Wednesday 25 May 2011

The Court and Changes at the Domestic Level

What is the effect of the European Court's rulings on other countries than the one in the specific case at hand? An intriguing question not only of legal theory, but especially of practice. A political scientist and a legal scholar have joined forces to make some forays into answering this question. Laurence R. Helfer of the Duke University School of Law and Erik Voeten of Georgetown University's Edmund A. Walsh School of Foreign Service have posted a working paper on SSRN entitled 'Do European Court of Human Rights Judgments Promote Legal and Policy Change?'. The paper explores the more general question by looking at the follow-up of the Court's LGBT case-law. This is the abstract:

Do the rulings of international courts set precedents that influence actors other than the parties to the dispute? Are international courts agents of change or do their judgments merely reflect ongoing social and political trends? We answer these questions in the context of European Court of Human Rights (ECtHR) judgments on lesbian, gay, bisexual and transgender (LGBT) issues. ECtHR judgments often explicitly reflect evolving practices in Council of Europe’s member states. We suggest three mechanisms through which such judgments could push lagging states toward adopting policies and laws in line with those of more progressive countries. First, national courts can rely on ECtHR jurisprudence to invalidate domestic laws. Second, ECtHR rulings can help inform and mobilize domestic constituencies to push for legislative change. Third, ECtHR rulings can have an indirect effect by affecting the conditions the EU and the Council of Europe set for membership. We investigate these hypotheses using a new dataset that matches ECtHR judgments on LGBT issues with national laws and policies in Council of Europe member countries. We address endogeneity concerns by modeling the Court’s decision-making process. We find that ECtHR judgments have a significant and positive effect on the probability that lagging countries will adopt legal reforms that expand LGBT rights and that all three mechanisms contribute to this. Even though the implementation of ECtHR rulings is far from perfect, the precedential effect of these rulings sometimes induces states to adopt policies that they might otherwise not have adopted or would have adopted later.