Forthcoming as Ch.

14 in Langford &
Rodriguez G., Making it Stick
Solving the Problem of (Non)Compliance in
Social and Economic Rights Litigation

Daniel M. Brinks

Winning is not everything. In fact, winning a judgment from a court may just be the opening

salvo in a prolonged campaign to bring economic, social and cultural rights (ESCR) to bear

on the realities of a particular group or individual. On the other hand, winning is not

nothing, as some skeptics have suggested. The chapters in this book present a mixed record

of compliance with judicial decisions in ESCR cases around the world. The cases represent

a fascinating cross-section of the sorts of demands that fall under this category, and may be

used to generate some hypotheses about the conditions under which compliance is more or

less likely. The table in the appendix summarizes many of the cases discussed in the

various chapters, and identifies the main contribution of these experiences to the

discussion in this chapter. In what follows I will use a simplified framework to organize the

variables identified as important in each of the chapters and construct a unified scheme for

understanding the challenges and opportunities litigants face in making their hard-won

ESCR judgments effective.

The subject matter of these cases certainly poses compliance challenges. ESCR

judgments are perhaps not the hardest case for compliance – judgments that threaten the

Daniel M. Brinks, Associate Professor, University of Texas at Austin.

1
political survival of powerful political actors, among others, may be harder – but they pose

nontrivial challenges to courts. They often, though not always, as Viljoen (this volume)

reminds us, involve complex affirmative orders requiring governments to do difficult

things they have thus far been unwilling to do, to spend money they had perhaps slated for

other priorities, all, perhaps, on behalf of marginalized groups or to address a problem that

has been festering for a century. They might require a government to take on a problem –

such as the contamination of the Riachuelo watershed (Morales et al., this volume) – that

has been two hundred years in the making, and has stymied governments for decades. The

challenges of fulfilling ESCR would likely be daunting for a single bureaucracy seeking to

order its own priorities and supervise its own lower ranks, let alone for one bureaucracy –

the courts – seeking to reorder the priorities of another, and supervise the latter’s

performance.

Whether we think courts are “effective” in this context largely depends on our prior

expectations. It is clear from the chapters that they are accomplishing something; it is also

clear that they are accomplishing less than what ESCR advocates would like; and yet, in

some ways, what is remarkable is that courts in many instances succeed at all. My goal here

is not to proclaim that courts are or are not the right way to make ESCR effective but rather

to offer a framework to organize the many different variables that could affect the

likelihood their judgments will be implemented, including variables that are not discussed

in this volume. This conceptual framework may not prove which one variable might be

most important to a theory of compliance, but it should be helpful to litigators who wish to

increase the likelihood that their hard-won judgments will actually make a difference, and

2
it may be helpful to academics who are grappling with the difficult theoretical issues

surrounding compliance with judicial decisions.

My starting point for a theory of compliance is loosely rationalistic, with one

important exception, as we will see. The descriptions in the chapters suggest we should

emphasize the decision calculus of the target of the litigation, and consider that the target

will comply not out of a general conviction that compliance is the right thing but because

the net cost of compliance is less than the net cost of noncompliance – or, to say the same

thing in another way, because the net benefits of compliance outweigh the net benefits of

noncompliance: COMPLY IF Cc<Cd, where Cc is the expected net cost of compliance and Cd is

the expected net cost of defiance.

There are, of course, costs and benefits on both sides of the scale, so the target will

be required to do a cost-benefit analysis for each side, and then weigh the net results

against each other. Moreover, it may be that the target will be balancing apples and oranges

– the costs and benefits of compliance and noncompliance are not necessarily symmetrical,

either in the sense that we would find similar things on both sides of the scale, or in the

sense that the costs to the target are equal to the benefits to the proponent. All of this

suggests that the targets of litigation may not always be performing an exact, conscious

calculation. Still, it seems likely that something like this is actually going on – people who

lose a case in court often seem to ask themselves what it will cost to comply, and what

might happen if they do not.

Compliance is the counterpart, typically, of enforcement, and many of the chapters

use the terms interchangeably. Theories of systems of social control distinguish between

first-, second- and third-party-based enforcement, depending on whether the impetus

3
comes from the obligated party (whom I will call the target), the beneficiary (herein called

the proponent) or a third-party enforcement mechanism, whether state or nonstate

(Brinks and Botero 2014). First-party theories of compliance tend to emphasize norm-

based, voluntary compliance, or self-enforcing schemes (in which violating the rule brings

its own punishment). These theories lead us to identify as the primary motors of

compliance such variables as the legitimacy and features of the court (Gibson and Caldeira

1995; Gibson et al. 1998), or of the process (Tyler and Rasinski 1991), or even of meta-

norms of compliance (Bergman 2009), which make it more likely that actors would

voluntarily comply with an order. Second-party enforcement would focus our attention on

the ability of the proponent to impose costs directly on the target, say through a boycott, or

by mobilizing a political opposition to a noncomplying public official. Third-party

enforcement, meanwhile, pushes us to look for mechanisms of enforcement that are

external to the immediate relationship between proponent and target – say, the

intervention of an ombudsman or prosecutor in a domestic system, or of another member

state in an international system, or of a global “naming and shaming” community, for

failure to comply.

The experiences related in the chapters of this book make clear that, in the context

of ESCR judgments, there is very little unmediated first- or third-party enforcement. If the

judgment is to be effective, the second party – the proponents – will have to do or threaten

to do much of the work. There are a couple of instances of what we might call expansive

compliance that look quite voluntary, and thus could be classified as first-party

enforcement – the Costa Rican health service extended medical care to all people living

with AIDS after an individual judgment, for example, and established democracies tend to

4
comply with human rights judgments of the European Court of Human Rights even in the

absence of any visible coercive pressures. While these look like voluntary compliance or

first-party enforcement, we will see in the sections that follow how they too can be seen as

the product of a cost-benefit analysis based on the anticipated reaction of others. The

anticipated reaction can either be the reaction of the affected second parties themselves, or

of third parties at the urging of the affected parties.

In addition, there is occasionally the possibility that a prosecutor (a classic, state-

based, third-party enforcement agent) might file criminal charges against a noncomplying

public official – see the chapters on Costa Rica, again, Brazil and Argentina. But there is

little evidence that these third-party mechanisms have worked in most of the cases

described in this volume, and in any event it is clear that they are triggered only if the

second party motivates them, thus blurring the distinction between third- and second-

party mechanisms. Compliance, at least in the costly, high-profile cases that are the primary

subject matter of this book, is mostly the product of what is at best a mediated version of

second-party enforcement: the rights-bearers who benefit from the judgment must be

prepared to generate costs of noncompliance for the first parties, sometimes by engaging

with third-party mechanisms. When the first party appears to comply voluntarily (albeit

after refusing to comply and being sued initially), it seems likely to be the product of an

implicit cost calculus that still depends on the possibility that the second (occasionally, the

third) party will be able to bring pressure to bear on the target.

Kapiszewski and Taylor have arranged the various factors producing compliance

into a framework that distinguishes attributes of the case, of the regime or the state, of the

court and of the ruling (Kapiszewski and Taylor 2013). This seems useful in cataloguing the

5
variables, but such a taxonomical framework is not meant to address the mechanism that

might be at work or why the individual variables might be important. For these reasons, it

seems more useful to organize our discussion here around a more dynamic framework that

can help put the different variables in conversation with each other, suggesting the ways in

which one sometimes trades off against another, or conditions the impact of a third, in

something that resembles a cost-benefit calculus.

This simple cost-benefit model should be understood as a heuristic simplification, in

order to render visible some recurring patterns that affect the likelihood of compliance,

rather than as a traditional formal model or a purely rationalist, materialist, self-interest-

based model. The chapters indicate that political actors’ calculations typically include

financial and political costs, which we could capture with a purely rationalist model. But in

many cases, it seems clear that the calculations can also include an ideological or normative

cost that is a function of the substantive commitments and prejudices of the actors in

question, and thus something that is not a standard part of rationalist models of political

behavior.

To speak of normative or ideological costs comes close, as we will see, to a more

normative theory of compliance, but the narratives in the chapters suggest that it is more

helpful to include these normatively grounded impulses to comply (or to defy) in the

ultimate cost-benefit calculus. The case studies suggest that a meta-norm of compliance,

when it exists, or a normatively rooted desire to comply with rulings that advance a

particularly favored interest or group, or an ideologically based resistance to the rulings of

foreign and international courts, is just one of many factors that are traded off against one

another. In the various chapters, actors can sometimes be seen weighing their normative

6
preferences against the financial or political costs of noncompliance. An exceptionally high

fiscal or political price may well override the impulse to comply even for the most human

rights- or rule-of-law-oriented actors. Moreover, affect can color and determine the weight

of the other costs – a million dollars spent on housing for members of the dominant group

may carry a lower political cost than a single dollar spent on the despised Roma. The

decision whether or not to comply, then, is a function of a complex mix of often mutually

interacting and crosscutting considerations.

For this reason, the case studies in this volume suggest that compliance is best

understood not as a more or less automatic action, the product of a meta-norm of

compliance, or habituation, for example. In fact, the case studies suggest that the dominant

considerations, especially in important structural ESCR cases, are case-specific rather than

the product of diffuse support for a court (Caldeira 1986; Gibson et al. 1998), the

accumulated legitimacy of a court (Epstein et al. 2001) or a generalized expectation by the

public that it should back the court (Carrubba 2009). This is not to deny that some societies

may have such a meta-norm, whatever its origin, or that some courts may be more costly to

defy given their level of public support. Rather, it is to recognize that even in such societies

and for such courts there is variation in compliance across cases and over time, which

seems to be the product of a decision-making process that looks a lot like the balancing of

competing considerations I describe here. Such meta-variables and meta-calculations, then,

are best understood within the framework I propose, as making it easier or harder to

generate costs for noncompliance, rather than as a separate paradigm altogether.

I use the language of costs, simply because it seems more intuitive in the context of

judicial orders which are expected to require costly compliance. But of course, as noted,

7
there are both costs and benefits of both compliance and defiance, and what we are

searching for is really the balance between the net cost (benefit) on each side of the

equation. What is less clear is how different circumstances affect that cost-benefit calculus,

and how advocates can strategically increase the likelihood of compliance. The

introduction to this volume identifies a number of variables – characteristics of the legal,

civil society and political environments – that might affect one or the other side of this

inequality. I will use the more particularized findings and arguments from the chapters to

explore which factors matter in which contexts, and why, with an eye to exploring what

litigants can do to raise the cost of noncompliance or lower the cost of compliance without

compromising on their goals. To see whether we can expect compliance in a particular

case, we would have to weigh each of these factors, as applicable in that case, on both sides

of the scale, and see what the calculus produces. In what follows, I do not do this for any

one case. Rather, I discuss the variables separately, to highlight what and how much they

might contribute to the calculus in a particular case.

At its most basic, then, the problem of compliance with judicial orders can be

reduced to the simple inequality laid out earlier: we should observe compliance only if the

target of the order considers that compliance would be less costly than noncompliance.

COMPLY IF Cc<Cd. The inequality, as abstract as it is, should make one point absolutely

clear for activists seeking to use the courts to change rights on the ground: The greater the

“cost” of the relief requested, the more litigants must be prepared to invest in enforcement;

the resources available for enforcement should be considered in deciding how costly, in

political, financial and ideological terms, a remedy to ask for.

8
14.1 Types of Costs

The first step, of course, is to define what we mean by cost. Here, the findings in the various

chapters are very useful, helping define and catalogue the types of costs, already briefly

identified, that affect the compliance decision. The costs and benefits of compliance or

noncompliance in these cases appear to have at least three dimensions, a purely financial

or material one, a political one and what we might call a normative one, for lack of a better

term. In this section I explore some of the less obvious implications of considering each of

these classes of costs separately.

Financial costs: What I mean by financial costs is conceptually obvious, although

it might be hard to measure empirically in particular cases, but can still use some

elaboration. Sometimes the cost is self-evident, and acts as the primary motivation. A

recurring objection to certain right to health awards is that the medications in question are

too expensive. Surely at least one reason the Brazilian government has resisted

Interamerican Court orders that would prevent construction of the massive Belo Monte

dam is the anticipated loss of the expected financial benefits of building the dam. One

reason individual cases in Argentina generate greater compliance than complex structural

cases (Sigal et al., this volume) is because they are cheaper to satisfy. It is evidently not

true, as Viljoen and Çali and Koch forcefully argue, that ESCR cases always entail greater

financial outlays than Civil and Political Rights cases. But many ESCR cases will require

great outlays of resources that targets had undoubtedly intended to destine for other uses.

Alternatively, as in the Belo Monte case, various open-pit-mining cases, or the controversy

over building a highway through the TIPNIS preserve in Bolivia, a judgment may require a

9
government to forego the expected economic benefits of great projects, in deference to the

rights of local populations to a clean environment, or to ancestral rights to land.

Moreover, not all dollars spent weigh the same. Opportunity costs mean that a dollar

in fat years is not the same as a dollar in lean years, just as a dollar in New York is not the

same as a dollar in Mississippi or India. The clearest example of this is the year-to-year

variation in compliance with education rights rulings. Initial compliance in New York faded

once an economic crisis required state governments to trade off spending on various other

priorities (Shanor and Albisa, this volume). Similarly, the provincial government resisted

paying a multimillion-dollar award favoring women, in the NAPE decision of the Canadian

Supreme Court, in years of straightened budgets, but an easing of the budgetary crisis and

continued political pressure led to an eventual payment (Porter, this volume). Finding the

opportune moment to litigate may be as important as the actual outlay compliance would

entail – although, of course, it may well be that one must litigate precisely when resources

are most strained because that is when budgets are cut and social programs curtailed.

While there is, within the ESCR category, a great deal of variation in the potential

expense of compliance that cannot be controlled, activists would be well advised to take

into consideration ways in which they might reduce the material cost of compliance for the

target of the litigation, without compromising on their goals. In Brazil’s health rights

litigation, plaintiffs wittingly or unwittingly ease the pain of compliance by joining local,

state and national authorities as defendants, even though the former may be the only ones

technically charged with providing a particular health service.

Perhaps more importantly, many of the chapters discuss the courts’ occasional use

of more open-ended, dialogical or deliberative orders, in which the target plays a part in

10
designing the actual mode of compliance. There has been a great deal of debate, reflected

also in the pages of this volume, regarding whether dialogic, open-ended judgments aid or

hamper compliance. One of the ways in which they might help with compliance is that they

could allow the target to design more efficient, lower-cost ways to achieve the goals of the

litigation than could be designed by a court with limited experience and information in the

policy area.

One strategy many litigants and courts have employed is raising the financial costs

of noncompliance, rather than trying to reduce the cost of compliance. US courts have

levied fines on noncomplying agencies in prison reform litigation, for example. Among the

case studies in this volume, the reality or threat of sanctions appears in several chapters. In

Costa Rica, bureaucrats are subject to fines or criminal penalties for noncompliance in their

individual capacity; this may be one reason why the career civil servants who are charged

with spending public money on court orders appear to comply at a fairly high rate – a

personal cost balanced against a cost to the state offers an easy choice (Wilson and

Rodriguez, this volume). In Argentina, on the contrary, as we will see, these fines do not

appear to work at all – individual bureaucrats turn over too quickly to be held personally

responsible, and perhaps for the same reason do not seem to care when their agency is

subject to fines (Sigal et al., this volume). The effectiveness of fines – whether personal or

on the state – seems to be conditional on the existence of a stable, professionalized

bureaucracy, which provides someone to actually bear the cost of the fine.

It seems reasonable to suggest that in many cases compliance with these judgments

can save money over the long term. Structural decisions improving health and education

outcomes should have a long-term positive impact on the economy. Some of the lower

11
court decisions in the Texas education litigation have made this point explicitly. Many of

the demands pressed by advocates and described here could be recharacterized as

investments in human capital. But there is little indication in the chapters collected here

that policymakers are willing to accept that argument when it comes from a court.

This suggests that proponents may well have an advocacy task to perform even

before securing a judgment. It is hard to imagine a purely financial cost-benefit analysis

that would favor compliance with a judgment that prioritizes the cultural rights of a

minority group over the vast wealth expected from many of these mega projects, or the

environmental rights of small rural communities over the many projects governments

sometimes imagine funding through a mining boom. For this reason, it may well be that the

first task for many groups anticipating such a judgment will be to educate and persuade the

relevant decision makers to include a wider array of costs into their calculus. As we will

discuss in the next section, changing normative commitments can change how decision

makers weight different considerations, so that environmental or multicultural

commitments can begin to have some intrinsic weight. Similarly, broadening the calculus,

say, to sustainable development or to human development may allow proponents to place

other and longer-term considerations on the scale. And, of course, changing the politics of

the issue on a national scale may well upend the calculus.

Normative costs: By normative costs (benefits) I mean the clash (congruence)

between the objective of the litigation and the proclaimed goals and values of the

organization or actor in question – the inclination of a “green” company to comply with an

environmental ruling, or the objection of a libertarian party to a ruling requiring the

expansion of social protections, for instance. The product of this normative cost (benefit) is

12
the resistance (desire) to do something, which results from normative or ideological

commitments, from prejudice or sympathy, and which cannot be reduced to the financial

cost of changing course, the political cost of doing something unpopular, or even the

political cost of appearing hypocritical. Normative and ideological considerations can have

intrinsic weight, or they can give positive or negative valence to judgments and radically

change the weight of financial and political considerations.

It is likely that normative costs can be distinguished from both financial and political

costs. It is one thing to force a social democratic party to provide a better health service,

and another to force a libertarian party to do so even if they would both face the same

consequences at the polls; it is one thing to prod a left-liberal party to offer state benefits to

immigrants, another to order a right-wing anti-immigrant party to do so, regardless of

public support for such measures. For a bureaucrat or a judge, we can imagine some claims

that are more consistent with their practices and training, and others that appear to run

against the grain of their craft. In part this is a consequence of the differential political costs

each would suffer from complying or defying – parties must cater to their bases,

bureaucrats must justify their actions after the fact, judges must be seen as applying the

law. But some of the findings in this book suggest that there is an intrinsic normative cost

to actions that contradict an actor’s ideological or normative commitments and prejudices.

There are multiple reasons why this normative cost might matter. If the goal of the

litigation is clearly consistent with the expressed goals and values of the targets, it will

simply be easier to secure compliance once the initial resistance is overcome. In this case,

the litigation can simply adjust the means, or the timing, or the priorities of a target, rather

than changing its very goals. The litigation may serve to provide political cover, the litigants

13
may actually find allies inside the organization or the target may decide simply to claim

credit for the outcome it was forced to provide. Normative considerations also color how

the other classes of costs are processed: If the case or issue has broad normative support

among the population, noncompliance will more easily trigger mobilization in support of

the claimants, media coverage and other vehicles for the eventual imposition of political

costs. Similarly, financial costs and the trade off with other public policy goals will be seen

as justified. In short, for a number of reasons, compliance should be less costly, and

noncompliance more costly, for a target that has proclaimed itself to be for whatever was

being litigated, than for an actor that has publicly defined itself as an opponent.

Noncompliance carries similar normative costs. In many emerging democracies

there are some politicians who define themselves by reference to the rule of law, so that

resisting a court order, regardless of its content, can generate political and ideological

costs. The same, of course, is true for large corporations, which might, as in the case of

antiretrovirals in South Africa, decide to provide the remedy or stop the violation in order

to avoid appearing callous. Politicians and corporations alike might adopt a specific posture

that is more or less congenial with ESC rights – witness the various corporations with

“green” messages, or corporations committed to defending intellectual property rights. The

former should pay a heavier ideological cost for defying court rulings that direct them to

fulfill their express commitments, while the latter should resist complying with rulings that

limit patent protections.

Examples of the normative cost of compliance are scattered throughout the volume.

In several cases (TAC and Westville, in South Africa, Verbitsky, in Argentina) politicians

had staked out a very visible position against the policy the court required. In all these

14
cases, as expected, the government resisted compliance even if public opinion was in favor

of the court ruling (so there was actually a net political cost to defiance). It is difficult to

separate the normative from the political costs in the Roma cases in Slovakia and the Czech

Republic, but in Greece at least it seems the politicians themselves were ideologically

committed to removing the Roma from their communities. These cases create problems for

politicians that fall on the border between political and ideological costs.

Clearly, normative costs can trump or transform financial concerns. Dobrushi and

Alexandridis describe how municipal governments pay reparations to the Roma but are

unwilling, when it becomes a public matter, to adopt policies that might encourage “an

influx of inadaptable citizens of Gypsy origin” (this volume, p. 000). The issue is not the

cost, but rather, as these authors suggest, the fact that the proponents belong to a despised

social group. Similarly, Latin American governments that resist the very notion of

reproductive rights have rather quickly paid individual reparations to plaintiffs in these

cases, but have strongly resisted policy changes that would strengthen reproductive rights

(Cabal and Phillips, this volume).

By the same token, cases with positive valence strongly color the financial cost of

compliance/noncompliance. Essentially the same claims in housing rights litigation in

South Africa lead to compliance in some cases and defiance in cases involving stigmatized

plaintiffs. Spending on education triggers less resistance than spending on Roma housing. It

is difficult, in Brazil, to deny medications to individuals who need them, no matter what the

cost, while structural responses, which lack the sympathetic individual plaintiff but could

save money in the long run, are unsuccessful (Ferraz, this volume). In the long-term

strategy to bring Western medicines to bear on the HIV epidemic ravaging South Africa,

15
litigants could have first asked for funding to prevent and treat infections among men who

have sex with men, or intravenous drug users or sex workers, but they chose pregnant

mothers and their children. Cost was an important part of the government’s objection to

the demands, and the cost might have been much the same in all those cases, but clearly, it

was best to begin with the prevention of mother-to-child transmission of HIV, with its

innocent victims and sympathetic claimants.

Separation of powers concerns fit under this rubric too. Brazilian judges resist

issuing structural judgments that would infringe on their notion of legislative prerogatives,

and bureaucrats may well resist such orders, even though the cost of individual litigation is

clearly exorbitant for both courts and public health budgets. European governments find it

more difficult to accept the orders of a nonnational court than the orders of their own

courts or the policy decisions of their own legislators, regardless of their content.

Nationalist governments find it harder to comply with international court orders than

governments that do not employ nationalist rhetoric. Essentially the same order might

have very different valence, depending on normative considerations about who properly

should exercise policymaking authority on a subject. In the case of African Commission

decisions, governments find it easier to comply with judgments that are based on violations

by predecessor governments, than with those that are grounded in their own violations

(Viljoens, this volume). All of these distinctions seem driven by normative or ideological

considerations, not cold-blooded rational calculations, but it is also clear that these

normative considerations are but one of the elements to be placed on the compliance scale.

Crucially, for many publicity is positively associated with compliance – presumably

because it makes it possible to impose political costs for noncompliance (Staton 2010), as

16
discussed in the following section. These findings, however, suggest a caveat: In cases with

strong negative valence, publicity can kill compliance by increasing its political cost. The

Municipal Council of the town of Dobšiná in Slovakia seemed poised to pass a housing

policy that would help the Roma, but did an about-face when it became known and the

public objected (Dobrushi and Alexandridis, this volume).

There is some debate and disagreement in this volume regarding the perceived

strengths and weaknesses, advantages and disadvantages, of so-called soft, dialogic or

open-ended remedies. They seem to work in some cases but not in others. For some

advocates they are the preferred result, for others they are weak outcomes – nearly akin to

a loss – because they offer little purchase with which to wage a compliance campaign. If

compliance depends on monitoring, and the specificity of the order provides the metric by

which to measure compliance, then these vague orders should be more difficult to enforce

(Staton and Vanberg 2008). The difference between these outcomes may well be

attributable to the normative valence of the cases in question. Soft remedies may work best

(only?) in high positive valence cases: These remedies are hard to monitor; they don’t offer

benchmarks and clear moments of noncompliance that could help coordinate political

costs; but they do give a willing defendant the flexibility to find the most efficient way to

comply, thus reducing resistance to the order. If this is true, then advocates should seek

more concrete and directive orders in negative valence cases like the Roma discrimination

cases, and more open-ended soft orders in positive valence cases like the Right to Food

cases in India.

Political costs: Often both financial and normative costs are processed through

politics. Indeed it is hard to imagine political costs that are not driven by the financial and

17
normative dimensions of the case in question. The politics of an issue or court are not

determinative – just as popular politicians can sometimes afford to challenge and ignore

courts, so too can popular politicians sometimes afford to comply with unpopular rulings

by courts – but all the chapters make it clear that the politics of compliance are central.

By political costs I mean the burden of public disapproval and its attendant negative

consequences for public officials, bureaucrats or businesses, as well as the burden of

disapproval of a more specific political principal, such as the executive, for a judge, or a

political appointee, for a bureaucrat. A corporation or politician defying a popular and

public court order should expect to incur some loss of public support (Staton 2010). It may

also be that, regardless of the subject matter, politicians might pay a price for defying the

order of a popular court, which is not the same thing (Gibson and Caldeira 1995). We often

focus on the more extreme versions of this cost – whether a politician will lose an election,

a bureaucrat his or her job – but targets are susceptible to more subtle expressions of

disapproval as well. Negative public opinion can affect business enterprises by the loss of

what is sometimes called “good will,” the intangibles that affect the decision to purchase

products from a particular source or with a particular brand, even in the absence of a

coordinated boycott. It can affect bureaucrats or government agencies, even formally

autonomous ones who nevertheless depend on political support for funding and often on

public support for some measure of real autonomy from politicians. And it can affect

politicians electorally – the equivalent of a boycott – or by depressing their public opinion

ratings – the equivalent of good will.

A boycott, of course, is more effective but requires a higher level of coordination and

investment. Similarly, elections are blunt and relatively ineffective instruments for

18
producing compliance in individual cases. Certainly there are no examples in the pages of

this volume of politicians who were unseated for failing to comply with the order of a

domestic or international court. Still, it is clear that targets are attuned to the political

implications of a decision to comply with or defy a court order. For example, when there

are more potentially responsible parties, so that responsibility is diffuse and hard to pin on

any one actor, compliance declines (Morales, Sigal and Rossi, this volume). Judges in Brazil,

attuned to the political repercussions of structural rulings, stick to individual cases (Ferraz,

this volume). This finding is consistent with earlier arguments that courts can be most

effective when they are backed by a powerful political actor – the executive, the legislature

or the organized public (Brinks and Gauri 2008: 345–349). And it is congruent with

arguments that posit that intra-electoral societal accountability, in which social groups join

legal and political action, can be effective at moving elected officials (Smulovitz 2003;

Smulovitz and Peruzzotti 2003; Peruzzotti and Smulovitz 2006).

Less democratic governments, naturally less subject to domestic political pressures,

are less likely to comply (Viljoen, this volume). Some experiences shared at the conference

that originated this volume, but not included here, confirmed the effect of civil and political

rights on the likelihood of compliance. When such rights are denied – either because the

regime is authoritarian, as in Mubarak’s Egypt, or because the proponents are effectively

denied political rights within a nominally democratic regime, as in the case of Palestinians

and Israeli Arabs in Israel – compliance was much more difficult to secure. Similarly, when

the litigants are poor, excluded from the political process, or otherwise less capable of

exerting political pressure, we should expect a lower likelihood of compliance regardless of

the cost of compliance, simply because these plaintiffs have less collective political capital.

19
The Roma clearly suffer from this disability – they are often politically irrelevant, if not a

liability, they have few if any allies within the administration and bureaucracies, and thus

have very little leverage to move public officials. Clearly a robust measure of civil and

political rights is often a necessary component for a group attempting to secure compliance

with economic, social and cultural rights.

Several chapters make clear that collective action issues strongly condition the

ability of proponents to impose political costs. Morales et al. (this volume) show how the

cases that targeted a medium-sized, geographically concentrated population – neither

individuals nor broad societal interests – were the ones that generated the most

compliance for the leading public interest litigation group in Argentina. When the

beneficiaries are one or a few individuals, they can exert very little political pressure, so

compliance is weak, even if the overall cost of compliance is low. But as the number of

beneficiaries grows, and when they are part of an organized neighborhood, their political

capital grows faster than the cost of compliance. In these cases, in the end politicians

compete to claim credit for solving the problems of the community. As the number of

beneficiaries continues to grow, however, collective action problems make it harder to

bring costs to bear. Meanwhile the cost of compliance continues to grow (this is the case,

paradigmatically, of so-called “diffuse” interests, where by definition it is difficult to

identify the direct beneficiaries). This is why, paradoxically, we have problems of

noncompliance at both ends of the spectrum.

The problem is exacerbated in test case litigation or in contexts with a strong norm

of precedent. Here, the direct beneficiary may be a single individual, but the target fully

expects that the cost of compliance will go well beyond that plaintiff. Unless the proponents

20
are able and willing to mobilize on behalf of the entire affected community, one would

expect a great deal of resistance on the part of the target. This seems to be at least part of

what is going on in the reproductive rights cases (Cabal and Phillips, this volume).

Whenever the case only directly involves a small number of individual plaintiffs but the

goal is structural reform, as in Tysiąc v. Poland, compliance is more difficult. For purposes

of compliance and in calculating the level of organization that will be needed even in the

event of a positive judgment, therefore, proponents need to treat these cases as collective

cases, regardless of who the named plaintiffs are. When the proponents in international

fora do not have a strong organizational base in the target country, it seems unlikely that

any real change will take place, even if the named plaintiffs obtain their individual

remedies.

Indeed the one variable that comes up in nearly all the chapters is one that critically

affects political costs by solving the collective action problem: The organizational capacity

of the proponents. If there is unanimity among the authors in this volume on any one issue,

it is on this. Thus the variation across US states in compliance with education rights

litigation is largely a function of the capacity of the proponents to sustain political pressure

over time: Litigation without broader social movements, as in Texas, is not unhelpful, but

does not lead to major changes, while litigation campaigns that are supported primarily by

professional organizers can turn rulings into legislated policy, as in New York; and

campaigns that can count on deep-rooted and long-lasting political campaigns can lead to

the most significant change, as in Kentucky (Shanor and Albisa, this volume). The primary

variable to explain the varying degrees of compliance with housing rulings in South Africa

is organizational – well-organized coordinated groups, with strong leadership and staying

21
power secure the greatest benefits from their wins in the courtroom (Langford and

Kahanovitz, this volume). Cabal and Phillips (this volume) argue that, in the context of

reproductive rights cases from international courts, “national level partners [can play] a

significant role in mobilizing public attention to these issues through strategic use of the

media, coalition-building, and other awareness-raising strategies.”

Another proposed solution to the problem of noncompliance can also be seen as an

aid to the proponents in imposing political costs. Many advocates and some courts have

decided that one way to ensure compliance is to maintain jurisdiction and monitor

performance. Rodriguez-Garavito, Morales et al., Porter, Langford and Kahanovitz,

Dobrushi and Alexandridis, and Cabal and Phillips all describe some experiences with

continuing supervision by the adjudicatory body. When this works – in Colombia,

Argentina, Canada, and South Africa, for example – it is because the affected groups were

able to use the process as a focal point and platform for continued organized political

activity. Thus, in Colombia, the monitoring phase allows the representatives of the affected

parties to develop information, produce proposals (and ultimately solutions) that are most

likely to succeed, while allowing a periodic reexamination of compliance and publicity and

the imposition of costs for delays and failures to comply. And after the Doucet-Boudreau

decision in Canada, “the claimant communities relied on the reporting sessions as

democratic accountability mechanisms to ensure the timely implementation of their

fundamental rights, such that the judicial remedy operated to enhance democratic

accountability” (Porter, this volume).

When continued monitoring failed, most notably in the Roma cases, it is because the

monitoring entity was weak if not complicit, and thus the affected community was unable

22
to create political opportunities out of a supervised compliance process. The European

Committee of Social Rights found a violation of Roma housing rights on the part of Greece.

The Council of Ministers, which is supposed to be the monitoring/implementing entity for

the ECSR, failed to take any real action to follow up on the ruling, and Greece consequently

failed to make any real changes to its policies beyond repealing the most offensive of the

regulations in question (Dobrushi and Alexandridis, this volume). Continued monitoring

also failed in some instances in South Africa, when the affected community lacked the

organizational resources to capitalize on continued court involvement in their plight

(Langford and Kahanovitz, this volume). On the other hand, in Canada it was the court’s

continued supervision which itself seemed to trigger some resistance (Porter, this volume).

It seems likely, therefore, that continued compliance monitoring by a court would work

best for proponents with some organizational capacity, in a political context in which it is

possible that politicians could suffer costs for failing to attend to the needs identified in the

litigation.

Plenty of studies and theories of enforcement place the political costs of

noncompliance at the center of the analysis (Weingast 1997; Vanberg 2001; Carrubba

2009; Staton 2010). But the variety of cases and claimants in this volume suggest that

politicians can pay dearly for compliance as well. The southern politicians in the United

States who feared to comply with Brown v. Board of Education knew this. This is what

motivated the municipal authorities of Dobšiná to backtrack on their proposed

accommodation of Roma demands for housing, as described by Dobrushi and Alexandridis.

Friendly settlement agreements between Mexico and the Interamerican Commission on

Human Rights that were seen as enhancing abortion rights led to a backlash in several

23
states in that country, as politicians sought to capitalize on opposition to the agreement

and to a Mexican Supreme Court decision approving the decriminalization of abortion in

Mexico City (Cabal and Phillips, this volume). Depending on the issue, then, a deeply

unpopular ruling or a directive from an easily vilified court can lead political leaders to

conclude that there are net gains to be earned from flamboyant noncompliance.

14.2 Costs to Whom?

Thus far, for simplicity, I have proceeded as if all targets are exposed to more or less the

same costs. In reality, the first task is to determine on whom the burden of compliance will

fall, and to identify the sorts of costs to which they are susceptible, from the three

categories identified. In general, in ESCR cases, we can find four sorts of targets of litigation.

Scholars often overlook the fact that many targets are private commercial enterprises (in

our survey of health and education litigation across the developing world, for example, the

defendants included pharmaceutical companies, mining companies, individual physicians,

teachers, unions, private school administrators, soft drink bottling companies, public

transportation enterprises and more)(Gauri and Brinks 2008). In many cases, however,

litigation targets elected politicians. To take just three examples, this is true in Colombia,

when the courts required the legislature to find solutions to an unconstitutional state of

affairs; in Costa Rica, when legislation was necessary to formalize the outcome of gender

equality decisions; and in the Roma cases in which Greek or Slovak officials had to legislate

new housing policies. The group that is perhaps the paradigmatic defendant in these cases

is made up of bureaucrats who are responsible for implementing government programs.

24
Occasionally, there is a fourth group, judges who must apply the standards set forth in

human rights rulings, for example, when victims of rape in Mexico seek permission to have

an abortion. Each of these groups is subject to different sorts of costs, and poses special

challenges for compliance.

In the chapters in this book the majority of the targets are public officials, and many

but by no means all of these are bureaucrats. When the cases are politically important and

involve deeply contested issues, it is safe to assume that these bureaucrats respond to the

same dynamics that would move their more politically sensitive superiors. The housing

cases in South Africa, the education cases in the United States, the Roma cases in Greece or

Slovakia can likely be analyzed as though elected officials were making the key compliance

decisions. In fact, sometimes the volume of litigation, or the scandal of repeated

noncompliance, is such that policymakers may make a global compliance/noncompliance

decision, even if no individual case rises to a level that would warrant attention at the

highest levels of the political sphere. In many cases, then, we may consider that bureaucrats

and politicians are subject to similar incentives.

Sometimes, however, the decision truly is made by a faceless, nameless bureaucrat

who simply has to decide whether to attend to something ordered by a court, or to

whatever else happens to land on her desk at about the same time. This is clearest in the

Costa Rican, Colombian or Brazilian health cases, which simply require a bureaucrat to

provide a health-related service or good of a particular type or to a particular individual or

group. In Argentina as well, the targets of much of the litigation have been mid-level

bureaucrats who make routine decisions about the allocation of health or education

services to the shantytowns around the capital. These cases have slightly more salience, but

25
only after the proponents mobilize to make it happen. In Canada, the decisions that “read

in” groups into existing policies, or that require local agents to allow homeless people to

erect shelters in public spaces, also target bureaucrats.

Epp (2009) also suggests the key players in the United States and the United

Kingdom are often bureaucrats who have different interests than elected officials. For Epp,

it is more the embarrassment of a negative finding than the actual financial impact of

liability that is at work in motivating bureaucrats. It is not clear whether this is what is at

work in all the cases described in this book, but the key insight holds: Often it will be

important to consider what might motivate a bureaucrat to comply, independently of the

electoral politics of an issue. When the decisions are not particularly salient, compliance

theories and strategies have to focus on relatively faceless individuals, who respond very

remotely and imperfectly to political appointees or to politicians themselves and thus to

ordinary political costs. In these cases, the lack of a clear political strategy suggests a focus

on the things that matter to individual bureaucrats – budgets, personal liability, routines,

the prestige of their agency and the logic of their craft. In fact, there are times when these

more personalized strategies seem to work.

It may well be the apparently real threat of personal civil and criminal liability that

leads to such a high level of compliance on the part of the officials of the public health

system in Costa Rica or Brazil. Wilson’s chapter suggests that ordinary civil servants in

relatively more autonomous institutions are more likely to comply routinely than is the

personnel of the various ministries. Bureaucrats in these agencies are expected to simply

carry out their legal mandate, and likely are not particularly concerned whether the

26
mandate comes from the courts or from the legislature, so long as it does not disrupt the

operation of their agency.

Similarly, once the courts decide that a certain medication should be part of the

regular course of treatment for one plaintiff, public health bureaucrats in Brazil often

extend that ruling to similarly situated plaintiffs. Presumably, this is at least in part an

acknowledgment that similar patients should be treated similarly. Some of this respect for

the logic of the craft is also apparent in the HIV/AIDS litigation in South Africa, where the

proponents often found allies either within the public health bureaucracy or at the

policymaking level for the scientifically sound argument that HIV/AIDS should be treated

with Western medicines.

But the mechanisms for personalizing accountability that appear to work in Brazil

or Costa Rica do not work in Argentina, where the courts use them too timidly, and where

the targeted heads of agency experience such a high turnover that compliance can always

become the problem of a successor, who would then also have to be threatened with

personal liability, and who could in turn leave the problem to a successor. The high

turnover also means that individual administrators are insensitive to fines against the state

or agency itself. In these cases, then, it seems very little can compel compliance. To make

the obvious explicit, the professionalism and responsibility of bureaucrats can only be

counted on where there are professionalized and responsible bureaucracies.

Moreover, it is clear that the logic of equality is not universally applied even within

the same government. Retiring employees in Costa Rica are often forced to re-litigate the

same issues the Constitutional Court has decided thousands of times before, because the

agencies continue to deny them judicially recognized rights to severance and pension pay,

27
even though their peers in public health seem to rather readily universalize individual

court decisions. The Wilson and Rodriguez chapter does not offer enough information to

ascertain exactly why there might be such a difference between the way health and

employment cases are treated in Costa Rica. We can speculate, however, that, while by

1997, the year of the health care order, it was standard medical practice to treat HIV

positive people with antiretrovirals, there is no similar “human resources consensus”

supporting a certain level of severance and retirement benefits. In short, for reasons

traceable to what I have called normative costs, professional bureaucrats are more likely to

voluntarily comply when the judgment embodies conclusions that are seen as valid and

sound, or even compelling, by the professionals in question.

Finally, it is clear that the impact of a decision on an agency’s budget and its plans is

important to many bureaucratic defendants. Many of the arguments presented by these

defendants in court hinge on the fact that the demands are too costly or would exhaust

budgets that contemplate something else altogether. One of the ways in which courts and

litigants have tried to address this concern (as well as a concern about the limitations of

courts’ remedial powers and separation of powers) is through dialogical and open-ended

rulings that set goals but do not prescribe specific means. It seems plausible, and some of

the case studies support the idea, that an agency that has had a hand in designing the

solution to the problem identified in the litigation will be more likely to implement that

solution rather than resist it. Çali and Koch describe such a deliberative process that leads

to greater compliance in the case of ECHR judgments. Similarly, Shanor and Albisa show

how education reform efforts are more likely to succeed when courts destabilize the status

quo (as suggested by Sabel and Simon 2004) but give local officials a role in designing the

28
reforms. As discussed, however, it seems clear that this works only in the context of a

strongly positive normative or political balance in favor of the ultimate goal of the

litigation.

The experiences captured in this book suggest that a remarkably high percentage of

claims will have to be satisfied by elected legislators themselves. Thus the ECHR judgments

and the education reforms in the United States required legislated changes. Similarly, the

IDP case described by Rodríguez Garavito, the Costa Rican gender equality decisions

identified by Wilson and Rodriguez, the decisions of the African Commission on Human and

Peoples’ Rights, the Roma/Travelers’ housing measures and the reproductive rights

remedies secured through the Interamerican Commission on Human Rights all require a

legislated response.

In all these cases we see that when the order targets a legislative body, the

compliance issue is exacerbated – legislatures have difficulties enough passing legislation

initiated from within, let alone responding to an order from without. Thus victims of

reproductive rights violations receive individual remedies with some reliability, but

legislated structural responses are rare if not nonexistent, as shown in the Cabal and

Phillips chapter. While individual bureaucrats in decentralized institutions respond quite

readily in Costa Rica, the elected officials and their appointees in the various ministries do

not. Even more clearly, the description of the gender equality litigation in Costa Rica, by

Wilson and Rodriguez, shows bureaucrats complying with individual decisions but

legislators failing to respond for years. Of all the orders in this book, the ones directed at

elected policymakers seem to have the worst track record for compliance.

29
 The reason for this emerges from the balance of costs analysis. On the

noncompliance side, the cost to any individual legislator of failing to legislate in response to

the decision of a foreign or domestic court is surely minimal. This is all the more true when

the decision might be unpopular with the legislator’s specific constituency. Legislators are

not subject to fines, or personal civil or criminal liability, for failing to legislate in response

to a court order. The multiplicity of potentially responsible parties itself diffuses

responsibility. In the absence of focused, sustained and intense mobilization, the odds that

any single member of a legislature would suffer electorally for failing to comply with a

decision – even if it is a popular one – is negligible.

Moreover, on the cost of compliance side, elected officials incur many normative and

ideological costs that bureaucrats do not. Whereas bureaucrats in general carry out other

people’s mandates, and so may not have much personally invested in making policy on an

issue, legislators have a vested interest in retaining control over policymaking – this is

what they do. Legislators in general may be more sensitive to the loss of power implied

when courts enter the policymaking arena, appearing to exceed the bounds of traditional

judicial roles in a separation of powers arrangement (cf. Ferraz, and Çali and Koch, this

volume). Legislators in more nationalistic countries are especially wary of rulings that

favor minority groups, and European legislators in general have a strong preference for

policymaking and decisions by their own national courts and legislatures (Çali and Koch,

this volume). Indeed, the high normative cost of rulings in favor of stigmatized groups such

as the Roma or unpopular rights like abortion rights provide entrepreneurial politicians in

Slovakia, Greece, France, Romania and Mexico the opportunity to make political hay out of

resisting a court order.

30
 In short, it appears that in most cases the presence or absence of a court decision

does not alter the balance of costs for legislators by very much, and compliance is, in

general, less likely when the judgment requires legislative coordination and intervention. If

anything, once we factor in the normative costs of compliance, the prospect of a negative

balance seems quite likely, so it is not surprising that so many judgments directed at

politicians produce few if any real world effects. The opposite is true, of course, when a

judgment simply modifies the legislation by fiat, as when a statute is declared

unconstitutional. At times, the courts themselves can legislate affirmatively by modifying

the legislation themselves – thus Canadian and Colombian courts “read in” changes to

legislation. Other judgments simply veto or redact offending legislation, and courts can

sometimes re-interpret existing legislation to meet demands. In all these cases, it is the

legislative body that must bear the costs of coordinating to overcome the court’s ruling, and

the record of success is much higher.

The balance seems to shift for legislators when they consider that building up or

complying with the court is itself part of a legislature’s interest. Thus, Çali and Koch argue,

the national legislatures of established EU states tend to comply with ECHR judgments

because they perceive it to be in their interest to set an example for less established states.

This is especially likely when the “deliberative” nature of the order reduces the loss of

sovereignty costs by permitting them to design the specifics of the policy. In turn, the

legislatures of less established or aspiring EU states comply because they perceive it to be

in their national interest to show that they are or could be good citizens of the EU, even at

the expense of losing on the specific policy issue. There may be instances, in short, when

31
broader interests render legislators more sensitive to the orders of particular tribunals

than bureaucrats would be.

One lesson from these examples is that, while for bureaucrats the costs and benefits

are largely circumscribed to their personal interests and those of the agency, and perhaps

the merits of case itself, for elected officials the particulars of the case may well be

subordinated to broader concerns. Strategic litigators would do well to consider these

broader concerns, and the greater difficulty of securing compliance from legislators, when

deciding how to frame the litigation, where to bring it and what sort of remedy to request.

But what about judgments that target other judges – whether lower court judges

within the same system, or national judges who must comply with the rulings of

international courts? In many Civil Law systems, lower court judges consider it an affront

to their independence to submit to the rulings of even a superior court, unless it is in the

context of a direct appeal. Even so, when a court order is directed at an inferior court, the

problems of compliance are minimized. It is possible that lower courts will dissent, but

unlikely that they would succeed in defying a direct order for long – in most if not all

systems, judicial superiors hold many tools to bring a recalcitrant lower court judge into

compliance. This is true even in the many Civil Law systems that expressly deny any erga

omnes effects of high court decisions. Clearly, in these cases, the financial and political costs

of compliance are relatively minimal – although there may be high ideological costs – while

the cost of noncompliance is very real, and measured in terms of careers, assignments, pay,

loss of collegiality and the like.

The situation of international tribunals addressing national courts is more

complicated. In many cases the local tribunals appear to be willing to ally themselves with

32
their supranational peers – the Argentine courts have repeatedly adopted the

jurisprudence of the Interamerican Court, and European courts have often done the same.

Occasionally, however, domestic courts resist. The Brazilian courts have followed the lead

of their elected officials in resisting the rulings of the Interamerican Court in the Belo

Monte dam case, and in the case of amnesties for past human rights violations. As noted by

Çali and Koch, this seems to be a function of the domestic politics of each country, and the

relative weight assigned to, on the one hand, the political costs potentially imposed by an

international audience, and on the other, the normative cost of ruling contrary to an

important domestic policy decision, at the behest of a “foreign” court. In the case of the

Brazilian courts in particular, it seems likely that the costs are more ideological/normative

than actual political costs, since these courts are quite well insulated from politics, and not

at all reluctant to rule on behalf of ESCR, at least in individual cases (Ferraz, this volume).

The volume unfortunately includes no examples of private targets from which to

derive conclusions, but it seems likely that a similar cost-benefit calculus animates the

compliance decisions of market actors. Producers and retailers are sensitive to the threat of

boycotts, the loss of a brand’s good will or the possibility of third-party punishment

through regulation or prosecution. Moreover, the basic mechanisms – concerted action,

sustained mobilization and publicity, engagement with state enforcement mechanisms are

quite similar. And the resources proponents must bring to bear to raise the costs of

noncompliance should be approximately the same. As a result, we would expect to find

similar dynamics and concerns at work in the enforcement of judgments against private

actors, as we see against market actors.

33
14.3 Strategies

Clearly, there are strategic decisions that have a global effect on the cost of compliance. We

note in our work (Gauri and Brinks 2008), for example, that individual cases are easier to

win than huge collective cases. But the record of compliance is more mixed at both ends of

the numeric spectrum, as we have seen. As discussed, this is because, in most cases, the

budgetary costs of compliance are much lower in individual cases, but so is the political

cost of noncompliance. Absent exceptional circumstances, dragging bureaucratic feet in

response to an individual court order awarding a particular medication to a particular

plaintiff is unlikely to generate headlines and demonstrations. It is even unlikely to draw

individual sanctions, unless the litigant has the support of well qualified and resourced

attorneys. Conversely, complex collective cases will draw more sustained attention from

advocates and publics, but are typically much more expensive for the target and thus justify

much greater resistance.

One way to affect the political cost of compliance, then, might be to begin with

individual cases until a right is well established and accepted by the public – that is, to use

compliance in low-stakes cases to change the valence of an issue. One can use narrow,

targeted orders and the threat of small court-ordered penalties aimed at lower-level

bureaucrats to raise the cost of noncompliance in the initial cases. Then, once the right is

broadly accepted, and the discourse around a topic has changed (see Rodriguez-Garavito,

this volume) one can attempt a more important collective case with a far higher budgetary

cost, trusting that publicly defying a well-established right in an important instance can

generate much higher political costs, especially if it is coupled with political mobilization.

34
 Similarly, one can reduce the normative costs of an order by engaging in a more

dialogical process during the course of the litigation. If the target of the litigation is

involved in the process of finding a solution to the problem, it is more likely that the

ultimate order incorporating that solution will, regardless of its actual budgetary impact,

find people willing to carry it out. The trade off may be a remedy that is less comprehensive

or absolute – or even less transparent, which can detract from compliance – than what was

originally sought, but it may be well worth it, in exchange for the willing compliance of the

litigation’s target. One can also reduce the financial cost of an order by finding ways to

insert the requisite response in the existing state structure – seek remedies that can be met

out of existing state structures, and the budgetary and normative costs of compliance

should be reduced.

Finally, there are some things proponents themselves can do, with the cooperation

of the courts, to increase the costs of noncompliance. They can ask for intermediate

measures, prior to a final judgment, that change the politics and valence of an issue. In

some of the cases discussed in this book, proponents have secured court orders that

generate new information about the plight of the victims of a human rights violation. In

Argentina, the court has ordered epidemiological studies and other surveys of the

populations affected by the horrendous pollution in the Riachuelo basin. In Colombia, the

court has done the same with the millions of internally displaced people. In both cases,

public hearings generate attention and press coverage. Periodic reports by the targets of

litigation provide opportunities to highlight just how far short they are still falling. One can

litigate explicitly to generate the conditions that make it possible to increase the costs of

noncompliance, producing information and opportunities that did not exist before.

35
14.4 Conclusion

The few more theoretical works done so far on compliance have tended to focus primarily

on the public response to judicial orders and the consequent political costs of

noncompliance (Vanberg 2001; Staton 2004). Others might add a consideration of the

salience of the issue to the other branches of government (this is akin to what I would call

the normative costs of compliance) (Epstein et al. 2001). These works do not, however, go

into any detail on the strategies civil society might implement to affect the compliance cost-

benefit analysis, nor do they examine systematically the relative importance of each factor.

Here I have tried to draw lessons from the academic literature and the chapters in this

volume, with an eye to exploring what litigants can do to raise the cost of noncompliance or

lower the cost of compliance without compromising on their goals.

Compliance, this volume makes clear, is often a greater challenge than winning a

judgment. The academic literature has made some important contributions but we still

know too little about what will produce compliance in particular cases. The experiences

collected in this book offer an important cross-section of experiences with compliance

around the globe. They add invaluable information, allow us to derive some hypotheses,

and prompt even more questions for further research. In addition, they offer advocates

some important lessons and examples that might help in devising new strategies and in

shaping new litigation. As these contributions make clear, ESCR litigation is changing the

face of politics around the world, and better understanding its effects, including the

likelihood of compliance, is the new challenge for advocates and academics alike.

36
 Table 14.1
Summary of cases, variables and balance of costs
Case Key variables Balance of costs analysis Compliance
ECHR judgments Domestic versus The deliberative process of High
(Çali and Koch) international courts; compliance allows the target to
deliberative define the means in such a way
enforcement process; as to reduce the normative and
general support for financial cost of complying with a
human rights in the “foreign” court order. Positive
population of target affect for human rights decisions
states. means target is looking for ways
to comply with minimum cost,
rather than loopholes to avoid
substantial compliance.
Perceived cost of setting bad
example for new states leads
established EU states to comply;
desire to belong leads
new/aspiring EU states to
comply
Colombian Dialogic activism: The monitoring phase allows High
Constitutional strong rights, affected parties to develop
Court IDP case moderate remedies, information, proposals, and
(Rodriguez- and continued ultimately solutions that are
Garavito) monitoring most effective, while allowing a
public reexamination of
compliance and publicity and
imposition of costs for failure to
comply
Costa Rica Sala IV Personal liability for Individual bureaucrats balance High
decisions in noncompliance; personal cost of noncompliance, (conditional
individual cases immediacy of the with state-borne costs of on
(Wilson and order; nature of the compliance monitoring)
Rodriguez) target agency – the
closer the agency is to
power/politics, the
lower the level of
compliance
Costa Rica public Organized workers, Well-organized public unions can High
sector right to clear orders impose costs for noncompliance
strike
(Wilson and
Rodriguez)
Gender equality Well-placed, Compliance by bureaucrats (low High and low,
(Wilson and organized plaintiffs cost) was immediate; legislative depending on
Rodriguez) and interested action to formalize the outcome target
persons; legislators in legislation more costly, and
versus bureaucrats as took years
targets

37
Medical services Unpopular plaintiffs; Original 1992 case treated as Initially low,
for patients living nature of the agency individual – no expansive then high
with AIDS in Costa compliance. The 1997 case
Rica treated as universal – high
(Wilson and compliance despite much greater
Rodriguez) cost (although the cost of
treatment had dropped quite
dramatically between the two
decisions), but also larger
constituency. The 1997 case is
hard to explain. It benefits more
individuals, so compliance could
be seen as driven by their
political capital, but as late as
1998, the government was
denying gay activists the right to
organize, and making public
antigay statements. The group
seems to have had more support
from legal elites, although not
from the general public, by 1997
Argentina: Number, organization Focus in this chapter is still on the Individual
medium N cases, (presence of CSOs) judge. But it’s clear that there is a and medium
affecting the and dispersion of difference between the impact of N cases are
proponents, together the litigants in the medium N cases,
villas; structural usually
with the ability to who are said to be present in the
cases, affecting all complied
claim credit for courtroom and able to identify
incarcerated with;
improvements on the exactly the consequences of the
people; all people Structural
other side. Magnitude failure to comply
living in the cases only if
Riachuelo of the challenge. the court acts
watershed; all Threats of personal affirmatively
disabled persons fines and criminal
using a certain charges (not
railroad successful – possibly
(Morales, Sigal because of their timid
and Rossi) and inefficient use).
Fines on the state are
useless in this
context.
Brazil right to Individual versus Separation of powers concerns Compliance
health cases collective cases inhibit judges from issuing in individual
(Ferraz) rulings to enforce the right to cases;
health, possibly anticipating “noncomplia
resistance nce” in
collective
ones

38
Canadian Nature of the order: “Reading in” groups is easy – High in less
structural orders directed at the extend existing programs to a structural
remedies legal framework that new group, eliminate cases.
(Porter) are entirely in the discriminatory exclusions;
control of the courts “negative rights” reading of ESCR
are easier versus – allow the homeless to build
orders directed at shelters on public property. In
structural features of more structural decisions (e.g.,
the state, which are Doucet-Boudreau), he says “The
more difficult claimant communities relied on
the reporting sessions as
democratic accountability
mechanisms to ensure the timely
implementation of their
fundamental rights, such that the
judicial remedy operated to
enhance democratic
accountability”
N.A.P.E. Lobbying campaign In the context of scarcity, High
multimillion- by women’s and labor opportunity costs led to
dollar award for groups; fiscal context nonpayment. Once there was
women against more money, and strong political
Newfoundland pressure, payment
(Porter)

US education Presence of broader Open-ended rulings that Mixed

litigation (state social movement are destabilize the status quo but compliance
level) helpful in some ways; allow the legislature to re-create as a function
(Shanor and nature of the political the school system, coupled with a of
Albisa) campaign (e.g., deep political movement, leads to mobilization
professional significant school reform in some and
organizers versus cases. Some gains short lived, as opportunity
grassroots). Fiscal politics faded and fiscal crises costs
crisis arose
South African Community In contrast to US education cases, Mixed
housing organization; here compliance improved over compliance
(Langford and stigmatized plaintiffs time – a function of continuing depending on
Kahanovitz) political mobilization. But when the nature of
there is a stigmatized or poorly group and
organized group, less compliance CSO presence

African Comm’n Factors that do not Political costs seem to be driving Low/no
on Human and seem to matter: the decision to comply. Thus a compliance
Peoples’ Rights Immediacy, clarity of change in government reduces except in
(Viljoen) decision, nature of the political cost of cases of
right, massive acknowledging the commission political
violations. Factors of a violation; democracy makes change
that do seem to it easier to impose costs, and
matter: stable, free, more organized proponents
democracy, NGO succeed more often
involvement; size of
proponent group

39
 (single or small group
of complainants less
likely to produce
compliance),
violation by prior
government rather
than current one

Roma/Travelers Stigmatized group; States pay damages, but don’t Low

cases versus supervision by address the underlying problem
Slovakia, Greece, adjudicatory body by complying with policy because
France, Romania, (ECSR) didn’t work of opposition to measures that
and the United are seen as favorable to the
Kingdom Roma. Lack of organization and
(Dobrushi and political resources. Resistance is
Alexandridis) not really based on financial
costs, since much compliance
could be based on EU funds, or
allowing them self help, so the
key seems to be normative costs:
“the real operative reason behind
this persisting failure is none
other than the social
unpopularity of and deeply
entrenched prejudice against the
Roma and Travellers in virtually
all the Council of Europe member
States”
Reproductive Individual Key factor is ability to impose Compliance
rights – forced reparations versus political costs: when a single NGO primarily
and involuntary structural remedies; uses a couple of individual with
sterilization; organizational plaintiffs to pursue structural individual
abortion rights; capacity of reforms, compliance is more awards, not
maternal proponents; difficult. Mobilizing media helps: structural
mortality continuing oversight “National level partners have ones
(Cabal and played a significant role in
Phillips) mobilising public attention to
these issues through strategic
use of the media, coalition-
building, and other awareness
raising strategies,” especially
when there is some ongoing
oversight. But negative affect
makes it easy for politicians to
defy the court, sometimes
leading to backlash campaigns

40
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