...few scholars have evaluated whether such strategies are effective (Keck and Strother 2016, 3; but see Gauri, Staton and Cullell 2015; Staton and Romero 2019). ...we know that courts act ...strategically to promote compliance, but we do not yet know the conditions under which such strategies may succeed. ...the Supreme Court of the United States held in its 1955 Brown v. Board of Education II ruling that school districts were to be desegregated ‘with all deliberate speed’. If responding authorities act in good faith, it may therefore be beneficial to grant them some leeway over how judgments are implemented. ...if remedial indications are unsuccessful at facilitating prompt compliance, the increased visibility of the compliance problem may cause additional damage to the Court's reputation and desensitize important audiences to non-compliance (Staton and Vanberg 2008). ...the transition to the new remedial approach has been relatively cautious and judges have disagreed about their legal competence to indicate remedies (see, for example, the dissenting opinions in the 2017 Moreira Ferreira (No. 2) v. Portugal judgment). ...scholars and judges have noted that there is a ‘haphazard’ aspect to when remedial indications are provided (Donald and Speck 2019, 114).
Do renewable terms compromise judicial independence? Scholars of various courts have demonstrated relationships between judges’ voting patterns and the interests of actors responsible for their ...(re)appointment. However, it is typically unclear whether such relationships are (at least partially) explained by judges acting strategically to achieve reappointment or if they are (fully) attributable to selection effects. I exploit a 2010 reform of the European Court of Human Rights (ECtHR) to estimate the causal effect of removing reappointment opportunities on judges’ independence. The ECtHR bench consists of one judge from each member state, and judges sit ex officio on cases involving their nominating state. Prior to 2010, terms were renewable. Judges seeking reappointment were therefore incentivized to favor their nominating states. In 2010, the terms were made nonrenewable, with immediate effect for judges on the court. I show that removing reappointment opportunities significantly reduced judges’ tendency to favor their nominating states.
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DOBA, IZUM, KILJ, NUK, ODKLJ, PILJ, PNG, SAZU, SIK, UILJ, UKNU, UL, UM, UPUK
Abstract
How does backlash from consolidated democracies affect the behavior of liberal international institutions? We argue that liberal international institutions have incentives to appease their ...democratic critics. Liberal institutions rely on democratic support for their continued effectiveness and can accommodate democratic critics at a lower legitimacy cost than non-democratic challengers. We examine this theory in the context of the European Court of Human Rights using a new dataset of rulings until 2019 and a coding of government positions during multiple reform conferences. Combining matching and a difference-in-differences design, we find strong evidence that the Court exercises restraint towards consolidated democracies that have criticized the Court in multilateral reform conferences by rendering fewer violation judgments against these states. We find some evidence that governments have also recently appointed more deferential judges. The findings suggest that backlash can affect liberal international institutions even without membership exit.
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DOBA, IZUM, KILJ, NUK, ODKLJ, PILJ, PNG, SAZU, SIK, UILJ, UKNU, UL, UM, UPUK
We challenge the prevalent claim that courts can only influence policy by adjudicating disputes. Instead, we theorize the shadow effect of courts: policy makers preemptively altering policies in ...anticipation of possible judicial review. While American studies imply that preemptive reforms hinge on litigious interest groups pressuring policy makers who support judicial review, we advance a comparative theory that flips these presumptions. In less litigious and more hostile political contexts, policy makers may instead weaponize preemptive reforms to preclude bureaucratic conflicts from triggering judicial oversight and starve courts of the cases they need to build their authority. By allowing some preemptive judicial influence to resist direct judicial interference, recalcitrant policy makers demonstrate that shadow effects are not an unqualified good for courts. We illustrate our theory by tracing how a major welfare reform in Norway was triggered by a conflict within its Ministry of Labor and a government resistance campaign targeting a little-known international court.
The mutual dependence between courts and their compliance constituencies is a fundamental feature of judicial power. Actors whose rights and interests are reinforced by court decisions may use these ...as legal ammunitions while contributing to ensuring that court decisions are effectively implemented. We argue that judgments that contain dissenting opinions are less powerful in this regard, compared with unanimous decisions. The reason is that dissent reduces the perceived legal authority of the judgment. Using data from the international human rights judiciaries in Europe and the Americas, we provide evidence of a negative relationship between judicial dissent and compliance. Our findings have important implications for questions relating to the institutional design of courts, for courts’ ability to manage compliance problems, and for understanding the conditions for effective international judicial protection of human rights.
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NUK, OILJ, PRFLJ, SAZU, UKNU, UL, UM, UPUK
Legislative changes can be crucial for implementing human rights. This article investigates how the need for legislative changes influences compliance with European Court of Human Rights (ECtHR) ...judgments. I argue that the need for legislative changes might influence compliance politics in two ways. First, ECtHR interference with the will of elected parliaments is controversial in several European states. Such controversy might increase the risk of defiance of judgments requiring legislative changes. Second, the greater number of veto players needed to pass legislative is likely to delay compliance. Using original implementation data, I show that the need for legislative changes tends to delay compliance, but does not increase the risk of long-term defiance. The ECtHR's ability to eventually prompt legislative changes is not smaller than its ability to induce other reforms. I also find that delays associated with the need for legislative changes are greater in states with greater numbers of ideologically diverse veto players, in states with a proportional electoral system, and in states without domestic judicial review.
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What determines states’ ability to influence the contents of international institutions? Extant scholarship on international economic negotiations highlights the importance of political and economic ...capacity in negotiations. In this article, we argue that another structural source of negotiating power has been overlooked: bureaucratic capacity. Building on in-depth interviews with a large sample of international economic negotiators, we develop a theory of how differences in bureaucratic capacity can give states advantages in bilateral negotiations. We test our theory on a dataset of bilateral investment treaties. To measure preference attainment, we combine a unique repository of states’ public negotiating mandates called model treaties and the texts of finalized investment treaties to compute the verbatim distances between states’ stated preferences and the treaties they negotiate. We then show that states with greater bureaucratic capacity than their counterparts tend to achieve higher preference attainment in investment treaty negotiations. Our results have important implications for scholarship on international negotiations and for policy-makers engaged in investment policy reform.
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CEKLJ, EMUNI, FIS, FZAB, GEOZS, GIS, IJS, IMTLJ, KILJ, KISLJ, MFDPS, NLZOH, NUK, OILJ, PNG, SAZU, SBCE, SBJE, SBMB, SBNM, UKNU, UL, UM, UPUK, VKSCE, ZAGLJ
Enforcement and management scholars alike expect that countries participating in an international agreement will more likely achieve predetermined targets than nonparticipating countries will. The ...management school ascribes this expected association to a constraining effect of the treaty; the enforcement school ascribes it to a screening effect. If the latter conjecture is correct, the association between participation and target achievement should significantly weaken (or even vanish) when controlling for targets' ambition level and other confounding factors. We test this hypothesis on a new dataset comprising three protocols under the Convention on Long-Range Transboundary Air Pollution (CLRTAP). Our results suggest that the positive association between participation and target achievement is robust to controlling for confounding factors; hence, our data suggests that these CLRTAP protocols have indeed constrained participating states.
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GEOZS, IJS, IMTLJ, KILJ, KISLJ, NLZOH, NUK, OILJ, PNG, SAZU, SBCE, SBJE, UILJ, UL, UM, UPCLJ, UPUK, ZAGLJ, ZRSKP
Abstract
This article summarizes insights from political science and empirical legal scholarship concerning selection and appointment of adjudicators to permanent international courts (ICs). This ...scholarship suggests that designers of ICs face challenging trade-offs in balancing judicial independence and accountability, as well as in promoting descriptive representation and necessary qualifications on the bench. The article considers different institutional design features related to appointment procedures: representation, reappointment, screening procedures and procedures for removing judges. Representation is discussed in a series of sections considering full or selective representation, voting rules and geographic and gender quotas and aspirational targets. Throughout, we draw on data on 24 ICs to illustrate the different appointment procedures and institutional features.
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