Friday, 19 August 2011

Article on Judicial Tactics in the European Court

Shai Dothan of Tel Aviv University has written an article entitled 'Judicial Tactics in the European Court of Human Rights' which has been published in the Chicago Journal of International Law (vol. 12, no. 1, 2011, p. 115) and is available for free on SSRN.

The European Court of Human Rights (ECHR) has been criticized for issuing harsher judgments against developing states than it does against the states of Western Europe. It has also been seen by some observers as issuing increasingly demanding judgments. This paper develops a theory of judicial decision-making that accounts for these trends. In order to obtain higher compliance rates with the judgments that promote its preferences, the ECHR seeks to increase its reputation. The court gains reputation every time a state complies with its judgments, and loses reputation every time a state fails to comply with its judgments. Not every act of compliance has the same effect on the reputation of the court, however. When the judgment is costlier, the court will gain more reputation in the case of compliance. In an effort to build its reputation, in some cases the court will issue the costliest judgment with which it expects the state to comply. Since the ECHR receives high compliance rates, its reputation increases, which leads it to issue costlier judgments. The court restrains itself when facing high-reputation states that can severely damage its reputation by noncompliance or criticism, so it demands more from low-reputation states.

1 comment:

Mihai Martoiu Ticu said...

I assume that some of the East-European assholes are also the most notorious violators of the judgments. Putin for instance still thinks in power terms, like Stalin answered: "The Pope? How many divisions has he got?". During the discussions about the Universal Declaration Australia proposed an international court for human rights and Soviet Union (among the other powers) rejected the idea arguing that it would be a mangling with it’s sovereignty. Therefore I assume that the harsher the courts verdicts are, the more psychological inclined would be the Russians not to comply, since they see the judgments as an erosion of their power. Therefore it would be more logical for the court to give less harsh judgments in such cases, to have a higher chance of compliance. Especially that Russia counts for 27% of the pending cases and together with Turkey, Romania, Italy and Ukraine it counts for 62% of the pending cases. Therefore the court would gain much more reputation from the compliance of those rogue states. "See, we transform bad guys in good guys"-could the court claim in this case. But all this is speculation of course.