Targeting compliance : prospective remedies in international law

Abstract

This article examines remedies awarded by international courts and tribunals with the aim of inducing substantive compliance rather than providing reparation for injury. Authors and courts have traditionally assumed that compliance is a matter for states and political bodies rather than adjudicators. Within the field of international trade law, however, a set of ‘prospective’ remedies has emerged, designed to create incentives for future compliance rather than to determine reparation for past injury. Prospective remedies, including control over compliance and authorizations for retaliation, have sometimes been considered to be unique to the General Agreement on Tariffs and Trade/World Trade Organization (WTO) system, and responsible for its ‘teeth’. On closer examination, however, there is little that is unique about the jurisdiction exercised by WTO adjudicators at the implementation stage. International courts may make, and have sometimes made, determinations with a prospective character, ensuring continued judicial oversight over disputes and providing prevailing parties with the option of adjudication as a means to press for compliance.