A Comparison of the European and Inter-American Courts of Human Rights
Hawkins, Darren, Jacoby, Wade, Journal of International Law & International Relations
I. INTRODUCTION 35 II. DEFINING AND EXPLAINING COMPLIANCE: CLARIFYING THE CURRENT DEBATE 39 III. COMPARING REGIMES: CHECKLIST VS. DELEGATIVE COMPLIANCE 43 1. MEASURING COMPLIANCE 44 2. MEASURING COMPLIANCE: THE INTER-AMERICAN COURT 45 3. MEASURING COMPLIANCE: THE EUROPEAN COURT 51 IV. PARTIAL COMPLIANCE: GENERAL PATTERNS 55 1. THE INTER-AMERICAN COURT 56 2. THE EUROPEAN COURT 66 3. TYPES OF PARTIAL COMPLIANCE: THE IACHR AND ECTHR COMPARED 77 V. CONCLUSIONS 83
Expectations about the level of state compliance with international human rights norms vary widely, but tend to cluster around the extremes of high compliance or low compliance. Legal scholars such as Louis Henkin (1), and Abram Chayes and Antonia Chayes, (2) suggest that most states obey most laws most of the time. In the same vein, some political scientists suggest that when international institutions socialize states, the result is either stable compliance with international rules or an even deeper transformation of state interests to match international norms. (3) In contrast, other scholars are skeptical. Some suggest that international institutions are little more than cheap talk that reflect existing state preferences and practices. (4) Any observed compliance is the result of states designing easy rules that they already follow. Other scholars stress instead the large gaps between international rules and state behaviour, and argue that the independent effect of international institutions is negligible. (5) In the first skeptical version, international institutions are epiphenomenal, and in the second, they are redundant or even useless.
In this article, we will conceptualize and explore the middle ground between these opposing positions. Just as scholars of domestic governance systems have broken down the dichotomy between democracy and autocracy by examining imperfect democracies and varieties of autocracies, (6) we aim to break down the dichotomy between compliance and noncompliance by exploring partial compliance. While scholars are undoubtedly aware of the possibility of partial compliance, many write as if conditions of partial compliance are way stations on the path to full compliance. (7) Often, scholars suggest that the socialization of states by international institutions is a transformative experience, leading to the convergence of state interests. (8) In both views, partial compliance is thus merely transitional. No doubt, both patterns hold in many cases. We suggest, however, that partial compliance appears to be a relatively stable end point in many other cases--one that is more common than is often supposed.
This article will study the role of partial compliance in the context of the Inter-American Court of Human Rights (IACHR) and the European Court of Human Rights (ECtHR), (9) two adjudicative bodies with significantly different compliance regimes. The differences between the two courts are methodologically constraining, but they allow us to use the "most different cases" research strategy. According to this strategy, if an empirical phenomenon is present in political systems that are strikingly different, this increases confidence that it may be present in other systems as well. (10) The presence of partial compliance at both the IACHR and the ECtHR is therefore highly suggestive of the important role that partial compliance plays in international adjudication.
Through the cases of the IACHR and the ECtHR, this article explores the middle ground of partial compliance, defining its extent and contours and conceptualizing different types of partial compliance. The argument proceeds at two levels of analysis. …