INTERNATIONAL COURTS AND THE PERFORMANCE OF INTERNATIONAL AGREEMENTS: A GENERAL THEORY WITH EVIDENCE FROM THE EUROPEAN UNION, by Clifford J. Carrubba and Matthew J. Gabel. New York: Cambridge University Press, 2015. 243pp. Hardcover $102.00. ISBN: 9781107065727. Paperback $34.99. ISBN: 978-1107677265.
Reviewed by Brad Epperly, Department of Political Science, University of South Carolina. Email: epperlyb@mailbox.sc.edu.
In INTERNATIONAL COURTS AND THE PERFORMANCE OF INTERNATIONAL AGREEMENTS, Carrubba and Gabel offer an important contribution to the study of the European Court of Justice and international courts more broadly. After first developing a formal model to predict the conditions under which states should comply with international court rulings as well as when rulings should have impact, the authors trace out not only its empirical implications but also the degree to which the data comport with alternative explanations of state compliance with international courts. The clarity with which Carrubba and Gabel lay out their model and empirical evidence is particularly commendable; this, combined with their brief descriptive account of the workings of the court should make the volume appropriate for use in advanced undergraduate courses on comparative courts and generally accessible to those only passingly familiar with game theoretic and statistical accounts.
The authors begin by offering a brief sketch of debates on if and how international institutions matter, arguing that a satisfactory theory of international courts should provide reasons for why states (1) create an international regime and (2) include a court as part of the regime, as well as account for the (3) activation of the legal system and, most critically, why (4) states comply when a court rules against them.
Building off the rational design approach in the international organizations literature generally and Carrubba’s earlier (2005) work specifically, the authors address the first two points above with reference to the contention that common regulatory regimes can solve collective action problems across a given (set of) policy space(s), and that courts can aid in monitoring and sanctioning of state defection from the dictates of these regimes. The legal system is activated in typical fire alarm fashion when litigants—any actor with standing—use the court. Critical for Carrubba and Gabel is Koremenos, Lipson, and Snidal’s (2001) insight that the costs of complying with a common regulatory regime vary across states and within states over time: other states prefer to punish a given state’s defection when net (for all parties) benefits outweigh net costs, but not otherwise. The latter can arise either when many pay costs or when the costs of compliance for a given state are so high that they outweigh the benefits other states receive from compliance with the regime.
Courts come into the story here because they help solve the information problem of whether non-compliance is justified (i.e. net costly), and allow states to pursue a punishment strategy that sanctions defection from the common regulatory regime only when compliance is net beneficial. Courts do so not by having the ability to credibly punish defectors themselves—think Federalist 78—but rather by serving as an information clearinghouse that allows the preferences of other state actors to be known (here by way of the filing of amicus briefs when a state defects and is litigated against). This information signals whether compliance is net beneficial and whether other states will punish defection, and as a result informs both the likelihood of a court ruling against a state (as ruling against states who fail to comply and remain unpunished is costly) as well as whether a state’s behavior should change given it is ruled against. In other words, courts serve to reveal the preferences of actors in the system and sustain levels of compliance that are mutually beneficial in the long run. The two implications of the theory forwarded by the authors is that more third party support against a given state’s [*66] defection should increase the probability of that state losing in court, and further that the ruling has impact on behavior.
The bulk of the monograph is laying out their case with evidence supporting these two empirical implications of their model. Carrubba and Gabel do so with an original database (publicly available on Carrubba’s website) of European Court of Justice rulings from 1960 to 1999, including numerous factors not coded by previous scholars. The thoroughness with which they tackle the empirical estimation is laudable. For example, to accurately test the first implication one must know whether third party involvement in the case is a signal of preferences (and intention to punish) or the legal merits of a case. If the latter, the cause for any relationship between third party briefs and case outcomes is suspect. To assess this, the authors leverage the role of the Advocate General (AG) in the ECJ decision-making process by using the AG’s opinions on each issue in the case, which are authored after states file briefs but before judges rule on each legal issue; in doing so they first account for potential state influence on AG opinions (mandating data on AGs and the political environments of member states), in its own right a significant contribution to our understanding of the ECJ.
Carrubba and Gabel demonstrate that greater third party support for the plaintiff (as on occasion a state is the plaintiff) in a case is strongly associated with plaintiff success, and show that the effect is substantively as well as statistically significant. To assess their second empirical implication—that third party support is likely to increase the impact judicial decisions have on state behavior—they restrict their analyses to cases involving the regulation of trade. The results here suggest that previous indeterminate findings on the impact of judicial rulings can be explained by a lack of attention to the conditions that surround the ruling: when there is clear third party support for a plaintiff rulings are likely to affect actual trade outcomes, but when third party support is lacking so too is the impact of judicial decisions on behavior.
The refinement of theory Carrubba and Gabel forward in INTERNATIONAL COURTS AND THE PERFORMANCE OF INTERNATIONAL AGREEMENTS is important, but far more important in my opinion is the authors’ meticulous handling of its empirical implications and attention to potential alternative explanations. To test the model’s implications, they assembled a comprehensive data resource, itself a contribution, and addressed head-on the many potential confounding factors. The result of the careful work is a persuasive account of the conditions under which we should expect state compliance with international courts, and further expect international courts to affect state behavior. It bears repeating that the clarity of presentation is superb, making the book all the more persuasive.
In the conclusion the authors discuss the potential for their framework to travel, and it is only on the very last pages that I find myself unconvinced. First, Carrubba and Gabel end by suggesting, in line with Carrubba (2009) that the framework offered might also apply to the development of domestic courts facing similar collective action and compliance problems. The reference point here is federal systems, specifically the story of the development of the American federal judiciary; therein lies the limitations of extending this framework to the domestic level. Put simply, there just aren’t that many federal systems: a quarter of OECD countries and an even lower rate globally, with one of every four federal systems an autocracy where judicial influence is an open question. Furthermore, where federal systems are adopted by comparably strong rather than weak states (Ziblatt 2008), the degree to which federal governments lack the ability to strong-arm sub-national governments and achieve compliance without courts is questionable. As a result, I remain puzzled by the generality of a theory of judicial influence predicated on atypical conditions.
Second, Carrubba and Gabel’s framework has implications for a typology of international courts, and though references are made toward these implications in the beginning of the book, such references disappear by the end. Recall: [*67] third party support is a key determinant of compliance with dispute resolution mechanisms like courts, and this support comes because other states have incentives to punish defection from the common regulatory regime from which they derive benefits (also the reason for the dispute resolution mechanisms in the first place). This rational design account thus suggests we likely require alternative explanations for international courts that do not obviously aid in maintaining common regulatory regimes that provide benefits to all members over the long run, as well as for state compliance with these courts. One thinks first of human rights courts. Of course, to fault the authors for this sin of omission is simply to say that one would appreciate hearing their extended thoughts on the matter, which is testament to the quality of their book.
REFERENCES
Carrubba, Clifford J. 2005. “Courts and Compliance in International Regulatory Regimes.” JOURNAL OF POLITICS 67 (August): 669-89.
Carrubba, Clifford J. 2009. “A Model of the Endogenous Development of Judicial Institutions in Federal and International Systems.” JOURNAL OF POLITICS 71(1): 55-69.
Koremenos, Barbara, Charles Lipson, and Duncan Snidal. 2001. “The Rational Design of International Institutions.” INTERNATIONAL ORGANIZATION 55: 761-99.
Ziblatt, Daniel. 2008. STRUCTURING THE STATE: THE FORMATION OF ITALY AND GERMANY AND THE PUZZLE OF FEDERALISM. Princeton, NJ: Princeton University Press.
© Copyright 2017 by author, Brad Epperly.
