International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe
In: International organization, Band 68, Heft 1, S. 77-110
ISSN: 0020-8183
In: International organization, Band 68, Heft 1, S. 77-110
ISSN: 0020-8183
In: International organization, Band 68, Heft 1, S. 77-110
ISSN: 1531-5088
AbstractDo international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? We develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. We examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual, and transgender (LGBT) issues by creating a new data set that matches these rulings with laws in all Council of Europe (CoE) member states. We also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. We find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. We conclude by exploring the implications of our findings for other international courts.
In: Supreme Court Review, p. 213, 2011
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In: International courts and tribunals series
In: Oxford Handbook of Comparative Human Rights Law (Neha Jain & Mila Versteeg eds. 2024) (Forthcoming)
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In: Duke Law School Public Law & Legal Theory Series No. 2022-47
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In: Michigan Journal of International Law, 2016 Vol. 37(4): 563-609
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In: Book published by Oxford University Press, this working paper includes the table of contents and introductory chapter of the book.
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Working paper
In: 14 Theoretical Inquiries in Law 479 (2013)
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In: Cambridge University Press, 2011
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In: BALANCING WEALTH AND HEALTH: GLOBAL ADMINISTRATIVE LAW AND THE BATTLE OVER INTELLECTUAL PROPERTY AND ACCESS TO MEDICINES IN LATIN AMERICA , Rochelle Dreyfuss & César Rodríguez-Garavito, eds. (2013)
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In: European Law Journal, Band 17, Heft 5, S. 701
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In: International organization, Band 64, Heft 4, S. 563-592
ISSN: 0020-8183
World Affairs Online
In: International Organization, Band 64, Heft 4
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Working paper
In: International organization, Band 64, Heft 4, S. 563-592
ISSN: 1531-5088
AbstractAre international courts power-seeking by nature, expanding the reach and scope of international rules and the courts' authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ's jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This comparison of two structurally identical international courts calls into question prevailing explanations of ECJ lawmaking, and it suggests that prevailing scholarship puts too much emphasis on the self-interested power-seeking of judges, the importance of institutional design features, and the preferences of governments to explain lawmaking by international courts.