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International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe

34 Pages Posted: 24 May 2011 Last revised: 25 Dec 2014

Laurence R. Helfer

Duke University School of Law; iCourts: Center of Excellence for International Courts

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS)

Date Written: February 13, 2014

Abstract

Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.

Keywords: human rights, European Court of Human Rights, ECHR, ECtHR, European Union, gay, lesbian, transgender, international courts, international tribunals, conditionality, judicial lawmaking

Suggested Citation

Helfer, Laurence R. and Voeten, Erik, International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe (February 13, 2014). 68:1 International Organization 77-110 (2014). Available at SSRN: https://ssrn.com/abstract=1850526 or http://dx.doi.org/10.2139/ssrn.1850526

Laurence R. Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

iCourts: Center of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

HOME PAGE: http://jura.ku.dk/icourts/news/laurence-r-helfer/

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS) ( email )

Washington, DC 20057
United States

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