Between law and politics: Explaining international dispute settlement behavior
| Author | Kerstin Blome,Achim Helmedach,Aletta Mondré,Gerald Neubauer,Bernhard Zangl,Alexander Kocks |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| DOI | http://doi.org/10.1177/1354066110389832 |
Article
European Journal of
International Relations
18(2) 369–401
© The Author(s) 2011
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DOI: 10.1177/1354066110389832
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Corresponding author:
Bernhard Zangl, Ludwig-Maximilians-Universität – Geschwister-Scholl-Institut, Oettingenstraße
67 München 80538, Germany.
Email: Bernhard.Zangl@gsi.uni-muenchen.de
Between law and politics:
Explaining international
dispute settlement behavior
Bernhard Zangl
Ludwig-Maximilians-University, Germany
Achim Helmedach
University of Bremen, Germany
Aletta Mondré
University of Bremen, Germany
Alexander Kocks
Ludwig-Maximilians-University, Germany
Gerald Neubauer
University of Bremen, Germany
Kerstin Blome
University of Bremen, Germany
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.
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
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