Legalized Dispute Resolution: Interstate and Transnational

TLDR

The paper distinguishes two ideal types of international third‑party dispute resolution—interstate, where states control selection, access, and compliance with courts, and transnational, where individuals and NGOs wield significant influence over those same processes. This distinction is used to explain the politics of international legalization, including case initiation, courts’ challenges to national governments, judgment compliance, and the long‑term evolution of norms. Transnational dispute resolution lowers transaction costs, attracts more cases, more readily challenges state actions, yields higher compliance—especially when domestic courts mediate—and overall promotes deeper, wider international legalization.

Abstract

We identify two ideal types of international third-party dispute resolution: interstate and transnational. Under interstate dispute resolution, states closely control selection of, access to, and compliance with international courts and tribunals. Under transnational dispute resolution, by contrast, individuals and nongovernmental entities have significant influence over selection, access, and implementation. This distinction helps to explain the politics of international legalization—in particular, the initiation of cases, the tendency of courts to challenge national governments, the extent of compliance with judgments, and the long-term evolution of norms within legalized international regimes. By reducing the transaction costs of setting the process in motion and establishing new constituencies, transnational dispute resolution is more likely than interstate dispute resolution to generate a large number of cases. The types of cases brought under transnational dispute resolution lead more readily to challenges of state actions by international courts. Transnational dispute resolution tends to be associated with greater compliance with international legal judgments, particularly when autonomous domestic institutions such as the judiciary mediate between individuals and the international institutions. Overall, transnational dispute resolution enhances the prospects for long-term deepening and widening of international legalization.