resources to use it (H 3). While the first two institutional variables are constant within the EU,
access and resources vary significantly across and within member states.
In order to develop the argument, the article proceeds in the following steps. I will start
with formulating some theoretical expectations about when EU legal institutions are likely to
increase opportunities for participation through law enforcement, rights claiming and expanded
protection. Drawing on the social movement literature and domestic structure approaches, I will
argue that international courts are only likely to increase opportunities for participation if the
latter are capable of exploiting the legal opportunities offered to them. If, by contrast, individuals
lack court access and the resources necessary for using it (person power, expertise, money), they
should not be expected to gain broader participation in legal and political processes. I will use the
enforcement of EU environmental law in Germany and Spain to depict the paradox that may arise
from EU legal institutions increasing opportunities for participation: the empowerment of the
already powerful. I will show that the EU enforcement system is most likely to empower those
actors that do already actively participate in domestic and European politics. This paradox results
in a major dilemma for the enforcement of European Law. Non-compliance is the highest in
member states where societal actors are the weakest, and vice versa. The article concludes with a
summary of the main findings and discusses their implications for the potential of expanding
judicial power in the EU and at the international level to bring more democracy to international
politics.
L
AW
E
NFORCEMENT
AND
P
ARTICIPATION
With international law firmly rooted in the principle of state sovereignty, it could neither
be adopted nor enforced against the will of states. Yet, the legalization of international politics has
started to perforate state sovereignty. International law has been increasingly penetrating national
law (Chayes, Chayes Handler, 1995; Koh, 1997). With an ever growing body of international
norms and rules, non-majoritiarian organizations have been put in charge of settling disputes on
the interpretation and application of international norms and rules at the domestic level (see Alter
in this Issue). Moreover, international courts and legal dispute-settlement bodies have given
access to individuals who want to press charges against their governments if the latter deny them
their international rights (ibid.).
The vertical integration of the international and national legal systems creates new
opportunities for participation through law enforcement, rights claiming and expanded protection.
3
Convention