, for example, has improved since
the Court clearly stated that they had binding force in the LaGrand judgment.57 Second, courts
issue provisional measures before they have reached a final decision on whether they have
jurisdiction over the merits. In the eyes of the burdened state, the exercise may therefore lack
legitimacy.58 More deeply, Schulte argues that, whereas final judgments create clarity,
provisional measures ―limits [states‘] freedom of action pending the proceedings without
creating clarity.‖59 States therefore get little benefit from complying.
In the Inter-American setting provisional measures are often used to ensure the security
of particular individuals at immediate risk. Burbano Herrera argues that the Court has had a high
compliance rate with such measures. Noncompliance of these provisional measures most
commonly occurred in areas where the state has less control: either because the state does not
protect beneficiaries from third parties (as opposed to directly violating the right to life or
physical integrity); because the beneficiaries do not trust the state; or because the measures
backfire and further imperil the beneficiary.60
56
Jeffrey K. Staton and George Vanberg supra note 21.
57
Constanze Schulte supra note 35, at pp. 428- 429.
58
Shabtai Rosenne, Provisional Measures in International Law (Oxford University Press, Oxford 2005), at 189. Of
course, one might also argue that states can benefit from compliance to such measures by keeping a court‘s good
will, and by keeping a dispute from deteriorating. Both scenarios are possible. (I owe this point to Yuval Shany).
59
Constanze Schulte supra note 35, at 418.
60
Clara Burbano Herrera, Provisional Measures in the Case Law of the Inter-American Court of Human Rights
(Intersentia, Antwerpen 2010).
14

(d) Enforcement mechanisms
National courts rely on the executive to enforce judgments. International courts often do as well.
But as ICs judgments are often directed against the very state that would be charged with
execution of the order, they find themselves on weaker ground (although public law litigation
can leave national courts in a similar place). To overcome resistance to self-enforcement, some
founding treaties create mechanisms by which enforcement problems can be referred to a
separate body that presumably has the power to take an ―active resolution.‖ In cases of non-
compliance to an ICJ ruling, the U.N. Charter provides that the aggrieved state can refer the case
to the Security Council, ―which may, if it deems necessary, make recommendations or decide
upon measures to be taken to give effect to the judgment.‖61 Similarly, the Statute for the ICTY
allows the court to report state non-compliance to orders to assist with the investigation to the
Security Council;62 the American Convention on Human Rights allows the Inter-American Court
to refer noncompliance to the OAS General Assembly; and the Council of Europe allows the
Council to suspend membership for non-implementation of ECHR judgments.
These enforcement mechanisms, however, have not proved effective. Few ICJ cases
have been referred to the Security Council, in part because ―cases of defiance regularly involved
a permanent member either on the applicant or the respondent side, reinforcing the institution‘s
Cold War stasis.‖63 The ICTY soon learned that the Security Council was unwilling to enforce
states‘ duties to assist tribunal investigations. However, the referrals had the virtue of putting
outside pressure on recalcitrant states.64 The Inter-American Court similarly learned that the
OAS General Assembly lacks political will to pressure states to comply with its judgments;
indeed, as one judge observes, there exists no mechanism for the OAS General Assembly to
regularly discuss the Court‘s compliance reports.65 Neither has the COE ever suspended a
noncompliant member: ―is not politically viable for the COE to expel Western European states
on whom their operating budget depends, nor is it necessarily expedient to expel states from
61
UN Charter, Art. 94. 2.g.
62
See International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th
mtg. at 29, U.N. Doc. S/827/1993 (1993).
63
Constanze Schulte Supra note 35, at 417.
64
Christopher K. Lamont, International Criminal Justice and the Politics of Compliance (Ashgate Publishing Ltd.,
Surrey 2010), at 171.
65
Caesar Case (Dissenting Opinion Judge Manuel E. Ventura Robles) Inter-American Court of Human Rights Serie
C No.123 (11 March 2005), para. 26.
15

Central and Eastern Europe if one of the core objectives … is their socialization into democratic
and European institutions.‖66 The one time it seemed the COE would suspend a member, the
state preempted the action by withdrawing.67
Traditional forms of international law enforcement do play a role in IC regimes. The

World Trade Organization regime, for example, relies on self-help. Aggrieved states can enforce
judgments by retaliating against non-compliant states, taking trade measures that would
otherwise be in breach of the underlying treaties.68 The threat of retaliation makes non-
compliance costly to the burdened state, and thus less likely;69 and they also have the effect of
creating incentives for exporters to lobby their governments to comply.70 One problem is that the
incentives to comply are different for different states: as one study notes, ―it is one thing for the
EU to be excluded from the Ecuadorian market and yet quite another for Ecuador to be excluded
from the EU market.‖71 Some IC treaties impose a specific duty to enforce judgments. UN
member states have a duty to enforce ICJ judgments when they are party to the case; whereas all
state parties to ICSID have a duty to enforce its judgments, regardless of whether they were a
party, and its judgments are enforceable as if they were domestic court decisions.72
(e) Monitoring mechanisms
IC regimes have developed supervision mechanisms as a way to pressure towards

implementation of decisions. The European Committee of Ministers, for example, supervises
implementation of European Court of Human Rights rulings, and issues reports on compliance.
66
Courtney Hillebrecht supra note 31, at 5.
67
The State was Greece, during its military dictatorship. See Menno T. Kamminga, ‗Is the European Convention on
Human Rights Sufficiently Equipped to Cope with Gross and Systematic Violations‘ (1994) 12 Neth. Q. Hum. Rts.
153, at 155.
68
However, different views exist on exactly what sorts of obligation follow from a WTO Dispute Resolution
Mechanism decision. See John H. Jackson, ‗Editorial Comment: the WTO dispute settlement understanding –
misunderstandings on the nature of legal obligation‘ (1997) 91 AJIL 60. For a contrary view, see Judith Hippler
Bellow, ‗The WTO DSU: Less is More‘ (1996) 90 AJIL 416.
69
Andrew T. Guzman, How International Law Works: A Rational Choice Theory (Oxford University Press, New
York 2008).
70
Mark L. Movsesian, ‗Enforcement of WTO Rulings: An Interest Group Analysis‘ (2003) 32 Hofstra Law Review
1.
71
Petros C. Mavroidis, ‗On Compliance in the WTO: Enforcement amongst Unequal Disputants‘ [2012] 4 Briefing
Paper Cuts International, < http://www.cuts-citee.org/pdf/Briefing_Paper12-
On_Compliance_in_the_WTO_Enforcement_Amongst_Unequal_Disputants.pdf> accessed July 27, 2012, at 3.
72
Lori F. Damrosch, ‗A Comparative Look at Domestic Enforcement of International Tribunal Judgments‘ (2009)
103 Proceedings of the Annual Meeting (American Society of International Law) 39.
16

The Inter-American Court has interpreted its mandate to allow it to remain seized of a case until
it deems there is compliance, and to demand states to report on their efforts towards compliance.
More recently, it has begun ordering states to participate in closed compliance hearings that
include representatives of the Inter-American Commission, representatives of the victims, and
judges, playing the role of mediators. Supervision mechanisms are not, strictly speaking, forms
of enforcement– they could be just as easily elided by states as the ruling itself. Rather, they
resemble non-compliance procedures – procedures built into treaty regimes to foster primary-
norm compliance.73 While Romano finds non-compliance procedures to be effective alternatives
to adjudication in Environmental Treaty Regimes, there is no systematic study that shows
whether these procedures increase compliance once they are incorporated by ICs into the post-
adjudication phase -- perhaps one is due. Nonetheless, it seems clear they heighten the incentive
to comply by publicizing noncompliance, and giving discursive tools to civil society and other
states interested in pressuring for compliance.
(f) Legalization
Each of the IC features discussed so far could be considered an aspect of legalization, or the
degree to which the IC regime conforms to each of three dimensions: level of formal state
obligation to comply, level of precision of rules, and level of delegation of the power to decide to
the IC.74 Scholars debate how the level of legalization of an international law regime affects
primary-norm and judgment compliance. Of course, once we are talking about a regime that
includes binding adjudication, we are already at a high level of legalization: the opposite extreme
would be soft law, or norms without binding force. But there is variation even within IC
regimes. We could consider compulsory jurisdiction, precise remedies and greater and
monitoring to be signs of greater legalization. Scholars have not always found legalization
linked to greater primary norm or judgment compliance.75 Looking to the World Trade
Organization Dispute Settlement Mechanism, scholars have debated what level of legalization is
73
Cesare P.R. Romano, The Peaceful Settlement of International Environmental Disputes: A Pragmatic Approach
(Kluwer Law 2000).
74
Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, and Duncan Snidal, ‗The
Concept of Legalization‘ (2000) 54 International Organization 401.
75
Kal Raustiala and Anne-Marie Slaughter supra note 2.
17

optimal, and yields greatest compliance.76 One concern is that too over-legalization leads to
backlash and non-compliance.77 The move by the Inter-American Court to incorporate
mandatory compliance hearings in which judges act as mediators would seem to be an
acknowledgement that sometimes less formal adjudication and more informal negotiation is
better.
(g) IC soft power and compliance constituencies
Some have pointed to a court‘s ability to use its soft power to publicize noncompliance and
garner third-party support. Writing about the ad hoc criminal tribunals, Victor Peskin argues that
the degree to which they were able to get favorable press coverage and convince third states to
support their orders proved key to their relative success, noting that the ICTY ―has wielded more
soft power than the ICTR.‖78 Relations with civil society can also impact compliance. The ICC
has been strategic in building alliances with civil society as a way to legitimate itself, but also as
a way of pressuring towards compliance to its orders to assist. It has arguably made many
missteps as well. Some argue that it has alienated African states by focusing its rulings on
African nations, undermining its efficacy in the region. 79 Implicit in such critiques is the notion
that by proactively mobilizing third states and civil society courts are able to exert influence and
enhance compliance. More comparative work is needed, however, in understanding when courts
play a hand in successfully mobilizing such alliances, and when they fail to do so.
(h) IC legitimacy and independence
Thomas Franck defined legitimacy as ―a property of a rule or rule-making institution which itself
exerts a pull toward compliance on those addressed normatively because those addressed believe
that the rule or institution has come into being and operates in accordance with generally
76
See, among others, Robert E., Hudec ‗The New WTO Dispute Settlement Procedure: An Overview of the First
Three years‘ (1999) 8 Minnesota Journal of Global Trade 1.
77
Laurence Helfer, ―Overlegalizing Human Rights: International Relations Theory and the Commonwealth
Caribbean Backlash Against Human Rights Regimes,‖ 102 Columbia Law Review 1832-1911 (2002).
78
Victor Peskin, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State
Cooperation (Cambridge University Press, Cambridge 2008), at 7.
79
See Max Du Plessis, The International Criminal Court that Africa wants (Institute for Security Studies, Pretoria
2010); Kurt Mills, ‗Bashir is Dividing Us: Africa and the International Criminal Court‘ (2012) 34 Human Rights
Quarterly 404; Charles Chernor Jalloh, ‗Universal Jurisdiction, Universal Prescription? A Preliminary Assessment
of the African Union Perspective on Universal Jurisdiction‘ (2010) 21 Crim. L. Forum 15.
18

accepted principles of right process.‖80 It can be identified by a relevant audience‘s ―willingness
to continue to support the continued function of the institution despite disagreement with its
outputs.‖81 There is a long sociological tradition that links legitimate authority and obedience to
law, and it is often assumed that a court‘s legitimacy enhances compliance to its rulings. But the
relation has received little direct scholarly inquiry.82 One study did find that the ECJ had low
legitimacy among individual EU citizens, negatively impacting their acceptance of rulings with
which they disagreed, and, most likely, compliance.83 But more direct study on legitimacy is
needed, both as leading to compliance, and, in turn, as its product.
Counter-intuitively, there seems to be no positive correlation between IC independence and

compliance. Yoo and Posner note that dependent courts will be more deferential to states, and
thus may actually enjoy high compliance rates.84 Conversely, Helfer and Slaughter‘s constrained
courts, with compulsory jurisdiction and tenured judges, will issue rulings at times distasteful to
the losing party, and encounter greater compliance problems.85 But as many other factors weight
into their equation, no direct generalization can be drawn from their model about a link between
judicial independence and judgment compliance.
2) Judgment compliance and features of the state
In recent years there has been a surge of studies that examine the role of diverse sub-national
actors and institutions to explain why states obey international law. This trend has also been
influential in the study of compliance. Increasingly, scholars argue that ―implementation is
inherently a domestic issue.‖86 Within the domestic sphere, some studies emphasize legal
institutions and actors, while others emphasize the impact of political factors, such as regime
type, on judgment compliance.
80
Thomas M. Franck, The Power of Legitimacy among Nations (Oxford University Press, Oxford 1990), at 16.
81
James L. Gibson and Gregory A. Caldeira supra note 18, at 460.
82
Nienke Grossman, ‗Legitimacy and International Adjudicative Bodies‘ (2010) 41 George Washington
International Law Review 107; Thomas M. Franck supra note 80.
83
James L. Gibson and Gregory A. Caldeira supra note 18.
84
Eric A. Posner & John C. Yoo, ‗Judicial Independence in International Tribunals‘ (2005) 93. Calif. L. Rev. 1.
85
Laurence Helfer and Anne-Marie Slaughter supra note 20.
86
Courtney Hillebrecht supra note 31.
19

(a) Domestic legal factors
Legal scholars point to formal features of the legal system. For example, some suggest that
whether an IC judgment is treated by the national legal system as self-executing matters to
compliance. The US Supreme Court ruled in 2007 that the ICJ‘s remedial order in Avena was
not self-executing, and thus could not be enforced unless Congress passed enacting legislation.
Several high courts in Latin America, by contrast, have in recent years decided that the Inter-
American Court‘s orders are automatically binding and justiciable in the domestic sphere. It can
also matter what level of the hierarchy of laws a ruling is treated as holding: is it akin to
constitutional law, or does it come in at the level of legislation? If the latter, subsequent
legislation trumps in many (though not all) legal systems.
Those concerned with the implementation of rulings also emphasize the role of domestic
mechanisms of implementation. One reason why compliance Inter-American Court orders
receive higher compliance when they demand compensation rather than injunctive remedies is
that, in many nations, monetary award judgments can be directly enforced in national courts.87
For implementation of complex injunctive relief orders, by contrast, there may be no clear
mechanism. Even where the executive is committed to implementation, difficult orders can
require complex decision-making and coordination between different state institutions, for which
an established method of proceeding would fare better. US courts appoint special masters to
implement complex structural reform orders, but there is no analog in international litigation.
Other features of the legal system refer not to formal rules but rather to the political
dynamics that influence the legal system, or judicial politics. Studies of primary norm
compliance suggest that independent courts will be more willing to rule against the interests of
powerful actors, such as the executive, and enforce treaty obligations.88 Scholars of the ECJ have
pointed to national judicial power as fostering compliance to the ECJ‘s interpretations of the
underlying treaty obligations. Courts use international instruments such as judicial rulings to
enhance their own standing or preferences, which, in turn, heightens the impact of international
87
Viviana Krsticevic, Implementación de las Decisiones del Sistema Interamericano de Derechos Humanos:
Aportes para los Procesos Legislativos [Implementation of the Decisions of the Inter-American System for Human
Rights: Suggestions for Legislative Processes] (Center for Justice and Int‘l L. ed., Buenos Aires 2009).
88
Beth A. Simmons, ‗Compliance with International Agreements‘ (1998) 1 Annual Review of Political Science 75.
20

law judgments.89 It can also be the case, however, that independent courts resist judgment
compliance.90 Yuval Shany points out that U.S. courts have a poor record on compliance to ICJ
rulings, with the Supreme Court declaring in 2007 that its judgments were not justiciable within
the United States.91 In the Inter-American setting, two studies suggest that judicial independence
does not necessarily predict remedy compliance.92 One possibility is that when ICs issue orders
that require specific action by national courts, and particularly high courts, compliance will be
lower. In this scenario, the IC casts the domestic courts not as partners in monitoring state
compliance, but as subjects that must obey orders.93
Related to judicial independence is the concept of compliance partnerships between

transnational and national courts. Starting in the 1990s, scholars sought to explain how the ECJ
had ―gradually secured compliance with its judgments and created a far more powerful role for
itself than the founders of the Community had ever envisaged.‖94 One school of thought
emphasized the links the ECJ established with sub-national actors while shielding itself from
political interference.95 In particular, these theorists highlighted the role of national courts as
partners that bolstered the ECJ by enforcing its rulings domestically. The crux of the debate was
not about compliance per se, but political impact – did the ECJ push states to accept rulings they
would not have otherwise preferred? Garret and Weingast countered that that state actors had
expected and foreseen the path taken by the court: ECJ judgments reflected state interest,96 and
thus national courts were only enforcing state preferences. Nonetheless, the debate revealed how
national courts and other subnational actors could play a pivotal role in enhancing compliance,
89
Karen Alter, Establishing the Supremacy of European Law: The Making of an International Rule of Law in
Europe (Oxford University Press, Oxford 2001).
90
Karen Alter, ‗The European Union‘s Legal System and Domestic Policy: Spillover or Backlash?‘ in Judith L.
Goldstein, Miles Kahler, Robert O. Keohane and Anne-Marie Slaughter (eds), Legalization and World Politics.
(MIT Press, Cambridge 2001).
91
Yuval Shany supra note 16; see also Medellín v. Texas [2008] 552 U.S. 491.
92
Alexandra Huneeus supra note 31; Jeffrey K. Staton and Alexia Romero supra note 55.
93
See Alexandra Huneeus supra note 31.
94
Kal Raustiala and Anne-Marie Slaughter supra note 2, at 541.
95
Karen Alter, 'Who are the Masters of the Treaty? European Governments and the European Court of Justice'
(1998) 52 International Organization 121; Walter Mattli and Anne-Marie Slaughter, ‗Law and Politics in the
European Union: A Reply to Garrett‘ (1995) 1 International Organization 183; Alec Stone Sweet, 'Judicialization
and the Construction of Governance' (1999) 32 Comparative Political Studies 147; J.H.H. Weiler, 'A Quiet
Revolution: The European Court of Justice and Its Interlocutors' (1994), 26 Comparative Political Studies 510.
96
Geoffrey Garret and Barry R. Weingast, ‗Ideas, Interests and Institutions: Constructing the European
Community‘s Internal Market‘ in Judith Goldstein and Robert O. Keohane (eds), Ideas in Foreign Policy: Beliefs,
Institutions and Political Change (Cornell University Press, Ithaca 1993); Geoffrey Garrett, 'The Politics of Legal
Integration in the European Union' (1995) 49 International Organization 171.
21

and how domestic and international political and legal factors would make such compliance
partnerships more likely.
Finally, legal culture – either generally held norms about legality and the rule of rule of
law or more specific commitments to specific norms – may also influence state compliance.
Comparing Serbia‘s and Croatia‘s compliance to orders from the International Criminal Tribunal
for the Former Yugoslavia (ICTY), David Lamont argues that Croatia‘s general commitment to
legality helps explains why it has a better compliance record than Serbia.97 Sikkink and Lutz
point to a norm cascade to explain Latin American states‘ move toward striking down amnesties
and prosecuting for dictatorship-era crimes.98 Prosecution of these crimes is mandated by the
Inter-American Court in dozens of rulings.
(b) Domestic political factors
IR scholars have emphasized that ―domestic regime-type, in general, and liberal democracy, in
particular, are important factors for explaining compliance with international commitments.‖99
Fewer studies, however, have taken these insights into the realm of judgment compliance. An
exception is an article that focuses on the European Court of Human Rights. Hillebrecht tracks
how different sub-state actors use the rulings of the ECHR to advance their own political
agendas.100 More studies of this type are needed. Potential factors that impact judgment
compliance are regime-type -- whether we are speaking of democracy or autocracy – and also
whether the state is a transitional country keen on signaling its participation in international
arena, or whether it is an established international player. Also, it may matter if the state has an
active civil society.101 Finally, state capacity is an important issue when remedies require
structural change: executives may have the political will to comply, but simply cannot. In
examining compliance to pilot judgments of the European Court of Human Rights, in which the
court mandates structural reform of state bureaucracies, Leach, Hardman and Stephenson find
97
Christopher K. Lamont, International Criminal Justice and the Politics of Compliance. (Ashgate Publishing Ltd.,
Surrey 2010).
98
Ellen Lutz and Kathryn Sikkink,` The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials
in Latin America‘ (2001) 2 Chicago Journal of International Law 1.
99
Laurence Helfer and Anne-Marie Slaughter supra note 20.
100
Courtney Hillebrecht supra note 31.
101
Lisa J. Conant, Justice Contained: Law and Politics in the European Union (Cornell University Press, Ithaca
2002); Rachel A. Cichowski, The European Court and Civil Society (Cambridge University Press 2007).
22

that one cause of non-compliance is simply lack of capacity.102 This likely also holds true for
cases of noncompliance to orders to prosecute in the Inter-American System. Some states
subject to complex orders have weak, corrupt legal systems, and compliance will not come
quickly.
(c) Non-state subjects of IC orders
States are not the only subjects of international court orders. The international criminal courts, in
particular, hold trials in which witnesses, defense counsel and individual defendants are subject
to the tribunal‘s authority as individuals. In managing trials, the criminal criminal courts are
uniquely able to enforce their orders: they can hold individuals in contempt, and can even have
them detained. Trails have not always gone smoothly: defendants such as Slobodan Milosevic
have been keen to disrupt trials with non-compliant courtroom behavior; corrupt defense lawyers
have split fees with clients; staffers have leaked confidential information, and witnesses
frequently bear false testimony.103 This is a realm of deserving of more study, but the insights it
reveals might not be generalizable beyond the criminal realm.
A closer analog to state compliance is the compliance of international organizations.

Again, the ICTY proves illustrative. The ICTY faced the challenge of issuing orders to assist
with investigations in Kosovo, where sovereignty was unclear and shifting. In 1999, the UN
created the United Nations Interim Administration Mission in Kosovo, which took on most
administrative responsibilities. David Lamont reports that the Court had less success in
garnering compliance from UNMIK than it did from the nation-states, in part because of
UNMIK‘s uncertain status before a Security Council court.104 Arguably, the compliance
dynamics will be different between a court and an IGO which the court is linked to
institutionally, than where the IGO is more loosely linked to the court (as in the ICTY/UNMIK
scenario). The ECJ, for example, reviews state legislation, but it also subjects EU secondary
102
Philip Leach, Helen Hardman and Svetlana Stephenson, Responding to Systemic Human Rights Violations - An
Analysis Of Pilot Judgments of the European Court of Human Rights and Their Impact at National Level
(Intersentia, Cambridge 2010).
103
Nancy Combs, Fact-Finding without Facts: The Uncertain Evidentiary Foundations of International Criminal
Convictions (Cambridge Univ. Press, Cambridge 2010).
104
Christopher K. Lamont supra note 64.
23

legislation such as directives to judicial review.105 The ICJ, through its advisory jurisdiction, also
reviews legal and factual determinations of other UN bodies.106
3) Judgment compliance and features of the dispute
Features of the dispute itself can be viewed separately from factors having to do with the IC
treaty regime or the state. Those studying compliance with ICJ judgments, for example, have
focused on whether the disputes have to do with competing interstate claims over territory and
bodies of water, and are therefore more intractable.107 Paulson found that such disputes ―received
the lowest levels of compliance.‖108 Schulte argues that ICJ judgments in cases of a ―highly
political character of the underlying dispute, which often involved the use of force,‖ are more
likely to be defied.109 The level of determinacy of the relevant body of law also mattered, with
the ICJ as ―particularly ill equipped for situations where the law is very much in development.110
Subject matter might also matter in that some disputes will attract the interest of the third
parties, raising the stakes on noncompliance. In the realm of international criminal law, for
example, third states have played a key role in pressuring for compliance to tribunal orders. The
African Union had to move its 2012 summit when the originally designated state, Malawi,
capitulated to threats to cuts in aid from third countries, and refused to allow Sudanese President
Al Bashir to attend. The concern was that the ICC had issued an arrest warrant for Bashir. Of
course, third-country pressure can cut both ways. It is also the case that the African Union has
encouraged states to thwart the ICC warrant, undermining the tribunals‘ efficacy in the region.
A more structural feature of the dispute is whether the underlying problem can be
described as a coordination game, in which ―parties have fully or partially common interests that
can be achieved only if they coordinate their strategies among multiple possible equilibria.‖111
105
A famous case, in this respect, was the Kadi case. See Gráinne de Búrca, ―The European Court of Justice and the
International Legal Order after Kadi‖ (2010) 1(51) Harvard International Law Journal 1.
106
See Mark Angehr ―The International Court of Justice´s Advisory Jurisdiction and the Review of Security
Council, and General Assembly Resolutions‖ (2009) 103 Northwestern University School of Law 1007.
107
Sara McLaughlin Mitchell and Paul R. Hensel, ‗International Institutions and Compliance with Agreements‘
(2007) 51 American Journal of Political Science 721.
108
Colter Paulson supra note 44, at 457.
109
Constanze Schulte supra note 35, at 413.
110
Ibid, at 414.
111
Tom Ginsburg and Richard H. McAdams supra note 41, at 1235.
24

Ginsburg and McAdams argue that most international disputes fall into this category. The
reason there is, generally speaking, high compliance to IC rulings is that ICs provide states with
important information which helps them better coordinate towards shared interests. In a nutshell,
―adjudication works in part by clarifying ambiguity in the underlying conventions players
observe, thereby facilitating coordination between the players.‖112 Compliance, therefore, is
symptomatic of improved coordination.
The relative power of the parties to the dispute might also matter to judgment
compliance, as realists would predict and WTO studies suggest: Developing states do less well in
enforcing DSM judgments against larger states.113
4) The effects of judgment compliance and noncompliance
So far the focus in this chapter, as in most of the scholarship, has been on factors that predict
compliance, with compliance cast as the dependent variable. But the effects of compliance
deserve more attention. Once we free compliance from its role as an indicator for effectiveness,
for example, the question arises, does compliance ever correlate with effectiveness? Under what
circumstances? Further, if judgment compliance and primary norm compliance are distinct
phenomena, what is their relation? When does judgment compliance foster compliance with the
underlying treaty obligation? Gibson and Caldeira argue that legitimacy promotes compliance;114
does compliance, in turn, engender legitimacy? Such questions have received little systematic
inquiry as they pertain to ICs.
A key insight of judicial politics scholars is that courts strategically design remedies to
attain particular goals, including compliance.115 Thus Dothan argues that the European Court of
Human Rights consistently issues ―the costliest judgment that it expects the state to actually
112
Idem.
113
Petros C. Mavroidis supra note 71.
114
James L. Gibson and Gregory A. Caldeira supra note 18.
115
Clifford J. Carrubba, Matthew Gabel, and Charles Hankla Supra note 20; Laurence Helfer and Anne-Marie
Slaughter supra note 20; Shai Dothan, ‗Judicial Tactics in the European Court of Human Rights‘ (2011) 12 Chicago
Journal of International Law 115; Yuval Shany Supra note 16; Jeffrey K Staton and George Vanberg supra note 21.
25

comply with.‖116 Over time, if the court gets it right, ―its reputation is likely to increase, which in
turn will enable it to issue increasingly costly judgments that states are able to comply with.‖117
Non-compliance has also received attention. Several studies highlight how political
actors use non-compliance as a tool to constrain courts and temper their rulings. 118 The ECJ,
Carubba et al argue, shapes its rulings to conform to state preferences in response to threats (as
opposed to actual acts) of non-compliance and override. Further, ―threats of noncompliance are
more influential on judicial rulings than threats of override.‖119 Note that this argument is another
approach to the question of whether the ECJ independently influences the direction of the EU, or
merely reflects state preferences. The first group aimed at explaining compliance to ECJ rulings;
this group seeks to explore the effects of threats of noncompliance on ECJ rulings. Alex Stone
Sweet and Brunquell reject Carubba et alt.‘s findings, arguing that the effect of non-compliance
is only to create more litigation, pressuring governments to comply.120
III. FURTHER STUDY
It is true, as compliance skeptics suggest, that many of the factors highlighted above as leading to
higher compliance reflect shallow cooperation. Thus, states comply more when the order is less
costly, compliance is greater when states agree to litigation of the particular dispute, and
enforcement mechanisms do not work against the stronger states. Even these studies, however,
are useful: they reveal specific sources and mechanisms of non-compliance, and thus allow legal
actors to work towards their overcoming. The good news on compliance may be bad news on
cooperation, but it is nonetheless important information for those interested in improving
compliance within particular regimes.
But the some of the studies point to a different dynamic. They reveal that courts are not
epiphenomenal, with their judgments merely reflecting pre-existing levels of cooperation.
Rather, they exert independence influence on states. These studies highlight the role of ICs as
116
Shai Dothan supra note 115, at 3.
117
Idem.
118
Clifford J. Carrubba, Matthew Gabel, and Charles Hankla supra note 20; Laurence Helfer and Anne-Marie
Slaughter supra note 20.
119
Clifford J. Carrubba, Matthew Gabel, and Charles Hankla Supra note 20, at 449.
120
Alex Stone Sweet and Thomas Brunquell, ‗The European Court of Justice, State Noncompliance, and the Politics
of Override‘ (2012) 1 American Political Science Review 204.
26

political actors able to alter compliance dynamics, with litigation in some ways altering the
stakes from what they would have been without the adjudication. Thus, the ICTY effectively
used soft power to pressure states toward cooperation and compliance; the ECJ forged
compliance partnerships with national courts that pushed states in directions they had not
foreseen; the ECHR strategically uses remedial compliance to construct its legitimacy; and the
Inter-American Court shames states by publishing compliance reports.
More studies of both kinds are needed. Below are listed four suggestions for deepening the
study of judgment compliance.
1) Compare across treaty regimes and IC types.
One objective of the editors of this Handbook is to provoke dialogue among those who study
adjudication within different treaty regimes, and to foster more comparative study of ICs.
However, if measuring compliance to a single IC is tricky, as argued above, the problem is
compounded when we try to compare across ICs. Scholars have begun conceptualizing ways of
measuring compliance in ways that facilitate comparison.121 More such work is needed. In
particular, it is important to take into account the effects of differing remedy designs, and
different legal subject matter areas.
2) Deepen dialogue with scholars of national courts.
Since the 1990s, comparative judicial politics has emerged as a rich and productive field of
study. These studies, focused on national legal systems, have arguably understated the incidence
and importance of non-compliance to court rulings.122 However, there is an emergent interest in
implementation and compliance, and these studies hold insight into the role courts, the executive,
and civil society play in enforcement of rulings. As Staton and Moore write, ―scholars writing
about judicial power at the domestic and international levels are, and should be, writing in one
coherent literature‘.123 They would benefit from greater dialogue. Some scholars have already
121
Courtney Hillebrecht supra note 30; Diana Kapiszewski and Mathew Taylor supra note 4.
122
123
Jeffrey K. Staton and Will H. Moore, ‗Judicial Power in Domestic and International Politics‘ (2011) 65
International Organization 553.
27

begun crossing these boundaries in their own work, particularly those working on Europe.124 But
there is room for more. For example, many comparative public law scholars have been focusing
on public law litigation of economic and social rights.125 They should include in their inquiries
into implementation of complex injunctive relief the experience of the transnational human rights
tribunals. Differences between the national and transnational court settings will serve to shed
light on implementation of complex injunctive orders generally.
3) Research the effects of compliance.
Several new studies cast compliance not as the dependent variable, but rather seek to understand
the effects of non-compliance, and of the threat of non-compliance. More such studies are
needed. We also need research that seeks empirical support for causal relations that are often
presumed, but may not hold up under scrutiny: does judgment compliance lead to greater
primary norm compliance? Does it lead to greater legitimacy? Under what conditions does it
contribute to IC effectiveness?
4) Focus on implementation and reception as political processes.
Remedy compliance is an outcome; implementation is the process -- shaped by political and

social dynamics -- that leads to it. Much of the interest in compliance is actually an interest in
understanding the political and social dynamics processes of implementation and reception of
international judgments. This is especially the case as ICs move further into the realm of
injunctive relief, as opposed to monetary compensation. What domestic implementation
mechanisms work and how? How do national actors use court orders to advance their own
agendas in the political arena? What constellations of different actors yield state compliance?
By shifting the focus from compliance to implementation, we shift the focus to domestic social
and political processes. For many studies, particularly for those that seek to improve
compliance, it may be a better fit.
Four research questions:
124
For example, Clifford Carubba, Martin Shapiro, Jeffrey Staton and Alec Stone Sweet all do work on both
international and national courts judicial politics.
125
See for example Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in
Comparative Constitutional Law (Princeton University Press, Princeton 2008).
28

1. How can we fruitfully compare judgment compliance across different types of
international adjudicative bodies?
2. How can we fruitfully compare national to international adjudication, and, specifically,
what can the two fields learn from each other on the topic of judgment compliance?
3. What impact does judgment compliance have on effectiveness, legitimacy and judicial
power?
4. What domestic political processes foment implementation and reception of international
judgments?
29

List of Abbreviations:
DSM - Dispute Settlement Mechanism
ECHR - European Court of Human Rights
ECJ - European Court of Justice
EU - European Union
IAS - Inter-American System for Human Rights
IC - International Courts
ICC - International Criminal Court
ICJ - International Court of Justice
ICTR - International Criminal Tribunal for Rwanda
ICTY - International Criminal Tribunal for the Former Yugoslavia
OAS - Organization of American States
SC - Security Council
UN - United Nations
WTO - World Trade Organization
30

RECOMMENDED READINGS
Alter, Karen. 2001. Establishing the Supremacy of European Law: The Making of an International Rule
of Law in Europe. Oxford: Oxford University Press. 2001.
Carrubba, Clifford J., Matthew Gabel, and Charles Hankla. 2008. ―Judicial Behavior under Political
Constraints: Evidence from the European Court of Justice.‖ American Political Science Review. 102(4):
435-452.
Downs, George W., David M. Rocke, and Peter N. Barsoom. 1996. ―Is the Good News about Compliance
Good News about Cooperation?‖ International Organization. 50:3:379-406.
Etienne, Julien. 2011. Compliance Theory: A Goal Framing Approach. Law and Policy 33(3): 305-333.
Hawkins, Darren., and Wade Jacoby. 2010. ―Partial Compliance: A Comparison of the European and
Inter-American Courts for Human Rights.‖ Journal of International Law and International Relations 6:
35-47
Hillebrecht, Courtney. 2009. "Rethinking Compliance: The Challenges and Prospects of Measuring
Compliance with International Human Rights," Journal of Human Rights Practice 3 (1): 362-379.
Kapiszewski, Diana and Mathew Taylor. Forthcoming, 2012. Compliance: Measuring and Explaining
Adherence to Judicial Rulings. Law and Social Inquiry (forthcoming).
Lamont, Christopher K. 2010. International Criminal Justice and the Politics of Compliance. Surrey:
Ashgate Publishing Ltd.
Lisa Martin. 2012. ―Against Compliance,‖ in International Law and International Relations:
Synthesizing Insights from Interdisciplinary Scholarship. Jeffrey L. Dunoff and Mark Pollack, eds. (New
York: Cambridge University Press).
Raustiala, Kal and Anne-Marie Slaughter. 2002. ―International Law, International Relations and
Compliance,‖ in The Handbook Of International Relations, Walter Carlnaes, Thomas Risse and Beth
Simmons, eds., Sage Publications, Ltd., 538-558
Rosenne, Shabtai. 2005. Provisional Measures in International Law: The International Court of Justice
and the International Tribunal for the Law of the Sea. Oxford University Press.
31

Schulte, Constanze. 2005. Compliance with Decisions of the International Court of Justice. Oxford:
Shany, Yuval. 2010. ―Compliance with Decisions of International Courts as Indicative of their
Effectiveness: A Goal-Based Analysis, 2010 Proc. Eur. Soc‘y Int‘l L. 251 (2012)
BIO:
Alexandra Huneeus is Assistant Professor of Law at the University of Wisconsin. Her current research
examines the evolution of regional human rights systems, with a focus on the Inter-American Court. Her
article ―International Criminal Law by Other Means: the Quasi-Criminal Jurisdiction of the Human
Rights Courts,‖ will appear in the American Journal of International Law (2013).
32

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Compliance with International

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COMPLIANCE WITH JUDGMENTS AND DECISIONS

I. DEFINITION, SIGNIFICANCE, AND MEASUREMENT

1) The case against compliance

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2) Why judgment compliance still matters

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3) Defining judgment compliance

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Time‘s passage also poses a measurement challenge. The definition of judgment

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II. UNDERSTANDING IC JUDGMENT COMPLIANCE

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1) Judgment compliance and features of the IC regime

(a) Consent structure

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(b) Remedy design

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(c) Provisional Measures and Order Type

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Traditional forms of international law enforcement do play a role in IC regimes. The

(e) Monitoring mechanisms

IC regimes have developed supervision mechanisms as a way to pressure towards

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(g) IC soft power and compliance constituencies

(h) IC legitimacy and independence

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Counter-intuitively, there seems to be no positive correlation between IC independence and

2) Judgment compliance and features of the state

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Related to judicial independence is the concept of compliance partnerships between

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(b) Domestic political factors

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(c) Non-state subjects of IC orders

A closer analog to state compliance is the compliance of international organizations.

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3) Judgment compliance and features of the dispute

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4) The effects of judgment compliance and noncompliance

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III. FURTHER STUDY

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1) Compare across treaty regimes and IC types.

2) Deepen dialogue with scholars of national courts.

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3) Research the effects of compliance.

4) Focus on implementation and reception as political processes.

Remedy compliance is an outcome; implementation is the process -- shaped by political and

Four research questions:

Electronic copy available at: https://ssrn.com/abstract=2198595

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DSM - Dispute Settlement Mechanism

ECHR - European Court of Human Rights