International courts (ICs) are expected to facilitate cooperation by enforcing states’ international commitments. ICs are tasked with identifying when states have violated their international obligations and ordering said states to reform their policies. State compliance with such international judicial orders is essential to restoring effective international cooperation, but compliance is not universal. Rather, state compliance is uneven.
Delivering on Promises: The Domestic Politics of Compliance in International Courts, by Lauren J. Peritz, explores state compliance with international court orders (sometimes called second-order compliance) and the impact of interventions by ICs on international cooperation. Peritz offers a novel explanation about how domestic politics have an impact on state compliance with judicial orders and the impact of such orders. Peritz is not the first to suggest that domestic politics affects state compliance with international legal obligations or the effectiveness of international cooperation. However, the author presents a new take on the role of domestic politics, arguing that compliance and the effects of adverse rulings on international cooperation are largely determined by domestic veto points, conceived as the scale of institutional checks and political divisions within states’ political systems. The book shows that when states have many internal political checks or entrenched political opposition, they are less likely to obey the rulings of international courts. While domestic political constraints improve the credibility of a state's international commitments and initial state compliance, these same constraints can lock in violations to international law and undercut international cooperation.
Chapter 2 of the book presents Peritz's theoretical argument relating to ICs, state compliance, and domestic veto points. The book develops this argument through empirical analyses of outcomes following rulings by the World Trade Organization's (WTO) Dispute Settlement Mechanism (DSM) and the European Court of Justice (ECJ) in trade disputes. Chapter 3 lays the foundations for the empirical analyses. This chapter explains the decision to focus on the WTO DSM and ECJ, while also describing how these two courts are designed and operate. Chapters 4 and 5 focus on examining compliance with the rulings of the WTO DSM and the conditional effects of adverse rulings on trade cooperation, respectively. Chapter 6 explores the interaction between adverse ruling by the ECJ and domestic veto points on trade cooperation within the EU. The concluding chapter considers the implications of the book's findings in light of the backlash against ICs and economic globalization.
Delivering on Promises is praiseworthy for several reasons. Foremost among these is its innovative and systematic analysis of compliance with the WTO DSM, which builds on original data of state compliance with WTO adverse rulings. This analysis is sophisticated, showing that compliance with judicial orders is less likely when domestic veto points are greater. The findings are largely consistent across different statistical models, which take various factors into consideration, including the timing of compliance (delayed or not), the degree of compliance (full, partial, or none), the role of democracy, federalism, the EU's unique veto points, and selection effects caused by states’ initial decisions to litigate. Peritz also examines how domestic constraints, specifically veto points, affect the restoration of trade in the wake of adverse rulings by the WTO DSM. This analysis is novel, utilizing a synthetic control method to estimate counterfactual trade flows (what trade flows would have been in the absence of a dispute) and compares the counterfactual to actual flows to assess the impact of adverse ruling on trade flows. The data and analysis on the WTO DSM rulings, compliance, and trade restoration are impressive and I applaud Peritz for a very compelling demonstration of the linkages between the scale of veto points and compliance with adverse rulings and the subsequent restoration of trade flows in the case of the WTO.
The effort taken to extend the analysis to the ECJ and test the generalizability of the argument is impressive. Namely, the book considers whether EU states that lose infringement lawsuits see subsequent increases in intra-EU trade imports, and the extent to which such an association is conditioned by the scale of domestic veto points. Peritz demonstrates that imports do increase following adverse rulings unless domestic veto points are high. Even though this analysis does not examine whether domestic veto points explain poor compliance with adverse rulings, it shows that institutional and partisan divisions in EU states hinder trade cooperation in the wake of adverse ruling by the ECJ.
The book has some shortcomings. First, the analysis of the WTO and the ECJ is truncated at 2012. In the case of the WTO, Peritz limits the analysis to cases initiated between 1995 and 2012 to allow for a minimum of five years before examining the outcome variables, and because producing the original compliance data was undoubtedly time intensive. This is understandable yet unfortunate because it leaves the immediate years leading to the WTO DSM's crisis outside the analysis. Also unfortunate, the analysis on the EU is limited to the EU-15, that is, it excludes any of the Central and Eastern European members that joined in 2004 or after. Yet, research on the EU has shown that many of these members have unique profiles when it comes to compliance. The book, nonetheless, provides an excellent blueprint for how one might extend this analysis to make up for these shortfalls.
Second, it is difficult to clearly situate Peritz's argument within the age-old debate between the managerial and the enforcement schools of compliance, where the former attributes noncompliance to state capacity limitations and the latter to a lack of incentives or willingness to comply. Peritz goes to extensive effort to argue that noncompliance is intentional and reflects opportunism, reflecting the enforcement perspective. However, a skeptical reading would find these efforts not entirely convincing. For instance, a state that makes use of the full range of legal options (or employing flexibility provisions that allow for the prolongation of a dispute) may reflect legal complexity, belief in the state's legal position (or wrongfulness of the court's ruling), legal capacity, or simply that veto points infuse compliance with managerial problems. It is not clear that seeing out the full legal process available, even with persistent noncompliance, reflect states’ efforts to reap the benefits of non-compliance for as long as possible rather than any of these other possibilities. Prolonged and persistent noncompliance comes at a cost to states and politicians alike, especially because retaliatory measures (WTO) and sanctions (ECJ) have economic impacts and can mobilize pro-compliance constituencies. Settling this issue is important for determining the extent to which domestic institutional and partisan divisions are an indication of managerial problems that generate noncompliance as opposed to stubborn and willful noncompliance. In the end, this reader is not entirely convinced that Peritz settles this issue.
Finally, the book claims to shed light on the performance and design of ICs. To the first, Peritz’ discussion misses important insights from previous research on IC performance that would help to interpret the book's significance for these debates. The book points to good news for IC performance: a judgment rendered by an IC has the potential to generate positive compliance and trade outcomes. The good news seems to stop there. Domestic politics determines whether the outcomes are positive, irrespective of the precise nature of an IC's performance and might suggest that painstaking efforts made by judges to get a decision right do not matter. To prevent such inferences, I caution readers to not overstate the book's implications about IC performance, as the book provides only limited discussion of how we should conceive of IC performance and does not control for alternative aspects of performance, such as the clarity of a judgment or whether there is a separate opinion attached to a ruling. Moreover, the book examines a limited set of ICs (the WTO DSM and ECJ) and only in the area of trade. Regarding design, Peritz confirms what others have shown: flexibility provisions spur noncompliance. As I see it, another question about institutional design arises from the case selection. Despite having very different institutional designs, the outcomes generated by the WTO DSM and ECJ are similarly affected by domestic politics. Can design mitigate the effects of domestic politics? The contrasting cases would suggest no. Without clarification on how to interpret this anomaly, the reader should be careful to not overstate the implications for institutional design.
Even with these shortcomings, this book is outstanding. I highly recommend it to students and scholars of international law, international courts, international organizations, and trade.
