Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints

Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints

Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints

Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints

Synopsis

In Strategies of Compliance with the European Court of Human Rights, Andreas von Staden looks at the nature of human rights challenges in two enduring liberal democracies--Germany and the United Kingdom. Employing an ambitious data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, von Staden presents a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, he details how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices.

Framing his analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, von Staden argues that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same time--in other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.

Excerpt

During the last two decades, the system of human rights protection set up under the European Convention on Human Rights (ECHR, or the “Convention”), with the European Court of Human Rights (ECtHR, or the “Court”)— frequently heralded as being one of the most effective international courts in existence —at its center, has come under stress. One source of that stress has been the rapid growth of the number of individual applications lodged since the late 1990s, which have vastly increased the workload of the Court. While the resources allocated to the Court from among the Council of Europe’s budget also increased, they did so at a disproportionately lower rate that proved insufficient to process the mounting number of applications in a timely manner, resulting in a massive backlog of pending cases that at its peak exceeded 150,000 applications. Several factors interacted to produce this development, among them the doubling of the number of states party to the echr as part of the enlargement of the Council of Europe (COE)—the ECtHR’s parent organization—following the end of the Cold War, direct access to the Court after the 1998 institutional reforms under Protocol No. 11, certain jurisprudential developments that made applying to Strasbourg appear attractive to potential litigants, as well as the very mundane fact that it had simply become more widely and better known among potential beneficiaries of rights litigation and their lawyers in the member states. To reduce the backlog, further institutional reforms were initiated with Protocol No. 14 which, inter alia, tightened admissibility requirements and provided for inadmissibility decisions by single-judge formations. These reforms contributed to reducing the number of applications pending before a judicial formation to 64,850 at the end of 2015.

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