¹ Epps, C, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago, University of Chicago Press, 1998) 572 Google Scholar; A Stone Sweet, Governing with Judges: Constitutional Politics in Europe (Oxford, Oxford University Press, 2000)Google Scholar; Halliday, T, Karpik, L and Feeley, M, Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism, Oñati International Series in Law and Society (Oxford, Portland, OR, Hart Publishing, 2007)Google Scholar.

² Teles, S, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, Princeton University Press, 2009)Google Scholar.

³ Sarat, , Austin, and Scheingold, , Cause Lawyers and Social Movements (Stanford, Stanford University Press, 2006)Google Scholar.

⁴ Individual countries choose only their own judicial nominees. A government can, if it feels very strongly, veto a controversial nominee from another country. But governments cannot ensure that a majority of international judicial appointees share its views of the law. ICs often randomly assign panels of judges to hear cases, so there is no way to predetermine the subset of judges that will rule on specific cases. IC decision-making follows the will of the majority, and many ICs still issue unanimous rulings so that it can be hard to associate individual decisions with individual judges. Also, most judges will not in any event be reappointed because successor governments generally substitute their own choices when the opportunity arises. For all of these reasons, IC judges are able to be truly independent actors. See Alter, K ‘Delegation to International Courts and the Limits of Recontracting Power’ in Hawkins, D, Lake, D, Nielson, D and Tierney, M (eds) Delegation and Agency in International Organizations (Cambridge, Cambridge University Press, 2006)Google Scholar; and Voeten, E, ‘The Impartiality of International Judges: Evidence from the European Court of Human Rights’ (2008) 102(4) American Political Science Review 417 CrossRefGoogle Scholar.

⁵ Burley, A-M and Mattli, W, ‘Europe Before the Court’ (1993) 47 International Organization 47 CrossRefGoogle Scholar; Weiler, , ‘A Quiet Revolution—The European Court of Justice and its Interlocutors’ (1994) 26 Comparative Political Studies 510 CrossRefGoogle Scholar; Rasmussen, H, On Law and Policy in the European Court of Justice (Dordrecht, Martinus Nijhoff, 1986)Google Scholar; A Stone Sweet ‘Judicialization and the Construction of Governance’ (1999) 32(2) Comparative Political Studies 147 CrossRefGoogle Scholar.

⁶ I have left out the control tools upon which Principal-Agent theory focuses: states re-legislating to reverse legal rulings, states flagrantly ignoring international legal rulings, governments retaliating against international judges. In fact, unanimity rules make changing legislation very hard so that ICs rarely if ever face serious threats of re-legislation (see A Stone Sweet, ‘How the European Legal System Works and Does not Work’ Social Science Research Network (2010); Pollack, M, ‘Delegation, Agency and Agenda Setting in the EC’ (1997) 51(1) International Organization 99 CrossRefGoogle Scholar; Tallberg, J, European Governance and Supranational Institutions: Making States Comply (London, Routledge, 2006)Google Scholar; Steinberg, R, ‘Judicial Law-making at the WTO: Discursive, Constitutional and Political Constraints’ (2004) 98(2) American Journal of International Law 247 CrossRefGoogle Scholar; Ginsburg, T, ‘Bounded Discretion in International Judicial Law-making’ (2005) 43(3) Virginia Journal of International Law 631 Google Scholar. And both stacking courts and retaliating against IC judges is also exceedingly hard to do (see Teles, above n 2). Thus, once again the claims of state control rest primarily on the assertion that ICs fear non-compliance with their rulings (eg Carrubba, C, Gabel, M and Hankla, C, ‘Judicial Behavior under Political Constraints: Evidence from the European Court of Justice’ (2008) 104(4) American Political Science Review 435)CrossRefGoogle Scholar; and even for this claim the evidence is highly questionable (see: Stone Sweet, ibid; Alter, K, ‘Agent or Trustee: International Courts in their Political Context’ (2008) 14(1) European Journal of International Relations 33)CrossRefGoogle Scholar.

⁷ Goldsmith, J and Posner, E, The Limits of International Law (Oxford, New York, Oxford University Press, 2005)Google Scholar; Guzman, A, How International Law Works: A Rational Choice Theory (Oxford, Oxford University Press, 2008)CrossRefGoogle Scholar; Garrett, G and Weingast, B, ‘Ideas, Interests and Institutions: Constructing the EC’s Internal Market’ in Goldstein, J and Keohane, R (eds) Ideas and Foreign Policy (Ithaca, Cornell University Press, 1993)Google Scholar.

⁸ Posner and Yoo conceptualise ICs as simple problem-solving devices which do not transform interests ( Posner, E and Yoo, J, ‘A Theory of International Adjudication’ (2005) 93(1) California Law Review 1, 6)Google Scholar. Goldsmith and Posner note that they cannot rebut the constructivist challenge that international law can reconstitute state preferences, but they ‘doubt it is true in any important degree’ (ibid, 9). Guzman assumes away the constructivist notion that interests can be transformed, defending the choice by noting that ‘developing a theory of international law requires us to make certain initial assumptions and to stick with them as much as possible’ (above n 7, 215).

⁹ Epps, above n 1; Rosenberg, G, The Hollow Hope: Can Courts bring about Social Change? (Chicago, University of Chicago Press, 1993)Google Scholar.

¹⁰ Not all constitutions grant supremacy to international law, so that conflicts between international and domestic laws are not necessarily resolved in favour of international law. Many legal scholars and judges conceive of national constitutions as superior to international law, so that governments are actually barred from following international law if doing so contravenes domestic constitutional law, or federal and democratic structures within a state.

¹¹ Sikkink, K and Lutz, E, ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’ (2001) 2 Chicago Journal of International Law 1 Google Scholar.

¹² Risse, T, Ropp, S and Sikkink, K, The Power of Human Rights: International Norms and Domestic Change (Cambridge, Cambridge University Press, 1999)CrossRefGoogle Scholar.

¹³ Moravcsik, A, ‘Explaining International Human Rights Regimes: Liberal Theory and Western Europe’ (1995) 1(2) European Journal of International Relations 157 CrossRefGoogle Scholar; Elster, J, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge, New York, Cambridge University Press, 2000)CrossRefGoogle Scholar.

¹⁴ Sunstein, >C, ‘Social Norms and Social Roles’ (1996) 96 Columbia Law Review 903, 915–27CrossRefGoogle Scholar.

¹⁵ Ibid, 929–30.

¹⁶ Voeten, above n 4.

¹⁷ This section draws significantly on Alter, K and Helfer, L, ‘Nature or Nurture: Judicial Law-making in the European Court of Justice and the Andean Tribunal of Justice’ (2010) 64(4) International Organization 563 CrossRefGoogle Scholar.

¹⁸ Bignami, F, ‘Creating European Rights: National Values and Supranational Interests’ (2005) 11 Columbia Journal of European Law 241 Google Scholar; A Stone Sweet, The Judicial Construction of Europe (Oxford, Oxford University Press, 2004)Google Scholar; Maduro, M, We the Court: The European Court of Justice and the European Economic Constitution: A Critical Reading of Article 30 of the EC Treaty (Oxford, Hart Publishing, 1998)Google Scholar; Weiler, J, ‘To Be a European Citizen: Eros and Civilization’ in Weiler, J (ed) The Constitution of Europe (Cambridge, Cambridge University Press, 1999)Google Scholar.

¹⁹ Stone Sweet, above n 18; Stone Sweet, above n 5; Burley, A-M and Mattli, W, ‘Europe Before the Court’ (1993) 47(1) International Organization 41 CrossRefGoogle Scholar.

²⁰ Alvarez, J, ‘The New Dispute Settlers: (Half) Truths and Consequences’ (2003) 38 Texas International Law Journal 405, 425–27Google Scholar; Posner and Yoo, above n 8, 55–57.

²¹ KJ Alter, ‘The Global Spread of European Style International Courts’ (2011 forthcoming) West European Politics.

²² Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1, 12.

²³ Copies include (in order of their creation): the Benelux Court (1974), Andean Tribunal of Justice (1984), Central American Court of Justice (1992), European Free Trade Area Court (1994), West African Economic and Monetary Union Court (1995), Common Market for East African States Court (1998), Central African Monetary Community Court (2000), East African Community Court (2001), Caribbean Court of Justice (2004), Court of Justice of the Economic Community of West African States (2002) Southern African Development Community Court (2007), and the proposed African Court of Justice and Human Rights. The Benelux court, created in 1974, is older than the ATJ; the other ICs are recent creations. For more on these copies, see Alter, n 21.

²⁴ The Andean system has from its inception allowed for sanctions. The EU system added sanctions in the Treaty of Maastricht in 1992 (see now Art 260(2) and (3) TFEU), and thus after the time period we studied. But this difference works in the favour of our analysis, in that the ATJ in theory had even more tools to compel compliance than those available to the ECJ during the formative period.

²⁵ We compare the first 25 years of the European Economic Community (1960 and 1985) to the first 25 years of the ATJ’s operation (1984–2007). In these time periods, the ECJ issued 305 non-compliance decisions and 1,808 preliminary rulings (an average of 86.1 cases per year), whereas the ATJ, with a geographically and demographically smaller region to oversee, issued 85 non-compliance decisions and 1,338 preliminary rulings between 1984 and 2007 (an average of 71.5 per year). ECJ data from Stone Sweet, above n 18, 72–79; For ATJ litigation patterns, see Helfer, L and Alter, K, ‘The Andean Tribunal of Justice and its Interlocutors: Understanding the Preliminary Ruling Reference Patterns in the Andean Community’ (2009) 42(4) Journal of International Law and Politics 871 Google Scholar.

²⁶ Weiler, J, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403, 2415–17CrossRefGoogle Scholar.

²⁷ ATJ decision 2-IP-88: point 3. ATJ rulings are available at: http://www.comunidadandina.org/canprocedimientosinternet/interpretacion_prejudicial.htm.

²⁸ Alter, K and Helfer, L, ‘Nature or Nurture: Judicial Law-making in the European Court of Justice and the Andean Tribunal of Justice’ (2010) 64(4) International Organization 563, 571–72CrossRefGoogle Scholar.

²⁹ Helfer, L, Alter, K and Guerzovich, M, ‘Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community’ (2009) 103 American Journal of International Law 1, 21–34CrossRefGoogle Scholar.

³⁰ Helfer, L and Alter, K, ‘The Andean Tribunal of Justice and its Interlocutors: Understanding the Preliminary Ruling Reference Patterns in the Andean Community’ (2009) 42(4) Journal of International Law and Politics 871, 920–28Google Scholar.

³¹ Repeat players are litigants who raise multiple suits. Scholars presume that repeat players are advantaged in litigation because of their experience, and that repeat players are prevalent where we find litigation aimed at influencing policy (see Galanter, M, ‘Why the “Haves” come out Ahead: Speculations on the limits of legal change’ (1974) 9(1) Law and Society Review 95)CrossRefGoogle Scholar. We found repeat players in the Andean context in the aluminium, alcohol, and second use patent cases, and regarding technical issues of Andean intellectual property and tax law.

³² In the aluminium cases, the ATJ removed itself from deciding on the legal validity of Colombian policy. In the alcohol cases, the ATJ condemned Colombian policy but did not require that national courts set aside conflicting domestic rules (see Alter and Helfer, above n 28). The ATJ did, however, condemn Venezuela for not privileging Andean ships over ships from neighbouring countries (see Helfer and Alter, above n 30, 910–11).

³³ Helfer and Alter, above n 30.

³⁴ Alter, K, ‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953–1975)’ in The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009) 65–72 Google Scholar.

³⁵ Weiler, J, ‘The Community System: The Dual Character of Supranationalism’ (1981) 1 Yearbook of European Law 257 CrossRefGoogle Scholar.

³⁶ It is hard to assess the quantity of law-making, but most studies of ECJ law-making identify continuity over time suggesting that there is no significant retreat from law-making despite bouts of Euro-scepticism. See A Stone Sweet, ‘Constitutional Courts and Parliamentary Democracy’ (2002) 25(1) West European Politics 77 CrossRefGoogle Scholar; Cichowski, R, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge, Cambridge University Press, 2007)CrossRefGoogle Scholar; Maduro, M, We the Court: The European Court of Justice and the European Economic Constitution: A critical Reading of Article 30 of the EC Treaty (Oxford, Hart Publishing, 1998)Google Scholar.

³⁷ Alter and Helfer, above n 28.

³⁸ A Vauchez, ‘Europe’s first Trustees: Lawyers’ Politics at the outset of the European Communities (1950–1970)’ and Madsen, M and Vauchez, A, ‘European Constitutionalism at the Cradle: Law and Lawyers in the Construction of a European Political Order’ (1920–1960) in Jettinghoff, A and Schepel, H (eds) In Lawyers’ Circles Lawyers and European Legal Integration (The Hague, Elzevir Reed, 2005)Google Scholar; Sacriste, G and Vauchez, A, ‘The Force of International Law: Lawyer’s Diplomacy on the International Scene in the 1920s’ (2007) 32(1) Law & Social Inquiry 83 CrossRefGoogle Scholar; Cohen, A, ‘Constitutionalism without Constitution. Transnational Elites between Political Mobilization and Legal Expertise (1940s–1960s)’ (2007) 23(1) Law & Social Inquiry 109 CrossRefGoogle Scholar; Davies, W, ‘The Constitutionalisation of the European Community: West Germany between Legal Sovereignty and European Integration 1958–1975’ (Dissertation, German, Kings College, London, 2008)Google Scholar.

³⁹ Bignami, above n 18; Conant, L, Justice Contained: Law and Politics in the European Union (Ithaca, Cornell University Press, 2002)Google Scholar; Lindseth, P, ‘The Contradictions of Supranationalism: Administrative Governance and Constitutionalization in European Integration Since the 1950s’ (2003) 37(2) Loyola of Los Angeles Law Review 363 Google Scholar; Lindseth, P, ‘Always Embedded Administration: The Historical Evolution of Administrative Justice as an Aspect of Modern Governance’, in Joerges, B Christian and Wagner, P (eds) The Economy as Polity (London, UCL Press, 2005)Google Scholar.

⁴⁰ Cichowski, above n 36; Conant, L, Justice contained: Law and Politics in the European Union (Ithaca, Cornell University Press, 2002)Google Scholar.

⁴¹ Alter, K, ‘The European Court’s Political Power’ in The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009) 90–107 Google Scholar.

⁴² Alter, K, Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press, 2001) chs 3 and 4Google Scholar.

⁴³ Alter, K, ‘Jurist Advocacy Movements in Europe: The Role of Euro-Law Associations in European Integration (1953–1975)’ in The European Court’s Political Power: Selected Essays (Oxford, Oxford University Press, 2009) 82–88 Google Scholar.

⁴⁴ Phone interview with Salvador Herencia Carrasco, Asesor jurídico, Comisión Andina de Juristas 20 May 2008 and 8 December 2008.

⁴⁵ Cavallaro, J and Brewer, S, ‘Reevaluating Regional Human Rights Litigation in the Twenty-first Century: The Case of the Inter-American Court’ (2008) 102(4) American Journal of International Law 768 CrossRefGoogle Scholar.

⁴⁶ Data for these claims is found in K Alter, The New International Courts: A Bird’s Eye View. BCICS working paper No 09 – 001 (2010).

⁴⁷ Alter, above n 21.

⁴⁸ This graph works with data reported in n 46.

⁴⁹ Helfer, L, ‘Exiting Treaties’ (2005) 91 Virginia Law Review 1579 Google Scholar.