Domestic Politics and the Effectiveness of Regional Human Rights Courts

ABSTRACT

Under what conditions are regional human rights courts effective? I argue that in order for regional human rights courts to be effective, they should deter future human rights abuses and this is more likely when the executive adopts and implements rights-respecting policy in response to adverse regional court decisions. When the executive expects the domestic judiciary to implement regional human rights court orders, the executive also expects to face domestic pressure for failing to make policy changes despite domestic judicial implementation of regional court orders. However, the domestic judiciary does not implement regional court orders with equal probability. Domestic judicial power (independence and effectiveness) increases the ability and willingness of the domestic judiciary to implement regional court orders, and subsequently increases the likelihood that the executive adopts and implements comprehensive human rights policy. Using data on adverse judgments from the European and Inter-American Courts of Human Rights, I find that regional human rights courts are more likely to be effective in the presence of a strong domestic judiciary.

KeyWords:

• human rights
• international organization
• international law

Acknowledgments

Thanks to Will Moore, Ryan Welch, Jesse Johnson, Clayton Thyne, Tiffany Barnes, Justin Wedeking, Chris Reenock, Sean Ehrlich, Meg Shannon, Brian Crisher, and the anonymous reviewers and editors at International Interactions for their invaluable feedback on various drafts of the manuscript.

Notes

¹ An adverse decision is a regional court judgment that finds the state in violation of the relevant international human rights treaty.

² Conrad and Moore (2010) call these types of actions ex ante controls on the behavior of state agents.

³ Conrad and Moore (2010) call these types of actions ex post controls on the behavior of state agents.

⁴ Although the focus of this article is the domestic judiciary, I account for the role of the legislature in generating executive incentives to engage in human rights policy change in the empirical analysis by including variables that make legislative changes more or less difficult.

⁵ The sample analyzed includes forty-six states. Montenegro became a member of the Council of Europe in 2007, but was not the recipient of an adverse ECtHR decision related to physical integrity rights (the focus of the empirical analysis) until 2014.

⁶ Trinidad and Tobago denounced the ACHR and the IACtHR. Canada and the United States have not ratified the ACHR. All three are omitted from the analysis. Barbados and Suriname are also excluded from the analysis as both countries have small populations (less than 1 million). Poe and Tate (1994, 861) find that countries with small populations are more likely to respect rights.

⁷ The theory elaborated above indicates the executive behaves in expectation of implementation by the domestic judiciary. Arguably, the executive does not wait for the domestic court to implement adverse regional court orders before adopting human rights policy. Rather, the executive has incentives to adopt, administer, monitor, and enforce human rights policy when there is an expectation of domestic judicial implementation.

⁸ Conducting a Breusch - Pagan Lagrangian Multiplier test shows that I can reject the null hypothesis that there is no significant difference across units, and the random effects model is appropriate. Models estimated with fixed effects are included in the Online Appendix, the results remain robust to this specification.

⁹ These figures are created using the Margins suite of commands in Stata.

¹⁰ Judicial power is only plotted from 0.3–1.0 because there are few countries in the European sample with the lowest judicial power scores.

¹¹ A lagged dependent variable is included as well.

¹² I only plot the predicted probability for values of judicial power ranging 0.3–1.0 because the mean in the sample is around 0.8, and there are few country-years at 0–0.29.

¹³ The uncertainty in the estimates may also be due to the number of country-years in the frequent category of torture (190) relative to occasional torture (367) and no torture (417).

¹⁴ Specifically, the ECtHR data showed 67.68 percent improvement in balance and the IACtHR, 97.59 percent improvement.

¹⁵ See http://www.oas.org/en/iachr/media_center/PReleases/2016/069.asp for more on the crisis.