Backlash and Judicial Restraint: Evidence From the European Court of Human Rights

52 Pages Posted: 20 Apr 2018 Last revised: 18 Aug 2018

See all articles by Øyvind Stiansen

Øyvind Stiansen

Pluricourts; University of Oslo

Erik Voeten

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

Date Written: August 17, 2018

Abstract

International courts are increasingly facing backlash from consolidated liberal democ- racies. Do international courts become more restrained in their rulings in order to keep their traditional allies on board? We examine this question in the context of the European Court of Human Rights (ECtHR). We evaluate two mechanisms. First, gov- ernments that are critical of the Court may nominate more deferential judges. Second, judges may behave in a more deferential way towards consolidated democracies in order to prevent future backlash. We evaluate these ideas with a new dataset of all ECtHR judgments. We estimate ideal-point models based on dissenting opinions and nd that governments have indeed started to appoint more restrained judges. Five of the Court's six most restrained judges were appointed after the 2012 Brighton conference, which strongly signaled a preference for restraint. We then use matching and a di erence-in- di erences design to estimate changes in the Court's restraint versus the United Kingdom and other consolidated democracies. We nd strong evidence of a new variable geometry, in which consolidated democracies are increasingly given more deference compared to non-consolidated democracies. The United Kingdom is an especially large bene ciary. However, we do not nd that applicants belonging to vulnerable minorities, such as prisoners and refugees, have been disproportionally a ected by the ECtHR's increased restraint towards consolidated democracies.

Keywords: International Law, European Courts of Human Rights, International Courts, Human Rights, Backlash, Liberalism

JEL Classification: K00, K33

Suggested Citation

Stiansen, Øyvind and Voeten, Erik, Backlash and Judicial Restraint: Evidence From the European Court of Human Rights (August 17, 2018). Available at SSRN: https://ssrn.com/abstract=3166110 or http://dx.doi.org/10.2139/ssrn.3166110

Øyvind Stiansen

Pluricourts ( email )

P.O. Box 6706
St. Olavs plass 5
0130 Oslo
Norway

University of Oslo ( email )

PO Box 6706 St Olavs plass
Oslo, N-0317
Norway

Erik Voeten (Contact Author)

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

Washington, DC 20057
United States

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