Between Law and Politics: Explaining International Dispute Settlement Behavior

Article
EJIR
European Journal of
Between law and politics: International Relations

18(2) 369–401
© The Author(s) 2011
Explaining international Reprints and permissions: sagepub.
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dispute settlement behavior DOI: 10.1177/1354066110389832
ejt.sagepub.com
Bernhard Zangl
Ludwig-Maximilians-University, Germany
Achim Helmedach
University of Bremen, Germany
Aletta Mondré
Alexander Kocks
Ludwig-Maximilians-University, Germany
Gerald Neubauer
Kerstin Blome
Abstract
Over recent decades a judicialization process of international dispute settlement
procedures has taken place. Yet, the judicialization of procedures remains meaningless
if the procedures are not used and accepted by disputing states in practice. Prominent
theoretical approaches point to different conditions under which this is to be expected.
Realism emphasizes the international distribution of power, institutionalism stresses the
importance of the institutional design of international dispute settlement procedures,
and liberalism points to the domestic institutional setting of the participating states.
Corresponding author:
Bernhard Zangl, Ludwig-Maximilians-Universität – Geschwister-Scholl-Institut, Oettingenstraße
67 München 80538, Germany.
Email: Bernhard.Zangl@gsi.uni-muenchen.de
370 European Journal of International Relations 18(2)
The article confronts these theoretical expectations with states’ actual dispute settlement
behavior in the international trade regime, the United Nations Security Council, the
European human rights regime and the regime on the protection of endangered species
in the 1970s/80s and 1990s/2000s, respectively. Its main finding is that, compared to
realism and liberalism, institutionalism fares better in explaining the judicialization of
states’ dispute settlement behavior.
Keywords
global governance, global institutions, institutionalization, intergovernmental organization,
regime, rule of law
Introduction
Over the past two decades a judicialization process of international dispute settlement
procedures (IDSPs) has taken place (Helfer and Slaughter, 1997; Keohane et al., 2000;
Merrills, 1998; Romano, 1999; Zangl and Zürn, 2004). IDSPs are procedures for mak-
ing decisions on alleged violations of international legal norms. The judicialization of
these dispute settlement procedures implies that diplomatic proceedings, which depend
on political bargaining between the disputing parties, are replaced by judicial mecha-
nisms in which independent third parties adjudicate on the basis of international law.
While a significant number of IDSPs, like the one of the United Nations Security
Council, largely follow diplomatic proceedings, it appears evident that over the last 30
years more and more IDSPs have become increasingly court-like. For instance, an
International Criminal Court (ICC) was established in 2002 and the diplomatic proce-
dure under the General Agreement on Tariffs and Trade (GATT) was replaced in 1995
by a judicial dispute settlement mechanism under the World Trade Organization (WTO)
(Zangl, 2006).
However, no matter whether judicial or political in nature, IDSPs remain meaningless
if they are not used and accepted by the members of the respective institutions in cases
of actual disputes. Therefore, research on judicialization has to analyze the evolution not
only of dispute settlement procedures, but also of states’ dispute settlement practices,
inquiring into the conditions under which states are prepared to use IDSPs as complain-
ants and accept them as defendants. Prominent theoretical approaches in International
Relations (IR) research provide different answers (Armstrong et al., 2007; Reus-Smit,
2004; Simmons, 1999). While (neo)realists (Goldsmith and Posner, 2005) emphasize
that state interests and international power constellations determine whether IDSPs are
used and accepted or not, institutionalists stress the importance of the design of the
respective dispute settlement procedures (Keohane et al., 2000; Zangl, 2008). Liberals,
on the other hand, highlight the importance of the democratic domestic institutional set-
ting of the participating states (Tesón, 1992).
This article confronts the expectations of these theoretical approaches with states’
actual dispute settlement behavior in the international trade regime (GATT/WTO), the
regime of the United Nations Security Council (UNSC), the European human rights
regime (EHR), and the regime on the protection of endangered species (CITES) in the
Zangl et al. 371
1970s/80s and 1990s/2000s, respectively. First, we reconstruct the main expectations of

realism, institutionalism, and liberalism concerning the conditions under which states
might be willing to settle their disputes through relevant IDSPs. We then analyze states’
actual dispute settlement behavior in the aforementioned regimes. Finally, we assess the
explanatory power of the three theoretical approaches. We find that, compared to real-
ism and liberalism, institutionalism fares best in explaining the uneven judicialization of
dispute settlement in the selected regimes. We conclude the article by discussing our
main findings.
Three perspectives on international law

Most IR scholars — realists, institutionalists, and liberals alike — subscribe to the view
that international law differs fundamentally from domestic law with regard to its norma-
tive (democratic legitimacy) and material (monopoly of force) underpinnings. Yet, there
is disagreement among IR scholars about the conditions under which international law in
general and IDSPs more specifically can make a difference (Armstrong et al., 2007;
Reus-Smit, 2004; Simmons, 1999: 207–212).
Realism
Many realists deny that international law can be regarded as proper law (Mearsheimer,
1994/5; Waltz, 1979) and consider it to be without effect (Goldsmith and Posner, 2005:
3–17; Morgenthau, 1948: 291–327; Posner and Yoo, 2005). Without a global authority
to enforce international law reliably, states’ power ambitions to realize their national
interest remain uninhibited by international law (Morgenthau, 1948: 291–327). Law ‘is
not a check on state self-interest; it is a product of state self-interest’ (Goldsmith and
Posner, 2005: 13). Beyond defining how states want to work together to achieve common
interests, international law is considered to be irrelevant (Goldsmith and Posner, 2005:
88; Morgenthau, 1948: 291–327).
Therefore, realists doubt that IDSPs can effectively ensure compliance with interna-
tional law in case of a dispute (Goldsmith and Posner, 2005; Mearsheimer, 1994/5;
Morgenthau, 1948; Posner and Yoo, 2005). Particularly in areas of ‘high politics’, but
also in areas of ‘low politics’, compliance with IDSPs is seen as depending on the inter-
national distribution of power (Garrett et al., 1998; Goldsmith and Posner, 2005: 13;
Posner and Yoo, 2005). It is unclear, however, which power configuration is conducive
to compliance. Some realists argue that a hegemonic distribution is beneficial to compli-
ance because only a hegemon is able to enforce law against lawbreaking states (Keohane,
1980; Kindleberger, 1976). Other realists argue — and this argumentation will be fol-
lowed here — that a balanced distribution of power is necessary for the enforcement of
international law against all states, including the most powerful ones (Morgenthau, 1948:
291–327; see also Goldsmith and Posner, 2005: 88). In this view, IDSPs cannot be effec-
tive without a balanced distribution of power as a backbone. Realism thus claims that
states’ judicialized dispute settlement behavior — that is, compliance with IDSPs — can
only be expected in areas of low politics in which a balanced distribution of power pre-
vails; but even then high levels of judicialization are generally regarded as unattainable.
Institutionalism
Institutionalists subscribe to the realist view that international law is instrumental for
states to realize common interests, but as opposed to realism they see it as an effective
constraint on state behavior (Guzman, 2008).1 If international law is serving states’ long-
term interests, they may comply with their legal commitments even if this goes against
their short-term interests. On the one hand, institutionalists emphasize that states comply
with international legal norms because it usually is in their long-term interest not to lose
their good reputation as a law-abiding member of the international community (Abbott
and Snidal, 2000; Guzman, 2008; Keohane, 1984; Simmons, 1999: 210). Having a repu-
tation as a lawbreaker would complicate future negotiations with other states over new
legal agreements. On the other hand, institutionalists argue that states comply with inter-
national legal norms in order to avoid undermining the credibility of the international
legal order (Cronin, 2001; Zürn, 2005). In this view, states are willing to comply with
international legal norms because they are aware that any violation might endanger the
international legal order whose credibility is in their own interest.
Yet, the importance of these (reputational and credibility) concerns also depends on
IDSPs (Abbott and Snidal, 2000; Goldstein et al., 2000; Koremenos, 2007).2 In the insti-
tutionalist view, IDSPs promote compliance with international legal norms because
ignoring the decision by an authorized dispute settlement body inevitably leads to a more
severe loss of both the reputation of the respective state and the credibility of the respec-
tive legal order (Simmons, 2002: 835).3 In addition, institutionalists emphasize that the
loss of reputation and/or credibility is considerably higher when states violate judicial
rather than diplomatic IDSPs (Zangl, 2006, 2008: 827–830). From an institutionalist
point of view, IDSPs can effectively channel state dispute behavior, especially when
breaches of law are adjudicated by politically independent judicial dispute settlement
bodies.4 Thus, the level of judicialization of states’ dispute settlement behavior is
expected to reflect the level of judicialization of the respective IDSPs.5
Liberalism6
Liberalism agrees with institutionalism that international law can be effective. It under-
lines, however, that this holds true only among democratic states (Slaughter, 1995;
Tesón, 1992). Due to the specific legal institutions inherent in democratic states, their
representatives are socialized into the habit of complying with the law, which, so the
argument goes, is carried over from the domestic to the international level (Helfer and
Slaughter, 1997; Moravcsik, 1995). Accordingly, liberals argue that democratic states
take their commitments to comply with international law much more seriously than non-
democratic states whose representatives are rather inclined to violate international law if
they deem fit (Armstrong et al., 2007: 91; Slaughter, 1995). In addition, democratic
countries are far more connected through cross-border complex interdependencies than
Zangl et al. 373
their non-democratic counterparts, which is also considered as supporting their propen-

sity to comply with international law (Keohane and Nye, 1977).
From a liberal viewpoint, this general disposition to comply with international law
translates into democratic states’ propensity to follow IDSPs. Yet, democratic states are
not regarded as being naive: while they may trust the compliant behavior of fellow
democracies, they know that non-democratic states’ compliance warrants special attention.
This is one main reason why democratic states are more willing to subordinate them-
selves to IDSPs in international institutions in which they are predominantly concerned
with fellow democracies (Slaughter, 1995). While liberals acknowledge that judicialized
IDSPs are generally better able to ensure states’ compliance than diplomatic IDSPs,7
they do underline that this effect largely depends on the share of democratic states within
the respective organization. In other words, the judicialization of democratic states’ dis-
pute settlement behavior is expected to reflect the share of democracies in the respective
institution.
States’ dispute settlement behavior

As discussed, these three theoretical IR approaches identify different conditions under
which IDSPs are expected to (effectively) channel states’ dispute settlement behavior
and lead to judicialized forms of dispute settlement. To assess the merits of these
approaches we now turn to analyze patterns of OECD states’ actual dispute settlement
behavior in 137 international disputes they had in four regimes — UNSC, GATT/WTO,
EHR, CITES — and in two time periods — the 1970s/80s and 1990s/2000s. Why this
focus? We concentrate on OECD states not only because they are at the center of the
international legal order, but also for reasons of comparability. As we assume that non-
OECD countries may act differently from OECD countries in cases of a dispute, we
decided to control for country characteristics. Moreover, the main reason for the focus on
disputes in the four regimes in the two time periods is that they create the variance
needed for assessing the three IR approaches. They create variance concerning the realist
balance of power condition (see Table 2), the institutionalist judicialized procedure con-
dition (see Table 4), and the liberalist democratic membership condition (see Table 5).
Following the logic of a most different systems design (Przeworski and Teune, 1970), we
also chose this focus because the four regimes and the two time periods are distinct with
regard to very many other conditions. To assess whether the approaches hold true under
different circumstances, we selected regimes from the fields of security (UNSC), the
economy (GATT/WTO), human rights (EHR), and the environment (CITES) and allo-
cated for each of the four regimes a time period from the Cold War era of the 1970s/80s
and the post-Cold War era of the 1990s/2000s.
To evaluate the theoretical approaches, it is imperative to draw unbiased samples of
disputes for each of the four regimes and the two time periods. Thus, we identified
complaints about alleged violations of international legal norms independently of
whether the IDSP of the respective regime was invoked.8 To limit the samples to a man-
ageable size we searched for complaints about the violation of one specific norm of the
respective regime (see below). To identify complaints we checked various sources,
including newspaper articles (electronic keyword search) and official documents
(manual search). The samples consist of all complaints that are concerned with this
specific norm. After having identified eight examples of disputes — one for each of the
four regimes in each of the two time periods — we produced for each of the 137 dis-
putes a brief, structured description to code states’ dispute settlement behavior accord-
ing to the following patterns:9
1. Following behavior: The behavior of state parties to a dispute was coded as

‘following’ if they tried to settle the dispute through the relevant IDSP and
acted throughout the whole dispute according to its rules. In our sample, US
behavior after Iraq’s aggression against Kuwait in 1990 provides an example.
The US turned to the UNSC early on in the dispute, and when Iraq refused to
comply with the UN resolution demanding its withdrawal from Kuwait, the US
requested the UNSC to employ economic sanctions. After their failure, the US
turned to the UNSC again to request — and receive — the authorization of mili-
tary enforcement measures. Only then did the US engage in war to liberate
Kuwait from Iraqi occupation.
2. Avoiding behavior: If states do not violate the relevant IDSP in case of a dispute
while at the same time not trying to employ it, we coded this as ‘avoiding’ behav-
ior. This may imply that states abstain from invoking the procedures or offer a
friendly settlement outside the procedures, but also that states use their right of
veto in order to prevent the procedure from being employed. In our sample, the
Citrus/Beef dispute of the 1980s between the US and Japan provides an example.
In 1981, the US complained that Japanese quotas for both the importation of
citrus and beef products violated GATT law. Despite the fact that the US threat-
ened to invoke a GATT dispute settlement procedure, it was willing to accept
Japanese offers to negotiate about an agreement outside of GATT. Representatives
from both states met for a couple of bilateral negotiations until they finally came
to an agreement in 1984, according to which Japan had to increase import quotas
for citrus and beef products from the US.
3. Following, then avoiding behavior: The behavior of states was coded ‘following,
then avoiding’ if they followed the relevant IDSP early in the dispute, but tried to
avoid it later on. With regard to the EHR regime, the case Z.R. vs Poland is an
example. It concerns the length of the complainant’s pre-trial detention and his
allegation that he was denied the right to review his detention judicially. Although
the European Court of Human Rights declared the complainant’s application to
be admissible, the Polish government, which first acted in line with the Court’s
rules of procedure by providing all relevant information, eventually settled the
dispute outside the court by granting the complainant compensation. In doing so,
Poland avoided an official conviction by the Court.
4. Disregarding behavior: We coded behavior as ‘disregarding’ if states violated the
rules of the relevant IDSP — no matter whether temporarily or continuously. The
case of Greece, which disregarded CITES decisions to strengthen its border con-
trols for trade in endangered species, is illustrative. In the early 1990s, the CITES
Secretariat received information that Greece failed — inter alia — to designate
Zangl et al. 375
an authority to control trade in endangered species. Greece, however, tried to

block the resulting procedure by disregarding its duty to provide information
about its legislation. Furthermore, it ignored CITES’s instruction to bring its leg-
islation into conformity with the obligations of the Convention. Only when
CITES member states implemented trade sanctions as recommended by the
Standing Committee did Greece finally comply with its CITES obligations.
For the assessment of judicialization in state dispute settlement behavior, we focus on the
relative frequency of the above patterns. As they might differ substantively, we assess — if
applicable — these relative frequencies separately for states that found themselves in the
position of a defendant and states that acted as a complainant. In any case, for the assess-
ment we rely in particular on the frequency of the following pattern relative to the disre-
garding behavior. If the following pattern in one regime increases in frequency over time
relative to the disregarding pattern, then one can speak of judicialization. If it decreases in
frequency, then we speak of de-judicialization.10 If the following behavior is higher in
frequency relative to the disregarding pattern in one regime compared to another, we
speak of a higher level of judicialization in this particular regime. Despite the fact that we
mainly relied on these relative measures of judicialization, we also defined, for reasons of
convenience, an absolute measure of judicialization: if in a particular regime and a speci-
fied period of time the following behavior occurs more than twice as often as the disre-
garding pattern, then we speak of a high level of judicialization. The level of judicialization
is medium when the following pattern occurs more frequently than the disregarding
behavior. For all other relative frequencies — especially when the disregarding behavior
occurs more frequently than the following behavior — we regard judicialization as low.
Moreover, if in one regime the levels of judicialization differ between states acting as
complainants and as defendants, we always code the lower level for their overall issue-
area-specific dispute settlement behavior.11
Dispute settlement under GATT/WTO

With regard to the international trade regime, we analyzed all disputes over alleged vio-
lations of GATT/WTO restrictions on the import of agricultural or foodstuff products
between 1980–6 and 1995–2000. The sample, which is based on states’ complaints that
were reported in quality newspapers (New York Times, Financial Times, etc.) and infor-
mation services (Agence Europe, Agra Europe), consists of 11 cases for the 1980s and 39
cases for the late 1990s.
OECD countries as complainants. The comparison of international trade disputes in the

1980s and late 1990s reveals increased judicialized behavior — from a medium to a
high level — when OECD states act as complainants. In our sample, this happened 10
times in the 1980s and in 32 disputes in the 1990s. Focusing on the frequency of the
following pattern, the trend toward judicialization does not appear to be obvious. In
both decades, in roughly one-third of the cases — three out of 10 and 11 out of 32,
respectively — complainants displayed following behavior (see Figure 1). Some of
these disputes involved trade measures of minor importance, but others amounted to
major trade rows such as the highly disputed hormone case in which the US, notwith-
standing EC non-compliance, strictly followed WTO dispute settlement procedures
and refrained from taking the law into its own hands (WT/DS26/R; WT/DS26/ARB).12
Yet the judicialization of OECD states’ behavior as complainants becomes apparent if
we take into account the decrease in disregarding behavior from three out of 10 to only
one out of 32 cases (see Figure 1). In the 1980s, cases like the dispute over citrus
products between the US and the EC routinely led to disregarding behavior. In that
particular case, the US and the EC agreed to invoke the GATT procedure in 1983
(GATT C/M/160; GATT C/M/162), but as the EC refused to accept the panel report in
1985 (Hudec, 1993: 504), the US reacted unilaterally by first threatening and eventu-
ally imposing sanctions on imports from EC countries.13 By contrast, in the 1990s only
one case in our sample included such blatant disregarding behavior by a complainant,
namely, the infamous dispute over bananas between the US and the EC in which the
US again imposed unilateral sanctions as a reaction to EU attempts to circumvent
adverse WTO rulings.14
In addition, the judicialization of states’ dispute settlement behavior as complainants
under GATT/WTO is also reflected in the frequency of the avoiding relative to the fol-
lowing, then avoiding behavior. In our sample the avoiding pattern, while common in the
1990s, decreased compared to the 1980s from three out of 10 to six out of 32 cases. At
the same time, the following, then avoiding pattern increased in frequency from one out
of 10 in the 1980s to 14 out of 32 in the late 1990s. Today, almost half of all disputes are
referred to the Dispute Settlement Body (DSB) of the WTO first, but ultimately solved
outside the WTO through direct negotiations among the conflicting parties. For example,
in a dispute between the EC and New Zealand over spreadable butter, New Zealand
complained to the DSB that the EC’s regulation on the fat content of butter products was
Figure 1. States’ dispute settlement behavior as complainants in GATT/WTO

Zangl et al. 377
an unfair trade measure that put imports from New Zealand at a disadvantage with others
(WT/DS72). When the bilateral consultations failed, New Zealand requested the estab-
lishment of a dispute panel, but even after the panel had started its work, the parties
continued negotiating and ultimately arrived at a mutually acceptable solution.15 Hence,
while disputes were frequently dealt with outside of the GATT dispute settlement mecha-
nism in the 1980s, they are now increasingly settled in the shadow of ongoing WTO
proceedings, that is, in the shadow of law.
OECD countries as defendants. Remarkably, this trend toward more judicialized dispute
settlement behavior holds true not only for complaining but also for defending OECD
states. In our sample, which consists of 11 disputes in the 1980s and 32 in the 1990s (see
Figure 2), we observe a strong trend toward judicialization — from a low to a high level.
This trend is already reflected in a strong increase in the following pattern from two out
of 11 cases in the 1980s to 11 out of 32 in the 1990s. Nowadays, in more than one-third
of all trade disputes in the WTO, defendants are willing to accept third-party decisions.
Thus, in the late 1990s, cases like a complaint against the US brought forward by New
Zealand and Australia concerning safeguard measures on lamb imports, in which the US
accepted an adverse WTO ruling, are much more common than in the 1980s.
The judicialization of states’ dispute settlement behavior is, however, mainly reflected
by the fact that the increase in the following pattern goes along with a significant drop in
the disregarding pattern. In the 1990s, defendants show remarkably less disregarding
behavior than in the 1980s — in four out of 32 cases as opposed to five out of 11. In the
1980s, nearly half of the defendants displayed disregarding behavior. For instance, in
1986 the US openly refused to adopt and comply with a GATT panel report that criticized
US regulations that affected the import of wine from the EC. They demanded that the EC
should adopt other panel reports on wine and pasta products first (GATT SCM/71
39S/436; GATT SCM/M/31). This kind of irregular dispute behavior is largely absent
Figure 2. States’ dispute settlement behavior as defendants in GATT/WTO

today. Apart from rare exceptions, like the EC in the prominent cases on bananas and
hormones, defendants are willing to comply with WTO rulings. Moreover, the judicial-
ization of OECD states’ dispute settlement behavior under GATT/WTO is also indicated
by the observation that the following, then avoiding pattern increased at the expense of
the avoiding pattern. The fact that the former increased from one out of 11 to 11 out of
32 cases, while the latter went down from three out of 11 to six out of 32 cases, seems to
indicate that the shadow of GATT/WTO procedures has become stronger in the 1990s
compared to the 1980s.
In sum, our comparison of dispute settlement in the GATT/WTO context in the
1980s and 1990s reveals a clear trend toward the judicialization of states’ dispute
settlement behavior not only when they act as complainants but also — and particularly
so — when they are defendants. The overall level of judicialization increased from low
to high.
Dispute settlement under the UNSC regime

Turning to the UNSC, we investigated whether and to what extent OECD states followed
UNSC procedures to settle disputes on alleged threats to international security between
1974–83 and 1990–9, respectively.16 Our sample consists of all the 29 complaints in which
states expressed (according to UN files) their concern that a situation was threatening inter-
national security — 14 of which arose in the 1970s/80s and 15 during the 1990s.
OECD countries as complainants. When comparing patterns of OECD states’ dispute set-
tlement behavior as complainants in the 1970s/80s and the 1990s, we do not find a trend
toward more judicialization. Since the following and the disregarding patterns have
increased simultaneously at the expense of the following, then avoiding pattern, the
Figure 3. States’ dispute settlement behavior as complainants in the UNSC

Zangl et al. 379
judicialization of dispute settlement behavior remains constant on a medium level. While

in the 1970s/80s OECD states followed procedures in only two out of six cases, they did
so in four out of nine cases in the 1990s (see Figure 3). The best known case is the US-led
opposition to Iraq’s annexation of Kuwait in 1990 (S/21424; S/21426).17
However, the increase in the following pattern does not go along with a decrease
of the disregarding pattern. To the contrary, the disregarding pattern has also increased
in frequency, occurring in only one out of six instances in the 1970s/80s, but in
three out of nine disputes in the 1990s. In our sample of the 1970s/80s, the complaint
by the United Kingdom concerning its conflict with Argentina over the Falkland
Islands (Malvinas) in the spring of 1982 represents the only case (S/14940). The
United Kingdom organized multilateral economic sanctions against Argentina outside
the UNSC framework (Martin, 1992) and eventually engaged in war. Such conflicts,
in which OECD states addressed the UNSC at an early stage but disregarded its
procedures later in the dispute, became more common in the 1990s. Examples from
our sample include the situation of the Kurds and Shiites in Iraq,18 the war in Bosnia
(S/23833; S/23838), and the conflict in Kosovo (S/1998/567). OECD states brought
these conflicts to the attention of the UNSC, but later in the conflict decided to exceed
relevant UNSC decisions (Gazzini, 2001: 430–434; Murphy, 1996: 185; Weller, 1996:
147–148, 163). In each of these cases they decided to take the law into their own
hands and engaged in military actions without sufficient UNSC authorization.
OECD countries as defendants. If we look at disputes with OECD states as defendants

we see remarkably different patterns, but, again, no process of judicialization. On the
contrary, judicialization of state dispute behavior in the UNSC context remained con-
stantly low, even with a slight trend toward de-judicialization. When OECD states
were accused of threatening international security, we do not see the following or the
Figure 4. States’ dispute settlement behavior as defendants in the UNSC

disregarding pattern at all; we merely see the following, then avoiding and the avoid-
ing patterns, both an indication for the minor role the UNSC procedure plays when
OECD countries are accused of threatening international security (see Figure 4).
Admittedly, this may reflect the fact that all the accusations in our sample were made
against permanent members of the UNSC, entrusted with the right to veto resolutions.
But the frequency of avoiding increased at the expense of the following, then avoid-
ing pattern, thus indicating that the already moderate role of the UNSC in the
1970s/80s was further diminished when OECD states were accused of threatening
peace in the 1990s.
The following, then avoiding pattern decreased from seven out of nine in the 1970s/80s
to three out of six cases in the 1990s. In the 1970s/80s it was still quite common to refer
charges against OECD states to the UNSC. For instance, during the Cod War, Iceland
complained about British naval operations in its (newly extended) coastal waters
(S/11905; S/11907). As a UNSC meeting failed to produce a settlement, the parties even-
tually took up negotiations mediated by Norway, which resulted in an agreement that
solved the dispute (Thór, 1995). In the 1990s, by contrast, such charges were increas-
ingly dealt with entirely outside the UNSC procedures. Thus, in our sample the avoiding
pattern increased from two out of nine in the 1970s/80s to three out of six cases in the
1990s. In some of those cases, disputes were not even put on the UNSC agenda. For
instance, when Sudan alerted the UNSC to the US bombing of a Sudanese factory in
1998, the US as a permanent member of the UNSC managed to keep the issue off the
agenda, despite repeated complaints by Sudan (S/1998/789). The US argued that they
had bombed the plant to destroy chemical agents used by terrorists, while Sudan main-
tained that the plant had produced pharmaceuticals (Barletta, 1998).
In sum, though OECD states’ dispute settlement behavior under the UNSC regime
(both as complainant and defendant) has changed, it has not undergone a process of judi-
cialization. Taken together, for complainants and defendants, the overall level of judi-
cialization in the UNSC remains at best constant at a low level.
Dispute settlement under the EHR regime

With regard to the European human rights regime, we scrutinized disputes over alleged
violations of the ‘Right to Liberty and Security’ as laid down in Article 5 of the European
Convention on Human Rights.19 Unlike in the GATT/WTO and the UNSC regimes, our
sample of human rights disputes is not based on complaints that are brought by states
against other states, but on complaints brought by individuals. We can thus analyze states’
dispute settlement behavior only when they are positioned as defendants, not as
complainants. When comparing member states’ behavior in the 41 cases that we
identifieds — using the Courts’ online database HUDOC20 — we found a constant high
level of judicialization between 1981–92 and 2002–4.
The high level of judicialization of states’ dispute settlement behavior in both periods
already becomes obvious when we look at the frequency of the following pattern in our
sample. In the 1980s as well as the 2000s, in roughly three-quarters of the cases (19 out
of 22 in the 1980s and 14 out of 19 in the 2000s), OECD states displayed following
Zangl et al. 381
Figure 5. States’ dispute settlement behavior as defendants under the EHR
behavior when they were accused of violating the Convention (see Figure 5). One exam-
ple from the 2000s is the case of Čonka vs Belgium, in which four Slovakian nationals
filed a complaint alleging, inter alia, that the circumstances of their arrest and deporta-
tion to Slovakia infringed their right to liberty and security. The Belgian government, in
line with the Court’s rules of procedure, filed observations on the admissibility of the
application while providing all necessary information (ECHR, 51564/99).21 Later, the
Belgian government continued to follow procedures by defining its position at a public
hearing. After the Court found that there had been a violation of the Convention, requir-
ing the defendant to pay the applicants’ compensation, the Belgian government took all
measures arising out of the Court’s judgment by promptly compensating the applicants
and reforming its legislation concerning the extradition of aliens (Committee of Ministers,
ResDH(1990)90).22
The overall high level of judicialization is also confirmed by the very low frequency
of the disregarding pattern. In our sample, we observed disregarding behavior in only
two out of 22 disputes in the 1980s and three out of 19 disputes in the early 2000s. In
these disputes, the respective states followed the procedures early in the dispute, but
disregarded them temporarily when they had to comply with adverse rulings. One exam-
ple is the case Van Droogenbroeck vs Belgium of the 1980s in which the Court required
the Belgian government to pay the complainant compensation for non-pecuniary damage
and criticized national legislation as not being in accordance with the Convention
(ECHR, 7906/77). Subsequently, the defendant informed the Committee of Ministers
about the payment as provided for in the judgment. However, the state failed to adjust
national legislation to the Convention. It took more than eight years — and a number of
similar applications to the Court — before the Belgian government introduced the
required legislative reforms (Committee of Ministers, Resolution ResDH(1990)90).
Overall, our results for the EHR regime show a constantly high level of judicialization
of states’ dispute settlement behavior in both the 1980s and early 2000s.
Dispute settlement under CITES

Finally, we analyzed disputes arising out of allegations that states were disregarding their
obligations laid down in the Convention on International Trade in Endangered Species
(CITES), to conduct border controls, punish trafficking, and designate a Management and
Scientific Authority, respectively. As in the case of human rights, we analyze states’ dispute
settlement behavior only when they are in the position of a defendant since complaints are
usually brought by NGOs and the CITES Secretariat, but only rarely by states. For such
allegations we researched newspapers, reports of the CITES Secretariat, and publications
of TRAFFIC (an NGO specializing in monitoring species trade). This approach yielded a
sample of 17 cases — 10 cases from 1978–87 and seven from 1988–97.
For OECD states’ dispute settlement behavior under CITES we find a low level of
judicialization for both the 1970s/80s and 1980s/90s. The disregarding pattern, which
we observed in six out of 10 cases in the 1970s/80s and in four out of seven in the
1980s/90s, is by far the most frequent (see Figure 6). In some of the cases, the accused
state disregarded the procedure only temporarily by failing to implement adverse CITES
decisions in due time. But in other cases the respective states violated the CITES proce-
dures much more consistently. One case in point is the 1989 dispute concerning Italian
deficits in implementing CITES obligations (CITES, 1996: 521). From early on, Italy
ignored the requests for information made by the Secretariat (CITES, SC.24.7.) and
failed to comply with the CITES decision that it had to change its wildlife legislation
and tighten border controls.23 Even when in late 1991 the CITES Standing Committee
threatened trade sanctions, Italy did not give in. Only when trade sanctions were
effectively decided two years later, did Italy enact the required wildlife legislation
(CITES, SC/28; SC/29).
The low level of judicialization under CITES is not only reflected in the relatively
high frequency of the disregarding pattern, but also in the extremely low frequency of the
Figure 6. States’ dispute settlement behavior as defendants in CITES

Zangl et al. 383
Table 1. Levels of judicialization in four issue-areas of international relations
1970s/80s 1990s/2000s Trend
GATT/WTO Low High Strong increase

UNSC Low Low No change
EHR High High No change
CITES Low Low No change
following pattern with only two out of 10 cases in the 1970s/80s and just one out of seven
disputes in the 1980s/90s. One of the few exceptions are the allegations against Germany
in 1980 of regularly accepting false export licenses for wild cat furs (CITES, 1982: 709).
The Secretariat investigated the case and Germany, though defending its practice,
followed the procedure by responding to information requests. While denying that it had
violated the Treaty, Germany changed its practice after the Secretariat had reported to the
Conference of Parties (1981) that its practice of accepting export licenses was not in
compliance with its CITES obligations (CITES, 1982: 412).
In sum, comparing states’ dispute settlement behavior under CITES in the 1970s/80s
with the 1980s/90s we observed constant low levels of judicialization.
Explaining uneven judicialization

Our analysis of states’ dispute settlement behavior under four international regimes sug-
gests an uneven pattern of judicialization (see Table 1). Are the theoretical approaches
discussed above — realism, institutionalism, and liberalism — able to shed light on this
pattern? Are they able to account for the high levels of judicialization in both the WTO
and the EHR regimes while at the same time explaining the low levels of judicialization
in the GATT, UNSC, and the CITES regimes?
Realism
Our evidence suggests that the realist explanation based on the distribution of power and
the distinction of high vs low politics fails to explain uneven judicialization of states’
international dispute settlement behavior. To assess whether the distribution of power in
any given regime is balanced, unbalanced, or hegemonic (i.e. highly unbalanced) we
look at issue-area relevant power resources. For lack of any precise definition we assume
the distribution of power to be balanced when the power resources of the most powerful
state do not exceed those of the second most powerful state by more than a factor of 1.5.
The distribution of power is defined as unbalanced when the power resources of the most
powerful state are more than 1.5 times but less than 2.0 times higher than those of the
second most powerful state. And according to our definition a highly unbalanced, that is,
hegemonic, distribution of power prevails when the power resources of the most power-
ful state exceed those of the second most powerful state by a factor of at least 2.0.24
To begin with, realist expectations with regard to states’ dispute settlement behavior
are confirmed by the low — and even slightly decreasing — level of judicialization in
the UNSC regime. As issues of international security clearly belong to the area of high
politics, realists anticipate a low level of judicialization independently of the power con-
stellation. Moreover, realists can point to shifts in the global distribution of power as an
explanation for the mild trend of de-judicialization. Taking military expenditures as a
proxy for power in the UNSC regime (Mearsheimer, 2001), we see that the balanced
distribution of power of the 1970s/80s gave way, first, to an unbalanced and, later, to a
hegemonic distribution of power in the 1990s/2000s. While in the mid-1970s, the expen-
ditures of the two most powerful states — the US and the USSR — ran to an estimated
US$140 bn and US$120 bn p.a., respectively (SIPRI, 1984), this balance has been offset
in the 1990s. In 2000, US military expenditure ran to 280US$ bn — more than six times
higher than that of Russia, whose military expenditure was the second-highest at around
US$44 bn (SIPRI, 2001). The resulting shift in the global power constellation might
explain why in the 1990s/2000s the level of judicialization of states’ dispute settlement
behavior in the UN context decreased from the already low level of the 1970s/1980s.
By contrast, realist expectations are not confirmed with regard to disputes in the
GATT/WTO regime; the manifest judicialization of state dispute behavior under GATT/
WTO — while possibly facilitated by the fact that trade issues belong to the area of low
politics — cannot be attributed to shifts in the power constellation specific to the issue-
area. Taking states’ gross domestic product (GDP) as the indicator, there has been a bal-
anced distribution of power in the international trading regime from the 1970s/80s
through the 1990s/2000s.25 The GDP of the US — the most powerful state — has always
been only slightly higher than that of the second most powerful actor — the EC. In 1980
and 1995, for instance, it was merely 1.19 and 1.14 times higher than the combined
GDPs of the (then nine and 15, respectively) EC member states. As the distribution of
power was constantly balanced in both periods, the trend from a low judicialization
under GATT to a high judicialization under the WTO remains unexplained.
Yet, the high level of judicialization in the EHR regime serves to confirm realist pre-
dictions at least to some degree. First, human rights issues are generally considered to be
part of low politics, a factor that might have facilitated the judicialization of states’ dis-
pute settlement behavior under the European human rights regime. Second, the equal
distribution of power among Europe’s strongest states — Germany, France, and Great
Britain — in terms of both their military expenditure and gross domestic product might
also have contributed to the high level of judicialization. In the early 1980s, the military
expenditures of Germany, France, and Britain ran to around US$25 bn each (SIPRI,
1989). Germany’s GDP was 1.4 times higher than that of Britain and France in that
period. In 2002, military expenditures amounted to approximately US$51 bn for France
and Britain, and thus 1.3 times more than those of Germany (SIPRI, 2007). In turn,
Germany had with US$1700 bn a 1.3 times higher GDP in 2002 than either France and
Great Britain. The balanced distribution of power may thus have contributed to the judi-
cialization in the EHR regime to some extent, but due to its general skepticism, realism
cannot account for the exceptionally high level of judicialization of the regime.26
The expectations of realism are not fully confirmed in the CITES regime either. From
a realist viewpoint, the issue-area-specific conditions for at least some degree of judicial-
ization are comparatively good (in fact equally good as in the EHR and GATT/WTO
regimes). To begin with, issues of trade in endangered species belong to the area of low
Zangl et al. 385
Table 2. Realist expectations and actual levels of judicialization
Issue-area Power distribution Expected trend of Observed level of

1970s/80s à 1990s/2000s judicialization judicialization
UNSC High politics Balanced à unbalanced Low à low Low à low

WTO Low politics Balanced à balanced Medium à medium Low à high
EHR Low politics Balanced à balanced Medium à medium High à high
CITES Low politics Balanced à balanced Medium à medium Low à low
politics. Moreover, the distribution of power in CITES was also favorable to judicialized
forms of dispute settlement. Since the relevant power resource consists of possible trade
sanctions, states’ GDP can be used as an indicator. Measured against their GDPs, taking
the same numbers as for GATT/WTO, a balanced distribution of power between the US
and the EU existed in the 1970s/80s and 1990s/2000s. Yet, whereas realism does not
preclude a medium level of judicialization to be possible, actual dispute settlement under
CITES only reached rather low levels.
Altogether, contrary to realist expectations, there is no simple correlation between
power constellations and levels of judicialization — not even in areas of low politics.
What is noticeable, however, is that wherever a high level of judicialization has been
attained a balanced distribution of power existed. This may be an indication that a balance
of power alone cannot facilitate the judicialization of states’ dispute settlement behavior,
but that without a balance of power high levels of judicialization are difficult to attain.
Institutionalism
Institutionalism fares substantially better in explaining uneven judicialization. From an
institutionalist point of view, diverging levels of judicialization of states’ dispute settle-
ment behavior are a consequence of differing degrees of judicialization of the relevant
dispute settlement procedures. To measure the degree of procedural judicialization of a
given IDSP, we constructed a gradual scale from purely diplomatic to judicial in terms of
five criteria: access to the respective dispute settlement body, as well as its political inde-
pendence, decision-making authority, legal mandate, and authority to sanction (see Table 3).
For each criterion four levels of judicialization can be distinguished, so that the overall
level of judicialization of any given IDSP can be calculated by adding the points that are
attributed to each level for each criterion. We speak of a low level of procedural judicial-
ization if the respective proceeding obtains up to 10 points, of a medium level if it obtains
11–15 points, and of a high level if it obtains more than 16 points. 27
The low level of judicialization in the UNSC regime for both the 1970s/80s and
1990s/2000s supports the institutionalist expectation that the level of judicialization of
states’ dispute settlement behavior corresponds to the level of procedural judicializa-
tion. The procedure before the UNSC is unequivocally political and thus hardly judi-
cialized (7 points, see Table 3): access is limited to states, the Council is composed of
state representatives, the procedure is — due to the permanent members’ veto power —
extremely susceptible to obstructions, and the UNSC’s mandate is to settle disputes by
Table 3. The judicialization of international dispute settlement procedures
Access Diplomatic procedure: restricted right of complaint

(Invocation of (1) No entrenched right of complaint (UNSC, CITES)
the third party) (2) Only states may invoke dispute settlement procedure (GATT, WTO)
(3) IOs and/or NGOs may also invoke dispute settlement proceedings
(4) Individuals may also invoke dispute settlement proceedings (EHR)
Court procedure: right of individual complaint
Political Diplomatic procedure: susceptible to political influence
independence (1) Political representatives of the disputing parties (UNSC)
(composition of (2) Political representatives of a third party
the third party) (3) Politically independent experts (CITES, GATT, EHR prior to reform)
(4) Politically independent judges, permanent judicial panels (WTO, EHR)
Court procedure: politically independent
Decision-making Diplomatic procedure: case-by-case jurisdiction
authority (1) Proceedings and decision can be blocked by disputing parties (GATT)
(authority of the (2) Proceedings or decision can be blocked by disputing parties (UNSC)
third party) (3) P roceedings and/or decision can be blocked not by individual disputing
parties, but by political (majority) decisions (CITES)
(4) Neither proceedings nor decision can be blocked (WTO, EHR)
Court procedure: mandatory jurisdiction
Legal Diplomatic procedure: political mandate
mandate (1) Proceedings conclude with political decision (UNSC)
(third-party (2) N on-binding procedures conclude with juridical recommendation
mandate) (CITES, GATT)
(3) Binding procedures conclude with juridical recommendation
(4) Binding procedures conclude with juridical decision (WTO, EHR)
Court procedure: juridical mandate
Authority to Diplomatic procedure: restricted sanctioning authority
sanction (1) Rights of sanction are not regulated (EHR, CITES prior to reform)
(sanctioning (2) S anctions must be authorized, but disputing parties concerned can
provisions for block them (GATT, UNSC)
the third party) (3) Sanctions must be authorized, but dispute parties affected cannot block
them (WTO, CITES after reform)
(4) Sanctions can be mandated and disputing parties cannot block them
Court procedure: extensive sanctioning authority
political means. Only with regard to its sanctioning power does the procedure go beyond
ordinary diplomatic procedures, as the UNSC may decide on both binding economic
and military sanctions (see Mondré, 2009). So it seems hardly surprising for institution-
alists that the dispute behavior of states both in the 1970s/80s and 1990s/2000s is only
marginally judicialized.
Institutionalism also offers an explanation for the trend toward remarkably higher
levels of judicialization of states’ dispute settlement behavior under the GATT/WTO
(Jackson, 1998; Petersmann, 1997; Zangl, 2006). As compared to GATT, the political
Zangl et al. 387
independence of the dispute settlement procedures has been considerably strengthened

under the WTO because dispute settlement panels made up of independent experts are
supplemented with an independent court, the Appellate Body. Moreover, the procedure
has been given a stronger legal mandate because the WTO dispute settlement panels and
the newly established Appellate Body have to take legally grounded decisions rather than
to mediate, as under GATT, politically feasible solutions. Furthermore, neither the initia-
tion of the procedure itself nor its rulings or its decisions on sanctions can be blocked
anymore (see Helmedach, 2009). This altogether remarkable judicialization of GATT/
WTO procedures (from 10 to 17 points, see Table 3) can, from an institutionalist perspective,
explain why states’ dispute settlement behavior is considerably more judicialized in the
1990s/2000s than it was in the 1970s/80s.
The EHR regime also serves to confirm institutionalist predictions. The high degree
of judicialization of states’ dispute settlement behavior corresponds to an equally high
degree of judicialization of the respective procedures.28 The procedures of the EHR
regime were highly judicialized already in the 1970s/80s. Remarkably, individuals that
had suffered from human rights violations could file a complaint against the violating
state before the European Commission on Human Rights (which decided whether to
refer the case to the Court) and decisions could be taken without the accused state being
able to block the process. In 1998 then, by reducing the Council of Ministers’ role from
being involved in adjudication to a mere watchdog of implementation and by abolishing
the Commission, this system was further judicialized. Nowadays, all complaints are
referred directly to the Court, which has the mandate to make binding decisions on the
basis of legal considerations only (Blome and Kocks, 2009). Despite the fact that the
system does not give the Court the authority to employ sanctions, the already high level
of procedural judicialization increased from 16 to 17 points (see Table 3), which, from an
institutionalist point of view, explains the high level of judicialization of states’ behavior
in the EHR regime of both the 1970s/80s and the 1990s/2000s.
Institutionalism, however, can only partially explain the level of judicialization under
CITES. The level of judicialization of the CITES dispute settlement procedure of the
1970s/80s was rather low.29 While complaints on alleged violations of CITES could be filed
with the relatively independent CITES Secretariat not only by states, but also by NGOs
(and even individuals), the Secretariat’s mandate as dispute settlement body was oriented
toward finding political solutions rather than establishing legally grounded decisions. In
addition, accused states could easily block proceedings that had already been initiated and
ensure that decisions were watered down by organizing a majority in the Conference of
Table 4. Institutionalist expectations and actual levels of judicialization
Judicialization of procedures Expected level of Observed level of

1970s/80s à 1990s/2000s practical judicialization judicialization
UNSC Low à low Low à low Low à low

WTO Low à high Low à high Low à high
EHR High à high High à high Highà high
CITES Low à medium Low à medium Low à low
States or Standing Committee. From an institutionalist point of view, this somewhat politi-
cal procedure may explain the low level of judicialization of states’ dispute settlement
behavior. In the 1990s/2000s, however, the dispute settlement system of CITES gradually
became more judicialized to the extent that it was acknowledged that CITES may recom-
mend sanctions against states that do not comply with CITES ‘rulings’ (Neubauer, 2009).
Against institutionalist expectations, this process of procedural judicialization — from a
low to a medium level (from 10 to 12 points, see Table 3) — did not translate into a compa-
rable process of judicialization with regard to states’ dispute settlement behavior.
Overall, institutionalism’s expectations are fairly correct. The judicialization of states’
dispute settlement behavior largely reflects the level of judicialization of the relevant
dispute settlement procedures.
Liberalism
While liberalism fares somewhat better than realism in explaining states’ dispute
settlement behavior, it clearly does not reach the explanatory power of institutionalism.
According to liberalism, the judicialization of states’ dispute settlement behavior
mainly depends on the share of democracies in the respective international organiza-
tion. We define the democratic share to be high when more than two-thirds of the
members of an international institution are rated as ‘completely institutionalized
democracies’, and speak of a low ratio when less than half of the member states of an
institution are ‘completely institutionalized democracies’. When more than half, but
less than two-thirds, are rated as completely institutionalized democracies, the ratio
of democracies is regarded as medium.30
With regard to the UNSC, liberalist expectations are only partially confirmed. As
expected, the low level of judicialization of states’ dispute settlement behavior in the UN
context in both the 1970s/80s and 1990s/2000s coincides with low democratic member-
ship shares. Yet, given the fact that the democratic share in the UN grew from approxi-
mately 25 percent in the mid-1970s to almost 50 percent in the mid-1990s, it remains a
liberal puzzle why the judicialization of states’ dispute settlement behavior in the UN
further decreased in the 1990s/2000s from the already low level of the 1970s/80s.
Also, dispute settlement with regard to the GATT/WTO regime confirms liberal
expectations only partially. Admittedly, the democratic membership share is consider-
ably higher in the GATT and WTO than in the UN, which might explain the higher
degree of judicialization. In addition, the trend toward judicialization, which can be
observed comparing dispute settlement in the 1970s/80s with the 1990s/2000s, may also
be explained given the increase of the democratic share from below 50 percent in the
1970s/80s to around 60 percent since the mid-1990s. Yet, this moderate increase cannot
explain the fundamental change in dispute settlement behavior under the WTO. In par-
ticular, from a liberal point of view, it does not appear plausible that the very high level
of judicialization under the WTO can be achieved with a 60 percent democratic ratio.
The WTO appears to indicate that — contrary to liberalist expectations — a judicialized
form of dispute settlement is also possible among a mixed membership of democratic
and non-democratic states.
Zangl et al. 389
Table 5. Liberalist expectations and actual levels of judicialization
Democratic ratio Expected level of Observed level of

1970s/80s à 1990s/2000s judicialization judicialization
UNSC Low à low Low à low Low à low

WTO Low à medium Low à medium Low à high
EHR High à high High à high High à high
CITES Low à medium Low à medium Low à low
However, dispute settlement under the EHR regime corroborates liberalist expecta-
tions. In the European Council, the share of fully institutionalized democracies amounted
to around 90 percent in both the 1970s/80s and 1990s/2000s. This high share of demo-
cratic states corresponds to the exceptionally high degree of judicialization of states’
dispute settlement behavior in both periods.
By contrast, under the CITES regime, liberalist expectations are not met. While the
democratic membership share increased from well under 50 percent in the 1970s/80s to
almost 60 percent in the 1990s/2000s, a corresponding judicialization of state dispute
settlement behavior did not take place. This can be held against liberalism also because
both the CITES and the WTO, despite having roughly the same democratic shares, reach
remarkably different levels of judicialization.
The liberalist expectation that the respective share of democratic states in an interna-
tional institution translates into a corresponding level of judicialization in state dispute
behavior has not been met. No simple correlation can be identified between the ratio of
democratic states and the judicialization of state dispute behavior. In particular, contrary
to the liberal conjecture, a high ratio of democratic states is not a necessary condition
for high levels of judicialization. Yet, it might be worth mentioning that wherever in our
four regimes there was a high ratio of democratic states it went along with high levels
of judicialization.
Conclusion
The overall evidence of our research on dispute settlement in four international regimes
suggests that the level of judicialization of OECD states’ dispute settlement behavior can
be explained by institutionalism more convincingly than by either liberalism or realism.
Institutionalism yields correct predictions in three of the four cases (see Table 4), while
liberalism yields correct predictions in two out of four (see Table 5), and realism in only
one of the four cases (see Table 2). This does not rule out the possibility that the distribu-
tion of power and/or the democratic share in international regimes point to additional
conditions for the successful functioning of IDSPs. Yet, the evidence of our research sug-
gests that the judicialization of states’ dispute settlement behavior is particularly closely
connected to the judicialization of the relevant dispute settlement procedure.
Thus, judicialized IDSPs do have the empirical effects institutionalism supposes them
to have, a finding which — from an institutionalist point of view — also sheds light on
their creation. Institutionalism argues that IDSPs are the result of rational choices about
institutional design (Abbott and Snidal, 2000; Koremenos et al., 2001; Simmons, 1999).
In this view, states create judicialized IDSPs because they believe that this can make their
commitment to cooperation more credible. It is, therefore, expected that states create
international regimes with judicialized IDSPs if they have to deal with particularly dif-
ficult collective action problems. Indeed, there is evidence that judicialized IDSPs are
created only in situations with difficult cooperation problems (Koremenos, 2007). Our
research now adds evidence that judicialized IDSPs are able to render legal commit-
ments more credible so that states’ choices for judicialized IDSPs to overcome difficult
collective action problems appear in fact to be rational.
This effect-based rational explanation for the establishment of judicialized IDSPs
immediately provokes the question of why states in some cases are able to create IDSPs
that allow them to overcome collective action problems while failing to do so in others.
Why, for instance, did the GATT regime stick to diplomatic procedures until the late 1980s
while it became possible to institutionalize judicial procedures with the creation of the
WTO in the mid-1990s? Is this really only reflecting the underlying collective action
problems, that is, interest constellations? The answer to this question is beyond the reach
of this article. Nevertheless, it might be noteworthy that realism and liberalism could
claim that the creation of judicialized IDSPs mainly depends on the distribution of power
and the democratic share in the respective regimes. In fact, according to the evidence of
our research it might well be that the judicialization of IDSPs depends to some extent on
the distribution of power and/or on the democratic share of the respective regime’s
membership. The two regimes with highly judicialized IDSPs — the WTO and EHR
regimes — have a balanced distribution of power among their main members and a
rather democratic membership.31 We cannot really say whether the judicialization of
IDSPs is the root cause of states’ judicialized dispute settlement behavior. It might merely
intervene in the relationship between these supposed root causes of the judicialization of
dispute settlement procedures on the one hand, and the actual judicialization of states’
dispute settlement behavior on the other. However, the evidence of our research clearly
suggests that the supposed root causes do not directly translate into states’ judicialized
dispute settlement behavior, but — if at all — only indirectly after having given rise to
the judicialization of IDSPs. Otherwise one would have expected states’ dispute settle-
ment behavior to be more judicialized in both the CITES and GATT regimes. The judi-
cialization of IDSPs obviously has some independent effect on states’ dispute settlement
behavior. This is why even in regimes with many democratic members and/or a balanced
distribution of power, states’ dispute settlement behavior largely depends on the judicial-
ization of IDSPs. The comparison of the WTO regime on the one hand, and the CITES
and GATT regimes on the other, further underlines this finding.
We thus conclude that ceteris paribus the judicialization of IDSPs is able to tame
international politics in favor of an international rule of law. This is certainly good news
for institutionalists whose theoretical expectations are confirmed by empirical evidence.
But this is also good news for political actors that are calling for more respect for the
international rule of law. Their intuition that an international rule of law can be furthered
by creating a legal infrastructure that includes judicialized IDSPs is supported. They
may thus call more forcefully for the judicialization of IDSPs in order to promote the
international rule of law.
Zangl et al. 391
Appendix: List of disputes investigated

GATT/WTO: OECD countries’ dispute settlement behavior, 1980–5
Complaint Behavior of
Issue By Against Complainant Defendant
Wine EC Japan following following

Alcoholic beverages EC Canada following following
Beef EC Canada avoiding avoiding
Wine industry EC USA following disregarding
Pasta EC USA disregarding disregarding
Sugar Nicaragua USA – disregarding
Citrus fruits USA EC disregarding disregarding
Hormone meat I USA EC disregarding disregarding
Agricultural products USA Japan following, then avoiding following, then avoiding
Rice USA Japan avoiding avoiding
Citrus fruits, beef USA Japan avoiding avoiding
GATT/WTO: OECD countries’ dispute settlement behavior, 1995–2000
Peanuts Argentina USA – following,

then avoiding
Beef Australia Canada avoiding avoiding
Poultry toll Brasilia EC – following
Citrus products Brasilia USA – following,
(Florida) then avoiding
Instant coffee Brasilia EC – following,
then avoiding
Taxation of alcoholic EC Chile following –
beverages
Swordfish EC Chile following, –
then avoiding
Pork EC Japan following, following,
then avoiding then avoiding
Milk EC South Korea following following
Mineral water EC Thailand avoiding –
Poultry (VEA) EC USA following, following,
Agricultural products EC et al. India following, –
then avoiding
Alcohol tax EC, USA South Korea following following
Brandy EC India following, –
then avoiding
Walnuts India EC – avoiding
Salmon Canada Australia following, disregarding
then avoiding
Durum wheat Canada EC avoiding avoiding
(Continued)
(Continued)
Cereal Canada, USA EC following, following,

Tomatoes Mexico USA following, following,
Apples New Zealand Australia avoiding disregarding
Butter New Zealand EC following, following,
Lamb New Zealand, USA following following
Australia
Mussels Peru, Chile, EC following, following,
Canada then avoiding then avoiding
Diverse kinds of fruit Philippines Australia – avoiding
Shrimp/Turtle Thailand et al. USA – following
Grain gluten USA EC following following
Bananas USA EC disregarding disregarding
Hormone meat II USA EC following disregarding
Inspection requirements USA Japan following following
(Apples, etc.)
Milk import quota USA Canada following following
Meat hygiene USA Mexico avoiding avoiding
Beef anti-dumping USA Mexico following following
Pork and poultry USA Philippines following, –
then avoiding
Reference price system USA Romania following, –
then avoiding
Quarantine procedures USA South Korea following, following,
Meat, shelf life USA South Korea following, following,
Rice USA, Japan avoiding avoiding
Australia, etc.
Alcoholic beverages II USA, EC Japan following following
Beef USA, Australia South Korea following following
UNSC: OECD countries’ dispute settlement behavior, 1974–83
Cod War Iceland UK following, then following, then avoiding

avoiding
Mayotte Uganda, the France – following, then avoiding
Comoros
Djibouti Somalia France – following, then avoiding
Hostage crisis USA Iran following, then –
avoiding
(Continued)
Zangl et al. 393
(Continued)

Sino-Viet Border War USA, et al. PR China following –
Afghanistan USA, et al. USSR following, then –
avoiding
USA–Libya I Libya USA – following, then avoiding
Contra-War Nicaragua USA – following, then avoiding
Status of Belize Guatemala UK, Belize – following, then avoiding
Iraqi reactor Spain, et al. Israel following –
Falkland Islands UK, EC Argentina disregarding –
North Korea I North Korea USA – avoiding
Grenada Nicaragua USA – following, then avoiding
USA in Lebanon Syria USA – avoiding
UNSC: OECD countries’ dispute settlement behavior, 1990–9
US intervention in Nicaragua USA – following, then

Panama avoiding
Inspection vessel Cuba USA – following, then
avoiding
Kuwait USA Iraq following –
USA–Libya II Libya USA – avoiding
USA–Libya III Libya USA, UK – avoiding
Civilian population USA et al. Iraq disregarding –
Iraq
Croatia EC, Canada, (Remaining) following –
Hungary Yugoslavia
Bosnia USA, UK, (Remaining) disregarding –
Germany, France Yugoslavia
North Korea II North Korea USA – following, then
avoiding
Rwanda (genocide) France Rwanda (civil following –
war parties)
Aegean dispute Greece Turkey following, then –
avoiding
Bombing of Sudan USA – avoiding
chemical plant
Nuclear weapon France, GB, India, Pakistan following –
tests South Asia Japan, Portugal,
Sweden, USA
NK missile test Japan North Korea following, then –
avoiding
Kosovo Balkan Contact (Remaining) disregarding –
Group Yugoslavia
CITES: OECD countries’ dispute settlement behavior, 1978–87
defendant
Issue Against
Wildcat Coats (UK) UK following

Wildcat Coats (Germany) Germany following
Hamburg Freeport Germany disregarding
Ivory import USA avoiding
French Guyana France disregarding
Deficient import control (Austria) Austria disregarding
Deficient import control (USA) USA avoiding
Basic implementation deficits Japan disregarding
(Japan)
EC: Internal Market EC disregarding
Deficient import control (France) France disregarding
CITES: OECD countries’ dispute settlement behavior, 1988–97
defendant
Issue Against
Basic implementation deficits (Greece) Greece disregarding

Deficient import control (Spain) Spain disregarding
Ivory (Japan) Japan following
Deficient regulation (New Zealand) New Zealand avoiding
Export and Import Permits Act (Canada) Canada disregarding
Basic implementation deficits (Italy) Italy disregarding
Turtle imports (Japan) Japan avoiding
ECHR: OECD countries’ dispute settlement behavior, 1981–92
defendant
Issue Against
X vs UK UK following
Van Droogenbroeck vs Belgium Belgium disregarding
B vs UK UK following
De Jong et al. vs Netherlands Netherlands following
Luberti vs Italy Italy following
Zamir vs UK UK following
C/Medway/Ball vs UK UK following
Gordon vs UK UK following
Sanchez-Reisse vs Switzerland Switzerland following
Weeks vs UK UK following
Bouamar vs Belgium Belgium disregarding
Moudefo vs France France following, then avoiding
Lamy vs Belgium Belgium following
Bezicheri vs Italy Italy following
(Continued)
Zangl et al. 395
(Continued)
defendant
Issue Against
Koendjbiharie vs Netherlands Netherlands following
Thynne et al. vs UK UK following
Van der Leer vs Netherlands Netherlands following
E vs Norway Norway following
D vs Belgium Belgium following
Toth vs. Austria Austria following
Herczegfalvy vs Austria Austria following
Megyeri vs Germany Germany following
ECHR: OECD countries’ dispute settlement behavior, 2002–04
Complaint Behavior of defendant
Issue Against
Z.R. vs Poland Poland following, then avoiding

Lanz vs Austria Austria following
Conka vs Belgium Belgium following
Pereira vs Portugal Portugal following
Delbec vs France France disregarding
Samy vs Netherlands Netherlands following, then avoiding
Migon vs Poland Poland following
L.R. vs France France disregarding
D.M. vs France France disregarding
Laidin vs France France following
Waite vs UK UK following
Salapa vs Poland Poland following
Hutchison Reid vs UK UK following
Herz vs Germany Germany following
König vs Slovakia Slovakia following
M.B. vs Poland Poland following
Pavletic vs Slovakia Slovakia following
Tam vs Slovakia Slovakia following
Kotsaridis vs Greece Greece following
Acknowledgements
This paper presents results from a research project on the Judicialization of International Dispute
Settlement which is part of the Collaborative Research Center “Transformations of the State” at the
University of Bremen. We are grateful to the German Research Foundation (DFG) for their finan-
cial support. We would also like to thank Phillip Genschel, Volker Rittberger, Susanne Schmidt,
Alexander Spencer and Monika Heupel for their helpful comments at different stages of this article.
Thanks go also to Vicki May, Jan Tiedemann and Christian Kreuder-Sonnen for their support.
Notes
1 Constructivists agree that international (legal) norms matter. Yet, as opposed to rational
institutionalists, they underline that they have an impact not only on states’ behavior, but on
their interests and identities too (Koh, 1997; Reus-Smit, 2004; Wendt, 1992).
2 Generally, institutionalists assume that the effects of international institutions depend on their
design. See, for instance, Haas et al. (1993) and Koremenos et al. (2001).
3 The decisions of authorized dispute settlement bodies may also help state leaders to overcome
domestic resistance against the settlement of disputes (Allee and Huth, 2006; Simmons,
1999, 2002).
4 See, among others, Alter (2001, 2006), Keohane et al. (2000), McCall Smith (2000), Stone
Sweet (2000), Zangl (2001, 2008), and Zürn and Joerges (2005).
5 Constructivists would generally agree, yet they point to the procedural fairness of judicialized
proceedings as the reason for their effectiveness (see Reus-Smit, 2004; Zangl, 2008).
6 We focus here on so-called republican liberalism which is particularly relevant in the debate
on international law, while ignoring other variants of liberalism such as ideational and
commercial liberalism (for an overview see Moravcsik, 1997).
7 For liberals it is particularly significant that the respective IDSPs give standing not only to
states, but also to individuals that are affected by breaches of international law (Alter, 1998,
2001; Simmons, 2009).
8 Yet, the analysis of the EHR regime was exempted from this rule. After pre-tests had indicated
that complaints which reached the competent European institutions gained hardly any public
attention, we decided to draw our sample on the basis of complaints that were actually filed.
Moreover, since we were especially interested in establishing whether states act in compliance
with the Court’s judgments we only selected disputes in which the Court (and the Committee
of Ministers, respectively) decided that there had been a violation of the Convention as well
as those disputes ending with a friendly settlement.
9 The coding of each and every dispute in our sample was done in a two-step process. In a first
step one of the coders (i.e. one of the authors) provided on the basis of the relevant literature,
official documents, and newspaper reports a short account of the dispute in two to four pages.
Based on the coding rules as described below s/he proposed how to code it. In a second step
meant to ensure inter-coder reliability, the proposed coding was discussed in the group of all
six coders (i.e. all the authors) until an agreement could be reached. In only a few exceptional
cases was a majority vote necessary to come to agreement between all coders (i.e. authors).
For an overview of all the cases in our sample and an overview of how we coded each case,
see appendix. We can also provide upon request the short accounts (in German) which we
produced during the coding process for each dispute in our samples.
10 We also take into account changes in the relative frequency of the following, then avoiding
and the avoiding patterns.
11 For a judicial system to be regarded as effective it seems crucial that it is able to tame the
dispute settlement behavior of both defendant and complainant. If the level of effective
judicialization is high for defendants but low for complainants, we thus code the overall level
of judicialization as merely low.
12 GATT and WTO documents are cited by their official reference numbers and can be accessed
via the WTO website at: http//www.wto.org/
13 However, the escalation was only temporary until the disputing parties agreed on a mutually
acceptable solution in 1986, cf. Financial Times (20 May 1985), Washington Post (21 June
1985), Zangl (2006).
14 WT/DS27/RW/EEC, WT/DS27/ARB, Journal of Commerce (29 January 1999), and
Washington Post (4 March 1999).
Zangl et al. 397
15 WT/DS72/R, Reuters News (9 June 1999), and National Business Review (5 November 1999).
16 To the extent to which the hybrid role of the UNSC grants the Council authority to recommend
terms of dispute settlement, the body enjoys some quasi-judicial powers, see Cronin-Furman
(2006: 438–440).
17 UNSC documents are cited by their official reference numbers and can be accessed via the
United Nations Bibliographic Information System at: http://unbisnet.un.org/
18 S/22435, S/22442, S/22701, S/243946, S/24394, and S/24395.
19 In order to limit the number of relevant cases we only considered alleged violations of Article
5 of the Convention, which stipulates that ‘everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the lawfulness of his detention shall
be decided speedily by a court and his release ordered if the detention is not lawful’.
20 Available at: http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+
database/
21 ECHR documents are cited by their official reference numbers (application numbers) and can
be accessed via the Court’s online database HUDOC (see note 20).
22 Documents of the Committee of Ministers, which is also responsible for the supervision of
the Court’s judgments, are cited by their official reference numbers and can be accessed via
the Committee’s website at: http://www.coe.int/t/cm/home_en.asp
23 CITES documents are cited by their official reference numbers and can be accessed via the
CITES website at: http//www.cites.org/
24 For a thorough discussion of how to measure the balance of power between states, see Moul
(1989: 115) who also mentions factor 1.5 as a potential threshold between a balanced and an
unbalanced distribution of power.
25 Data for the respective countries’ GDPs were taken from the United Nations’ Key Global
Indicators Database (also known as the UN Common Database). See http://data.un.org/ Data.
aspx?d=CDB&f=srID%3a29918
26 As opposed to other issue-areas, many realists claim with regard to the issue-area of human
rights that a hegemonic distribution of power (rather than a balanced distribution of power)
is conducive to compliance (see Krasner, 1993). However, in this view, the high level of
judicialization in the European human rights regime remains a puzzle (Moravcsik, 1995).
27 For a detailed description of this judicialization scale see Helmedach et al. (2009). For similar
scales see also Helfer and Slaughter (1997), Keohane et al. (2000), McCall Smith (2000),
Yarbrough and Yarbrough (1997), and Zangl (2008).
28 On the procedure before the ECHR see, for example, Greer (2006), Liddell (2002), and Villiger
(2007).
29 On the CITES non-compliance procedure see Reeve (2002: 91–133) and Wijnstekers (2003:
177–197).
30 To calculate the ratio in a given institution we use the ‘Polity IV Index’ provided by the Polity
IV Project (see http://www.systemicpeace.org/polity/polity4.htm). We have divided the number
of democracies by the number of signatories to the treaty. For instances of missing data (e.g.
micro-states) we have subtracted the number of missing states from the number of members.
31 One liberal argument is that democracies allow for a greater impact of domestic actors on their
policies. If democracies agree on judicialized IDSPs it can thus be expected that the domestic
actors that pushed for their creation may also push for compliance with the respective IDSPs
(Raustiala, 2005: 608–609).
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Biographical notes
Bernhard Zangl is a Professor of Global Governance and Public Policy at Ludwig-
Maximilians-University Munich (LMU) where he also heads the Munich Center on
Governance Research (MCG). He is especially interested in the changing role of inter-
national institutions and its effects on both the international system in general and its most
fundamental entity, the modern state, more specifically. His research has been published
in International Studies Quarterly (ISQ), European Journal of International Relations
(EJIR), Journal of International Relations and Development (JIRD), Zeitschrift für
Internationale Beziehungen (ZIB), Politische Vierteljahresschrift (PVS), among others.
Achim Helmedach is a research fellow and PhD candidate at the Collaborative Research
Centre 597 ‘Transformations of the State’ at the University of Bremen. He investigates
international legalization processes in the economic sector. His dissertation focuses on
states’ dispute settlement behavior in the international trade regime (GATT/WTO).
Aletta Mondré is a research fellow and PhD candidate at the Collaborative Research
Centre 597 ‘Transformations of the State’ at the University of Bremen. She currently
investigates the influences on states’ choice of forum to settle maritime disputes
peacefully.
Alexander Kocks is a teaching fellow and PhD candidate at the Ludwig-Maximilians-

University Munich, completing his dissertation on the political economy of peacekeep-
ing. His research applies global public good theory to various international relations
issues including military interventions, human rights, and international law. His most
recent publication on this subject has appeared in the Zeitschrift für Internationale
Beziehungen (ZIB, German Journal for International Relations).
Gerald Neubauer is a research fellow and PhD candidate at the Collaborative Research
Centre 597 ‘Transformations of the State’ at the University of Bremen. His research
concerns the interplay of international law and global justice with a dissertation on state
civil disobedience. His most recent publication on this subject has appeared in the
TranState Working Paper Series.
Kerstin Blome is a research fellow at the Collaborative Research Center 597

‘Transformations of the State’ at the University of Bremen. Her dissertation focuses on
legal protection granted by international judicial bodies to non-state actors. She has
special research interests in international legalization processes, the proliferation of
international courts and tribunals, and regional human rights regimes.

Between Law and Politics: Explaining International Dispute Settlement Behavior

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Between law and politics: International Relations

1970s/80s and 1990s/2000s, respectively. First, we reconstruct the main expectations of

Three perspectives on international law

their non-democratic counterparts, which is also considered as supporting their propen-

States’ dispute settlement behavior

1. Following behavior: The behavior of state parties to a dispute was coded as

an authority to control trade in endangered species. Greece, however, tried to

Dispute settlement under GATT/WTO

OECD countries as complainants. The comparison of international trade disputes in the

Figure 1. States’ dispute settlement behavior as complainants in GATT/WTO

Figure 2. States’ dispute settlement behavior as defendants in GATT/WTO

Dispute settlement under the UNSC regime

Figure 3. States’ dispute settlement behavior as complainants in the UNSC

judicialization of dispute settlement behavior remains constant on a medium level. While

OECD countries as defendants. If we look at disputes with OECD states as defendants

Figure 4. States’ dispute settlement behavior as defendants in the UNSC

Dispute settlement under the EHR regime

Dispute settlement under CITES

Figure 6. States’ dispute settlement behavior as defendants in CITES

Table 1. Levels of judicialization in four issue-areas of international relations

1970s/80s 1990s/2000s Trend

GATT/WTO Low High Strong increase

Explaining uneven judicialization

Table 2. Realist expectations and actual levels of judicialization

Issue-area Power distribution Expected trend of Observed level of

UNSC High politics Balanced à unbalanced Low à low Low à low

Table 3. The judicialization of international dispute settlement procedures

Access Diplomatic procedure: restricted right of complaint

independence of the dispute settlement procedures has been considerably strengthened

Table 4. Institutionalist expectations and actual levels of judicialization

Judicialization of procedures Expected level of Observed level of

UNSC Low à low Low à low Low à low

Table 5. Liberalist expectations and actual levels of judicialization

Democratic ratio Expected level of Observed level of

UNSC Low à low Low à low Low à low

Appendix: List of disputes investigated

Issue By Against Complainant Defendant

Wine EC Japan following following

GATT/WTO: OECD countries’ dispute settlement behavior, 1995–2000

Issue By Against Complainant Defendant

Peanuts Argentina USA – following,

Issue By Against Complainant Defendant

Cereal Canada, USA EC following, following,

UNSC: OECD countries’ dispute settlement behavior, 1974–83

Issue By Against Complainant Defendant

Cod War Iceland UK following, then following, then avoiding

Issue By Against Complainant Defendant

UNSC: OECD countries’ dispute settlement behavior, 1990–9

Issue By Against Complainant Defendant

US intervention in Nicaragua USA – following, then

CITES: OECD countries’ dispute settlement behavior, 1978–87

Wildcat Coats (UK) UK following

CITES: OECD countries’ dispute settlement behavior, 1988–97

Basic implementation deficits (Greece) Greece disregarding

ECHR: OECD countries’ dispute settlement behavior, 1981–92

ECHR: OECD countries’ dispute settlement behavior, 2002–04

Complaint Behavior of defendant

Z.R. vs Poland Poland following, then avoiding

Alexander Kocks is a teaching fellow and PhD candidate at the Ludwig-Maximilians-

Kerstin Blome is a research fellow at the Collaborative Research Center 597

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