As our world becomes increasingly interconnected, countries enter into more and more international agreements. Tens of thousands of such agreements help form common rules about everything from trade relations to environmental policy to immigration rights. But what happens when countries break the rules? In his latest book, International Courts and the Performance of International Agreements, political scientist Matt Gabel examines how international courts work and how they can be most effective.
Claire Navarro: Hello listeners, and thanks for tuning in to Hold That Thought. I’m Claire Navarro. This week on the podcast, we’re thinking about what happens when countries break the rules. For example, let’s imagine that a group of countries all sign a treaty with one another. Then, at some point down the line one of the countries violates the agreement. The dispute gets taken to an international court, and then what happens? How do these courts work? How do they not work? Is it sometimes OK to break the rules? To look into these types of questions, I talked to Mathew Gabel.
Matt Gabel: Hi, I’m Matt Gabel. I am a professor in the department of political science.
CN: Gabel’s most recent book opens with a surprising statistic about the shear number of international agreements out there. As of 2010, there were some 30,000 of them. These agreements cover all sorts of issues.
MG: They could be about migration across a border between two countries. They could be about the security along a border, say between North and South Korea. They could be about the movement of goods: only one type of goods—bananas, textiles.
CN: They could be between two countries or several countries. They could be extremely complicated or relatively straightforward. But most of these agreements do have at least one thing in common, that is at some point countries will want to cheat.
MG: And there in lies the tension, which is you come to some agreement about us cooperatively managing this, but we’re all worried the other side might cheat and we all face incentives to cheat.
CN: After all, if whatever is in a treaty is something countries would have been doing anyway, that was easy to do all the time, why bother have an agreement at all? Every government faces pressure to break the rules, and the amount of pressure can change from year to year. So in some cases, governments will decide to break an agreement rather than deal with the consequences of obeying every rule every time. This is where international courts come in, and this is also the topic of Gabel’s recent book. Like local courts, international courts are set up to hear cases, figure out if some group is at fault, and decide whether or not there should be a penalty. There’s a slight problem with that last part, though.
MG: They don’t have an army. They don’t have a way to fine you—that is put you in jail should you not pay a fine.
CN: In other words, they don’t have any real power. Despite this, however, Gabel has found that international courts do help keep countries happy and agreements alive. The courts may not be able to enforce their rulings, but they do have an important purpose.
MG: Courts provide a forum for monitoring each other’s behavior but also for collecting information, maybe more effectively, about whether the party who is allegedly in violation of the agreement might have a good reason for it.
CN: That’s right. Courts regularly find that there are valid reasons for countries to break their agreements, and here’s the really important part of the story: in many of these cases, the other countries that are involved—the ones that actually obeyed the rules—they agree with the court. They essentially say, “Hey other governments that broke our treaty, that was a tough situation. This time, no harm, no foul.” And according to Gabel, this kind of flexibility can actually be good for everybody.
MG: Our story is that you want to sign on to agreements—you a country—where you want rules to be followed in normal circumstances, but in dire circumstances any one country might face, politically you want them to get a pass. Because you might be in that situation one day, too. And that sort of an agreement is more likely to be both agreed to in the first place and endure because it has this sort of flexibility built in.
CN: In the book, Gabel and his co-author have a theory about how international courts play into all this. According to their model, an international court is not the sort of isolated, totally neutral body you might assume. In fact, these courts work best when they pay attention to what everybody else thinks and then hold up the majority opinion. To test the theory, Gabel looked closely at the European Court of Justice. This court allows governments to file what’s called “third part briefs.” In these briefs, governments state how they think a case should turn out. Gabel looked at a lot of these cases and a lot of these briefs, and in the end, he found that his model held up. If the majority of the countries involved thought that a violating country should get a pass, the court agreed. If the majority thought a country was at fault and should get some sort of penalty, the country agreed with that, too. Of course, there could be other explanations for this pattern.
MG: You might think, “Oh, well that’s really just the court doing what’s legally right.” There’s is something called the legal merits, and one side just has a better case based on the existing treaty and the existing law and how it’s been interpreted in the past. In which case, yeah, you’d see the court rule with the balance of the member-state third party briefs, but that’s just because third party briefs are telling you, “This is the weak side, and this is the strong side.” And they’re more likely to weigh in on the strong side. To get at that, we came up with a couple different ways to control for when the legal merits were the case.
CN: For this reason, it was helpful to study the European Court of Justice in particular. This court has a position built in called the advocate general.
MG: What they’re asked to do is, independent of the court, for every case, to provide a preliminary opinion and say, “Here’s what we think the court ought to do.” And it’s generally a very long opinion, sometimes longer than the court’s ultimate opinion, and they say, “Here’s what we think the legal merits say you should do.” And you have that for every case in our analysis, and we can show that the court often follows what the advocate general does; it is a very strong predictor. But if they deviate from the advocate general, a very strong predictor of that is where the member states are.
CN: So legal merits do matter, but if members weigh in and push against the legal merits, the court goes along with the member states. Now, hearing this it’s easy to assume that something fishy is going on, or maybe even something corrupt. Shouldn’t courts ignore outside influence and always stick to the letter of the law? On this point, Gabel would actually disagree. According to him, it’s this sort of openness to interpretation that allows treaties to exist at all.
MG: If member states really face high domestic costs from complying with the agreement, they’ll leave. There are not many leaders I know in the world who’d say, “You know, we signed this them 20 years ago (I didn’t sign it), but if we go with this ruling, I’m going to lose the next election. Meh, that’s how it goes.” No! I mean, they are going to work real hard to get reelected, and that may mean violating the letter and possibly the spirit of those rulings at least in the short run. That is a practical reality, and if you want international agreements to survive, they need to be flexible enough to compensate for that.
CN: This type of insight opens up some questions, and actually even some potential answers, about how courts can be most effective.
MG: Some of these are just procedural rules. Can third party governments give briefs to the court? That’s not the only way a third party government could signal to the court how they think the court ought to rule. A member state to any treaty could have their foreign minister have a press conference and say, “By the way, there is this issue with Country X, and I really think Country X ought to be given a break for right now.” But they’re a formal way to do that that directly goes before the court and is probably a relatively efficient way to do that. Those sorts of provisions in the procedure you might look at when you see a creation of international agreements and say, “Well, why are they going into all this detail about how the courts are organized.” And I’d argue that that is probably time well spent—that those sorts of design features will help the agreement survive. And ignoring them or intentionally putting up barriers to that—“the court is not allowed to have any information from parties that not involved in the case directly”—may seem like a less prejudiced system in some way but could also be less effective.
CN: Understanding how courts actually work, and not just how many people assume they work, will only become more important going forward. In an increasingly globalized world, countries will need to work together on everything from economics to environmental policy to human rights issues. If we are all going to be able to cooperate, it’s important to understand how to move forward even when countries cheat.
MG: If you think we should only agree to the rules that all countries will always enforce all the time, 100%, that is you will always have widespread, complete compliance, you shouldn’t bother. That ain’t happening. That doesn’t mean that you can’t have compliance a fair amount of the time that actually leads to a better collective outcome—that’s what we’ve got in our book. We’re saying that you want a system of judication that is sensitive to the fact that there will be occasions on which China is going to have to violate this treaty. And they are going to get some bad press for it, but we shouldn’t say that means the agreement has failed. So long as they are selecting relatively rare instances where China needs the room to deviate for a while and they will do the same for us (that will be recognized), then most of the time, you get compliance, which is a lot better than the alternative of no agreement and countries just doing what they want to do and recognizing that there will be no reciprocity and you end up with more pollution if you are talking about environmental agreements or human rights violations if you are talking about human rights. Don’t let perfect be the enemy of the good, because we do not have an institutional design for perfect. But this is an institutional design that gets you, in a welfare sense, a better outcome for all the signatories than you get if there is no opportunity to have an agreement.
CN: Many thanks to Matt Gabel for joining Hold That Thought. His latest book, International Courts and the Performance of International Agreements, came out earlier this year. For many more ideas to explore, please find us at holdthatthought.wustl.edu. We’re also on Facebook and Twitter, and you can find our weekly podcasts on ITunes, Stitcher, PRX, and Soundcloud.