Private rights of action to enforce rules of international regimes

This dissertation examines the costs and benefits of allowing private parties to bring claims---private rights of action---against states before an international forum to enforce violations of international law. In doing so, the dissertation engages in comparative institutional analysis, comparing private rights of action with two other enforcement mechanisms, regulatory enforcement and state-to-state dispute resolution. The project focuses on private rights of action in the context of environmental, human rights, and trade regimes and draws from multiple disciplines, including law, economic analysis, and international relations.

Perhaps the greatest potential benefit of private rights of action is enhanced compliance with international rules, which could help realize greater benefits from cooperation. Private rights of action could also serve to counteract the tendency of states to engage in tit-for-tat relaxation of the enforcement of rules. In addition, private rights of action could act as a commitment device for states by placing enforcement in the hands of a third party.

The increased constraint imposed on states by private rights of action, however, could lead states to resist compliance with regime rules, or to resist joining a regime in the first place. Various costs also could result from the reduced discretion of a more legalized enforcement mechanism. For example, in some situations it might be more effective in achieving compliance to take a cooperative approach, rather than an adversarial approach. Private rights of action could give private parties more of a law-making role in international society, to the extent that international litigation performs a law-making function. The existence of these and other potential costs suggests that private rights of action are not unquestionably desirable and, as a prescriptive matter, suggests caution in adding them to international enforcement mechanisms. Nevertheless, the balance of costs and benefits of any particular enforcement mechanism will depend on its institutional context.