Why (big) states cannot do what they want. International legalization at work

Abstract

Non-compliance occurs in all international organizations and hampers the effectiveness of international law. Despite increasing international legalization, we know little about how international courts abolish non-compliance. Why do states sometimes abolish non-compliance before but sometimes only after judgements or even threats with penalties? This article argues, first, that there are few differences between weak and powerful states in reacting to the European Court of Justice. Second, contrary to the expectation of legalization approaches, judicial means, such as judicial discourses, cannot always facilitate compliance. Third, by contrast to the expectations of enforcement theories, powerful states do not resist judgements and sanction-threats to a greater extent than weak states. Fourth, non-country variables, such as the gravity of the infringement or the choice of judicial interpretational devices, are scope conditions for the success of judicial discourse and sanctions and are crucial in explaining how norm violations of weak and powerful states can be resolved by the international courts.