A comparison of the European and Inter-American Courts of Human Rights.

• Author: Hawkins, Darren

1. 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 I. Introduction

   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. At the regional level, we identify two different compliance regimes that nevertheless display shared outcomes of partial compliance. At a state level, we identify four different types of partial compliance--types that generally can be observed in both regions. A clear view of the extent and contours of partial compliance seems necessary before scholars can turn to the subsequent step of explaining those patterns, a step beyond the scope of the current article.

   The next section will define our notion of partial compliance and place it within the broader International Relations literature on compliance and the effectiveness of legal norms. The third section will then outline how Europe and the Americas have built two quite different adjudicative institutions, with two contrasting compliance regimes. (11) The IACHR orders a series of clear, specific steps and then vigorously monitors compliance itself, often through multiple state-specific compliance orders. We will refer to this as a regime of "checklist compliance". In contrast, the ECtHR exercises what we call "delegative compliance", whereby its rulings will identify a violation, but not make orders on how to end the violation, compensate for its effects, or prevent future infringements. These decisions on the modalities of compliance are delegated to states and monitored by the Committee of Ministers, which itself is a political body. This difference between the two regimes is important from a methodological perspective: it affects the ways in which partial compliance can be observed and measured in each system and shapes the possibilities for comparison between them.

   The fourth section will argue that despite these methodological constraints, partial compliance is observably widespread in both regimes. In the IACHR context, partial compliance is more common than either total compliance or non-compliance. We find that 83% of the cases for which we have compliance reports (n=81) can be coded as partial compliance, with complete non-compliance at 11% and full compliance at 6%. From these patterns, we also find preliminary clues as to the sources of partial compliance. The data supports the common sense notion that compliance is higher when it is at its least complicated. For example, states are more likely to comply with judgments requiring monetary compensation than with those requiring action, and the broader the action, the less likely they are to do anything. We also find some evidence that partial compliance can be more frequent than full compliance when the Court is less diligent in its monitoring; this supports the hypothesis that the Court can increase compliance through careful follow-up to initial state inaction. (12)

   In the ECtHR context, we find that most states do comply fully with most judgments. Even in the three most recent years, arguably the busiest in the Court's history, full compliance was achieved in nearly 700 cases per year. At the same time, however, about twice that number of new judgments was being handed down each year. (13) It will be argued that there is far more scope for partial compliance in the last decade due simply to the great leap in cases "pending", that is, where the Court has found against a state, but the state has not yet shown evidence of full compliance. Of over 8,000 such cases that existed at the end of 2009, over 40% had been pending for over two years and some for much longer. Only about one third of the highest profile cases are closed each year (compared to about one half for all cases), and in 15 of 18 issue types, still pending cases outnumber cases closed in a given year. These are necessarily very indirect measures, and we treat them with caution. Looking in more detail at case studies of all leading cases in four countries, however, we find clear and direct evidence that 85 of the 90 pending cases we investigate are ones of partial compliance, rather than full compliance or non-compliance. We find also that the monitoring mechanism of the ECHR has undertaken substantial follow-up measures in the form of interim resolutions directed at states in 38% of the cases pending at the time of data collection. We show that virtually all of these are cases of partial compliance.

   In the fifth section, we will explain how the patterns of partial compliance observed in both Europe and the Americas can be sorted into four types (that are not mutually exclusive): 1) split decisions, where states do some of what a court orders but not all; 2) state substitution, where states sidestep a court order, implementing an alternative response to the decision; 3) slow-motion, where states move so slowly that it is difficult to say that full compliance occurs; and 4) ambiguous compliance amid complexity, in which states face particularly daunting or demanding tasks.

   In the concluding section, we will summarize and briefly elaborate on our major findings: despite the stark differences between the European and American human rights systems, states in each region consistently engage in partial compliance. They do so despite repeated efforts by international institutions to bring them to full compliance and despite the fact that their prior behaviour suggests they would prefer non-compliance. We approach compliance from a number of different analytical perspectives--examining compliance by state, by issue area, across time, and so forth--but always find remarkably durable levels of partial compliance.

2. Defining and Explaining Compliance: Clarifying the Current Debate

   This section distinguishes between compliance and effectiveness, showing how the two differ, but then identifying a class of cases (examined in this paper) in which compliance is a useful proxy for effectiveness. In subsequent sections, this will allow us to proceed to the trickier task of identifying empirical examples of partial compliance. We will also in this section distinguish our concept of partial compliance from important recent work on the "reception" of ECtHR rulings, and show how it improves on and often complements the existing literature. Specifically, the major existing theories used to explain compliance can all be deployed with our concept of partial compliance, which should greatly facilitate subsequent tests with the more subtle dependent...