Tipping the Balance: International Courts and the Construction of International and Domestic Politics

Abstract:     
Most international relations approaches expect that states have unique preferences that international courts (ICs) must satisfying in order to be effective. Starting from the premise that states have within numerous conflicting preferences, I argue that ICs can act as tipping point actors, building and giving resources to compliance constituencies - coalitions of actors within and outside of states - that favor policies that happen to also be congruent with international law. Through alliances with domestic interlocutors, ICs help reconstitute law, politics and national interests. The tipping point argument suggests that ICs are not dependent on governments, on government-defined interpretation of international rules, or on accepting as given a government’s claim about the national interest. International courts are independent actors, but the preferences of compliance partners matters more than the preferences of the litigant, the defendant state and perhaps even the IC judges in determining where law and politics are reconstituted. A comparison of the European Court of Justice to the Andean Tribunal of Justice, two institutionally similar and very active international courts that have behaved very differently, illustrates how domestic compliance partners shape international judicial behavior.

Keywords: International Courts, International Law, Judicial Behavior, European Union, Andean Integration, Latin American Integration

JEL Classification: K33

working papers series