Courting Compliance: Judicial Politics as a Constraint on the Domestic Enforcement of International Law

Abstract

This dissertation examines the ability of independent domestic courts to enforce international human rights law. I argue that the long-term ability of a domestic court to enforce international law depends on its institutional sensitivity to international law processes, the diffusion of adjudicatory power within a state, and the degree of flexibility the high court has over institutional rules. Unlike the majority of law and politics theories that treat judicial outputs as binary--with a court either siding with or ruling against the government--my analysis considers the ability of courts to shape their relations with private and public actors through the manipulation of institutional rules governing access, adjudication, and remedies. To support this argument I use both statistical analysis and in-depth case studies in three democratizing states: Colombia, South Africa, and Mexico. In each I examine the ability of newly constituted or newly reformed high courts to enforce international human rights law at the domestic level, and their ability to avoid or enhance their rights enforcement role in contentious cases.

In so doing I paint a much more complex picture than one of courts choosing in individual cases either to protect rights or capitulate to politicians. Rather, I demonstrate that courts are active participants in their institutional development, and that therefore: (1) their willingness to supply rights adjudication is not uniformly reflective of the potential demand for litigation; (2) that courts with flexible institutional environments do not treat procedural rules as fixed but that they morph access, adjudication, and remedies to fit the court's strategic legitimacy concerns; (3) that this process allows courts to avoid potentially institution-damaging backlash, increasing the likelihood that the court will successfully maintain or expand its enforcement role over time; (4) that the ability of a court to engage in this selective rights enforcement behavior is enhanced by a diffuse adjudicatory environment that provides greater opportunities for the high court to balance public concerns against political considerations; and (5) that where there is a strong link between the court's legitimacy and international law concerns the likelihood of judicial enforcement of international human rights law increases, even absent treaty ratification.