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

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 dierence-in- dierences 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 aected 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