Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints
Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints. Pennsylvania Studies in Human Rights (2018)
2 Pages Posted: 21 Jun 2018
Date Written: June 26, 2018
In Strategies of Compliance, I examine the nature of human rights challenges in two enduring liberal democracies--Germany and the United Kingdom. Employing a comprehensive data set that covers the compliance status of all European Court of Human Rights judgments rendered until 2015, I present a cross-national overview of compliance that illustrates a strong correlation between the quality of a country's democracy and the rate at which judgments have met compliance. Tracing the impact of violations in Germany and the United Kingdom specifically, I detail how governments, legislators, and domestic judges responded to the court's demands for either financial compensation or changes to laws, policies, and practices. Framing my analysis in the context of the long-standing international relations debate between rationalists who argue that actions are dictated by an actor's preferences and cost-benefit calculations, and constructivists, who emphasize the influence of norms on behavior, I argue that the question of whether to comply with a judgment needs to be analyzed separately from the question of how to comply. According to von Staden, constructivist reasoning best explains why Germany and the United Kingdom are motivated to comply with the European Court of Human Rights judgments, while rationalist reasoning in most cases accounts for how these countries bring their laws, policies, and practices into sufficient compliance for their cases to be closed. When complying with adverse decisions while also exploiting all available options to minimize their domestic impact, liberal democracies are thus both norm-abiding and rational-instrumentalist at the same time--in other words, they choose their compliance strategies rationally within the normative constraint of having to comply with the Court's judgments.
Keywords: Human Rights, European Court of Human Rights, Compliance, Rational Choice, Germany, United Kingdom
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