On the Causal Significance of Legal Status: Comparing Compliance with Binding and Non-Binding Decisions of International Human Rights Supervisory Bodies

The contemporary human rights regime features a sizable number of monitoring and dispute settlement bodies charged with supervising compliance with the relevant treaties. The legal status of the supervisory bodies’ pronouncements, however, is not uniform. While the three regional human rights courts have been endowed with the authority of issuing legally binding judgments, the output of the supervisory bodies set up under the UN human rights treaties—called ‘views’ in individual complaints proceedings—is, by contrast, formally non-binding. It is clear that legal status is not by itself determinative of behavioral outcomes: Some legally binding judgments are not complied with, whereas compliance with views, though non-binding, is upward of fifty percent for some treaty bodies. This paper probes theoretically and empirically the causal significance of the distinction between legally binding and non-binding decisions for compliance, taking advantage of the fact that many countries are subject to the individual complaints jurisdiction of both a regional court and of one or more of the treaty bodies. Controlling for other factors that may contribute to or impede compliance—such as the strength of democracy and of domestic compliance constituencies, types of violations, and aspects of the domestic legal/political system—I employ probit models to explore the statistical significance of legal status for compliance, using a new data set that covers compliance by countries subject to judgments of both the European Court of Human Rights and to the views of the Human Rights Committee, the most active of the treaty bodies. The expectation is that legal status matters most when interacting with select country and decision characteristics. I complement the statistical analysis with illustrative case studies to reveal the causal mechanisms involved. Initial results show that when states comply with non-binding views, they follow the same behavioral script that in a study on strategies of compliance with the ECtHR I have termed “rational choice within normative constraints,” that is, while seeking to formally comply, states at the same time seek to minimize the attendant political and material costs of compliance and choose remedial measures accordingly.