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

Cambridge Yearbook of International Studies, Forthcoming

Constructed Interests: The Process of Political Representation in the Global Age, Forthcoming

Northwestern University Buffett Center for International and Comparative Studies Working Paper No. 10-003

Northwestern Public Law Research Paper No. 11-40

23 Pages Posted: 30 Oct 2010 Last revised: 1 Sep 2015

Karen J. Alter

Northwestern University - Department of Political Science; University of Copenhagen, Faculty of Law - iCourts Center of Excellence

Date Written: October 29, 2010

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

Suggested Citation

Alter, Karen J., Tipping the Balance: International Courts and the Construction of International and Domestic Politics (October 29, 2010). Cambridge Yearbook of International Studies, Forthcoming; Northwestern University Buffett Center for International and Comparative Studies Working Paper No. 10-003; Northwestern Public Law Research Paper No. 11-40. Available at SSRN: https://ssrn.com/abstract=1699758 or http://dx.doi.org/10.2139/ssrn.1699758

Karen J. Alter (Contact Author)

Northwestern University - Department of Political Science ( email )

601 University Place
Evanston, IL 60208
United States

University of Copenhagen, Faculty of Law - iCourts Center of Excellence ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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