International Courts and Selective Restraint in Times of Backlash

Abstract

International courts operate under scrutiny and are often on the receiving end of criticism from states. Insights from the judicial behavior literature suggest that such criticism has an impact on how courts rule. Scholars have argued that courts can selectively increase their deference to states to manage and prevent backlash. This paper identifies a form of selective restraint that has so far received little attention. We argue that courts can show restraint selectively when treating issues with high political salience. We examine this expectation in the context of the European Court of Human Rights. Our analysis draws on a comprehensive dataset of rulings on the prohibition of torture and inhuman or degrading treatment, coded at the issue level, spanning from 1967 to 2023. We capture issue salience by investigating direct criticism expressed in meetings of state parties and third-party interventions in court proceedings. We exploit the fact some states have been more critical than others and that they have expressed criticisms in some issue areas and not others. On the whole, we show that states can successfully signal to courts their sensitivities about certain issues and obtain more favorable rulings for that issue. This is especially the case for issue areas subject to multiple expressions of criticism through diverse channels. Our findings highlight the importance of issue characteristics that underlie deferential tendencies of international courts in times of political pushback or backlash.