Introduction
Most states comply with most international law most of the time (Koh, 1997). Yet, non-
compliance still occurs. Unlike states, international organizations have no means to force states
into compliance with their norms and rules. However, states have deferred monitoring and
adjudicating powers to non-majoritarian institutions, such as the European Commission or the
dispute-settlement panels of the World Trade Organization. Moreover, with the progressing
legalization of international politics, courts rather than expert or administrative bodies are
increasingly assigned the task of ensuring compliance with international law (Keleman, 2001;
Cichowski, 2001, Börzel, 2003a, see also Alter in this Issue). Many authors, including some of
the contributors to this volume, see expanded judicial power as a chance to improve the prospects
for democracy in world politics (cf. Cichowski, Stone Sweet, 2003). Using the case of legal
compliance in the European Union, this article presents some more sceptical reflections on the
proliferation of international courts and its effects on democratic governance.
The European Union is a most likely case for courts to enhance democratic participation in
international governance. First, the fragmentation of political authority in the EU has led to
increasing power of non-majoritarian organizations, such as the European Commission and the
European Court of Justice, to ensure the enforcement of the more than 10.000 pieces of
European legislation (Tallberg, 2003; Börzel, 2003a). Second, EU rules and regulations, such as
the supremacy of European Law and its direct effect, provide citizens, firms and societal groups
with the legal opportunity to plead in national courts for the enforcement of European Law
(Conant, 2002; Cichowski 2006). Thus, two of the three institutional variables, which the
introduction of this Special Issue hypothesizes to increase individual participation in supranational
and international governance, clearly hold. The literature indeed presents ample evidence of how
individuals and groups have successfully employed increased opportunities for EU law
enforcement and rights claiming (Harlow, Rawlings, 1992; Burley, Mattli, 1993; Alter, 2000;
Börzel, 2003a; Cichowski, 2006; Conant, 2002). But research on litigation and participation in
the EU tends to suffer from a selection bias on the dependent variable. Cases in which citizens and
groups fail to bring claims against their governments for non-compliance with international law
are hardly considered. In concurrence with hypothesis 3 of the introduction, I will argue in this
article that supranational rules and regulations (H 1) and non-majoritarian organizations (H 2)
only increase opportunities for participation through law enforcement, rights claiming and
expanded protection for those individuals and groups who possess court access and the necessary
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Convention