International Courts and the Use of Selective Restraint in Times of Backlash

• In Event: Democracy and Courts: Navigating Backsliding and Building Trust

Abstract

International courts have come under fire in various domains of their activity. Human rights courts, in particular, have faced the charge of unduly expanding the remit of human rights protections. Insights from the judicial behavior literature suggest that criticism from states and attempts to curb courts’ power shape judges’ incentives and affect their rulings. We suggest that international courts can attempt to mitigate and prevent backlash by yielding to state pressure in a selective manner. This takes the form of showing restraint in areas that matter the most for states, while continuing their activity as usual in other areas. We test this expectation in the case of the European Court of Human Rights, using original data of rulings concerning the prohibition of torture and inhuman and degrading treatment issued between 1967 and 2023. Scholars have already examined how this court may be treating consolidating and non-consolidated democracies differently, yielding more to the pressure of the former to confront their criticism. Our contribution partly corroborates this finding while uncovering another key dimension of selective restraint—one that operates at the level of issue. We identify migration, and particularly the principle of non-refoulement, to be a particularly salient issue raised by the critiques of the court, including consolidated democracies. In line with our expectations, the court appears to show restraint in this issue area and arrive at fewer violation decisions. Importantly, this effect is consistent across both consolidated and non-consolidated democracies in the short run. Our findings highlight the importance of issue characteristics in driving deferential tendencies of international courts that can have the effect of lowering the standards of legal protection for all types of states.

Authors

• Ezgi Yildiz, California State University, Long Beach

• Umut Yüksel, Universitat Pompeu Fabra