Legal Knowledge and Expertise in International Politics
In: iCourts Working Paper Series, No. 324
In: iCourts Working Paper Series, No. 324
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In: Forthcoming in Nordic Journal of Human Rights
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In: iCourts Working Paper Series (No. 290)
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In: Nordiques, Heft 43
ISSN: 2777-8479
In: Studies on International Courts and Tribunals Ser.
In: Law & Ethics of Human Rights, No. 15(1), Forthcoming
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In: Law & ethics of human rights, Band 15, Heft 1, S. 93-123
ISSN: 1938-2545
Abstract
The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights' long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.
In: Forthcoming in Nordiques, Band 40
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In: Forthcoming in Law and Contemporary Problems
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In: Forthcoming in Law and Contemporary Problems
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In: Madsen , M R & Gammeltoft-Hansen , T 2021 , ' Regime Entanglement in the Emergence of Interstitial Legal Fields: Denmark and the Uneasy Marriage of Human Rights and Migration Law ' , Nordiques , vol. 2021 , no. 40 , pp. 1-19 . https://doi.org/10.4000/nordiques.1518
This article examines the political and legal processes through which human rights and migration law have become confounded – what we in this article more generally refer to as regime entanglement. Regime entanglement implies that different areas of law not only interact but are more fundamentally entwined and mutually impacted. Human rights and migration have historically had distinct trajectories in European law and politics, but the recent coupling of the two, we argue, have transformed both. Migration law has gained legal momentum and judicial empowerment from increasingly engaging human rights law and institutions; human rights law has gained legitimacy for its universalist aspirations by developing, albeit slowly, a jurisprudence on non-nationals' rights. Yet, the coupling has also been politically contentious – at times even explosive – which has in turn challenged both fields of law. Although this entanglement is a general European development, the article applies a more situated approach, using Denmark as a case for understanding how these two legal regimes have been implemented and interacted in national law and politics.
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In: Nordiques, Heft 40
ISSN: 2777-8479
In: Madsen, Mikael and Mayoral, Juan A. and Strezhnev, Anton and Voeten, Erik, Sovereignty, Substance, and Public Support for European Courts' Human Rights Rulings, American Political Science Review (forthcoming)
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Working paper
In: iCourts Working Paper Series, no. 268
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In: American political science review, Band 116, Heft 2, S. 419-438
ISSN: 1537-5943
Is the public backlash against human rights rulings from European courts driven by substantive concerns over case outcomes, procedural concerns over sovereignty, or combinations thereof? We conducted preregistered survey experiments in Denmark, France, Poland, Spain, and the United Kingdom using three vignettes: a foreigner who faces extradition, a person fighting a fine for burning Qurans, and a home owner contesting eviction. Each vignette varies with respect to whether a European court disagrees with a national court (deference treatment) and whether an applicant wins a case (outcome treatment). We find little evidence that deference moves willingness to implement judgments or acceptance of court authority but ample evidence that case outcomes matter. Even nationalists and authoritarians are unmoved by European court decisions as long as they agree with the case outcome. These findings imply that nationalist opposition to European courts is more about content than the location of authority and that backlash to domestic and international courts may be driven by similar forces.