Influencing Enforcement: The Application of International Law in Independent Judiciaries—The Case of the Alien Tort Statute

• Published date: 01 December 2023
• DOI: http://doi.org/10.1177/10659129231185596
• Author: A. Burcu Bayram,Banks Miller
• Date: 01 December 2023
• Subject Matter: Articles

Article

Political Research Quarterly

2023, Vol. 76(4) 1959–1972

© The Author(s) 2023

Article reuse guidelines:

sagepub.com/journals-permissions

DOI: 10.1177/10659129231185596

journals.sagepub.com/home/prq

Inf‌luencing Enforcement: The Application

of International Law in Independent

Judiciaries—The Case of the Alien Tort

Statute

A. Burcu Bayram

1

and Banks Miller

2



Abstract

What explains the variation in the interpretation and enforcement of international law by domestic judges? Can in-

dependent judiciaries control the enforcement of countries’commitments to international law? In this paper, we le-

verage a unique source of data—cases related to the Alien Tort Statute—to investigate how independent judges might be

able to enforce international commitments to human rights without concern for whether the state (here the United

States) has opted into the commitments in the f‌irst place. We show that behavioral factors in judicial decision making, and

particularly those related to judicial ideological preferences, are potent predictors of judicial enforcement of inter-

national law. This implies that states with highly independent judiciaries are right to be worried about their abilities to

control enforcement domestically, although we also f‌ind evidence that the U.S. government get a special degree of

deference in these cases.

Keywords

international relations, judicial politics, human rights

What explains the variation in the interpretation and

enforcement of international law by domestic judges? Can

independent judiciaries inf‌luence the enforcement of

countries’international legal obligations to international

law? The literature on domestic enforcement suggests that

states may be reluctant to agree to treaties when they know

that their (independent) domestic judiciaries are likely to

enforce those agreements (e.g., Powell & Staton 2009).

Indeed, the most accountable states may be the least likely

to agree to treaty restrictions in the f‌irst instance. The U.S.

is sometimes seen as the exemplar of this kind of “opt out”

state (Powell & Staton 2009, 157), regularly ranked as

having one of the most independent judiciaries in the

world (Linzer & Staton 2015).

In this paper, we leverage a unique source of data—

cases related to the Alien Tort Statute (ATS)—to inves-

tigate how independent judges might be able to enforce

international commitments to human rights without

concern for whether the state (here the United States) has

opted into the commitments in the f‌irst place.

1

We show

that behavioral factors in judicial decision making, and

particularly those related to judicial ideological

preferences, are potent predictors of judicial enforcement

of international law. This implies that states with highly

independent judiciaries are right to be worried about their

abilities to control enforcement domestically, although we

also f‌ind evidence that the U.S. government gets a special

degree of deference in these cases. Our f‌indings speak to

whether increasing reliance on domestic institutions to

enforce international commitments (e.g., Slaughter and

Burke-White 2006) is likely to be heavily premised on the

discretion of individual judges and how that discretion

might be controlled. Our results also suggest that dialogue

between international relations and judicial politics is

1

Department of Political Science, University of Arkansas, Fayetteville,

AR, USA

2

School of Economics, Policy, & Political Science, University of Texas at

Dallas, Richardson, TX, USA

Corresponding Author:

Banks Miller, School of Economics, Policy, & Political Science, University

of Texas at Dallas, 800 W. Campbell Rd., GR 31, Richardson, TX 75080,

USA.

Email: millerbp@utdallas.edu