International Courts: A Theoretical Assessment

Abstract

Scholars have long been fascinated by the role of international courts in the enforcement of international rule of law. They start with a foundational question: Can international courts affect how international law is implemented? In this review, we lay out four of the most common theoretical arguments for why international courts matter. We then interrogate these accounts. In particular, we examine their views on how much influence courts have and what the likely welfare consequences are for the signatories of an agreement. In so doing, we identify critical conditions that must obtain for court influence under each of the arguments. We then bring more recent scholarship to bear on the plausibility of these conditions. In particular, we examine what research on the structure of law, the preferences of judges, and institutional design implies about the efficacy of international courts based on the four foundational arguments. We conclude with suggestions for future research.

The political economy of noncompliance in customs unions

“…The customs union has a court that adjudicates disputes over noncompliance. Recent studies view courts as strategic actors (Vanberg, 2015; Carrubba, 2005; Carrubba and Gabel, 2015, 2017). Courts care about the degree to which member states comply with their treaty obligations ( ex ante compliance), but they also care about compliance with their rulings ( ex post compliance).…”

Improving the efficiency of pretrial bargaining in disputes over noncompliance with international law: encouraging evidence from the European Union

“…Constructivists, meanwhile, argue that noncompliance is a function of normative beliefs over rule obedience (e.g., Checkel, 2001;Finnemore & Sikkink, 1998;Hurd, 1999). While these schools are not mutually exclusive (e.g., Börzel et al, 2010;Carrubba & Gabel, 2017;Tallberg, 2002), we evaluate a management school solution.…”

The evolution of European Union law: A new data set on the Acquis Communautaire

“…Secondary laws are incomplete contracts; they cannot fully specify the legal obligations of member states under every possible set of circumstances. When there are disputes about the obligations of member states under secondary law, the Court can facilitate cooperation by completing the contract—by declaring what constitutes a violation and what does not (Carrubba and Gabel, 2017). When the contract is sufficiently incomplete, national courts can refer questions about how to interpret a secondary law to the Court (under Article 267 TFEU).…”