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Mini-conference: The Domestic Consequences of International Human Rights Treaty Ratification,
Florence, 25 November 2009
The domestic consequences of human rights judgments for elite attitudes: Why and how the
democratic setting matters?
This paper discusses whether the democratic setting makes a difference to why and how states
comply with human rights judgments and what effects such a setting has on domestic elite attitudes
towards supranational human rights courts and their decisions.
There is an extensive literature on what makes a state democratic and opinions differ on how best to
characterise a regime as democratic (Lindblom, 1977; Dahl 1989, Guttman and Thompson 1996).
This paper defines democracy by using four institutional and uncontroversial properties: 1)
Institutional protection of individual rights; 2) Rule of law (comprising of non-arbitrariness,
predictability, impartial courts and tribunals and equality before the law); 3) Regular competitive
elections; 4) Processes for citizen participation in decision-making. Literature on compliance has
analysed democratic compliance by focusing on the positive effects of democratic accountability and
the negative effects of democratic popular pressure on compliance (Neumayer, 2005; Simmons
2000; Busch and Reinhardt 2002; Dai 2006). Recent quantitative literature in international relations
and human rights further focused on regime type as an independent variable to explain state
commitment to human rights regimes and asked whether democracies behave differently than non-
democracies (Dawkins & Wade, 2008a).
This paper takes a different approach. It conceptualises the democratic setting in terms of the
ideational structure it provides in constituting elite attitudes and motivations and investigates how
democratic properties act as a resource for the formation of elite attitudes. The ideational basis of
elite behaviour in a democratic polity, is under-theorised at best and lacks systemic empirical study
(Helfer and Slaughter 1997). This paper aims to address this gap by asking what identities, policy
ideas and ‘meanings in use’ (Legro 2009; Weiner 2009) that democracy, as a long-standing form of
governance, fosters amongst domestic elites. The central argument of this paper is that the
democratic setting matters as a distinct background for reasons for compliance with human rights
judgments as well as the way in which this compliance occurs. More specifically, democracy as an
institutional background both informs elite attitudes that underlie the view that democracies should
be rule-abiding and human rights respecting internationally and those that regard supranational
human rights judgments as undue and unjustified interferences in well-established legal and political
systems. This argument has implications about how safely we can generalise about democratic
behaviour across a large number of cases and highlights the context specificity of democratic elite
behaviour in relation to human rights judgments.
In order to investigate these questions, the paper focuses on the European Court of Human Rights
and elite attitudes towards its judgments in Western democracies. The empirical data for the
argument comes from over sixty qualitative elite interviews carried out with politicians and high
court judges in the United Kingdom, Germany and Ireland. This interview data has been analysed in
constant comparison with data from similar interviews carried out in Turkey and Bulgaria and
interviews with domestic human rights lawyers litigating in Strasbourg. The latter two countries
enable the argument to focus on what makes the stable democratic setting distinct from settings
that are better qualified as democratising or in transition from the perspective of elite attitudes and
motivations for compliance with human rights judgments. The interviews with human rights lawyers
reveal whether the expectations of litigants differ in terms of compliance in more mature democratic
settings as opposed to democratising states.
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The paper first sets out the framework of its study by outlining the characteristics of human rights
judgments that lead to unique compliance problems. The existence of an external third party
adjudicator setting the agenda for domestic human rights changes is a distinguishing characteristic of
human rights judgments delivered by supranational human rights courts. The paper then sets out
three types of compliance behaviour, which flow from democratic elite attitudes towards human
rights judgments. The paper finally concludes by discussing what conditions, if any, make ‘democratic
backlash’ against human rights judgments and human rights courts more likely.
A. The characteristics of human rights judgments and the deliberative compliance model
in Europe
Human rights judgments are a particularly institutionalised form of international human rights
commitment. Only regional systems with human rights courts produce human rights judgments that
are recognised as legally binding. These regional systems have a number of features that distinguish
compliance with their human rights judgments from compliance with international human rights
treaties in general:
1. Human rights judgments make ongoing and specific demands on states in the form of: a)
payment of compensation, b) restoring the status of a specific individual, c) changing a
specific administrative practice, d) reopening a trial or an investigation, e) reforming a
domestic institution (i.e. military courts, civil courts, disciplinary tribunals), f) amending or
repealing a specific legislation.
2. States do not have any control over issue/policy areas subject to human rights judgments.
Reservations to human rights treaties do not block the adjudication process.
3. States do not have control over how the human rights court decides.
4. Human rights judgments are temporally traceable allowing slow and rapid compliance
patterns to be identified as well as patterns of non-compliance or ‘contested compliance’.
5. States do retain control over whether they fulfil the specific demands from supranational
human rights courts.
In addition to these general characteristics, the European human rights system has a mechanism to
follow up on compliance, which I term the deliberative compliance model. Deliberative compliance is
based on the principle that domestic institutions retain a degree of control over how to comply with
a human rights judgment. This is not a matter of full-discretion, but qualified discretion. The
European Court of Human Rights does not specify which part of the state (i.e. which domestic
institution) should comply with the judgment, i.e. courts or legislature, but leaves that decision to
domestic authorities. When the Court demands legislative change it does not dictate the terms of the
legislation. When it demands a new investigation it does not specify who should carry it out, and
when it demands that the state should offer an effective remedy it does not dictate the institutional
make up of that remedy. The Court does not set time-limits for compliance with judgments either.
There are, however, cases where there is no room for discretion because of the very subject matter
of the judgment. For example, a case that involves unlawful detention requires the release of the
person detained with immediate effect, or a case that involves the unlawful deportation of an
individual requires an immediate end to that deportation. So, deliberative compliance, defined as
the room domestic authorities have for discretion and deliberation, is sensitive to each and every
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human rights judgment. There are human rights judgments that leave space for manoeuvre and
contestation, others do not. The work of the peer review mechanism, the Committee of Ministers,
also shifts based on the subject matter of the judgment. The Committee of Ministers is more lenient
to domestic authorities when the Strasbourg Court does not set specific targets on structural and
legislative requirements of a judgment. It is satisfied with solutions that are driven by the domestic
authorities.
The deliberative compliance model accomodates respect for domestic decision-making processes.
Despite this institutional accommodation, human rights judgments nevertheless challenge the
traditional view that democratic states do not face compliance costs with human rights law because
their practices already conform with human rights standards. Rather, as individuals have ongoing
access to supranational litigation, human rights judgments expose democratic failure based on
majoritarian bias. They bring cases involving non-citizens, vulnerable or minotirty groups that do not
have access to democratic processes to the fore, and they challenge the human rights compatibility
of democratically created institutions and processes. Supranational judgments, therefore, constantly
monitors democratic decision-making processes. This means that democratic elites are often faced
with the tricky question of complying with judgments that may not receive popular electoral support,
or that may require reforming long standing institutions of practices.
B. The democratic setting and its effects on elite behaviour and attitudes towards human
rights judgments
What characterises the democratic domestic setting and in turn the beliefs and attitudes of elites
that form part of this setting? Are democratic elites more or less prone to internalise international
human rights law? Are they sensitive to peer pressure from fellow democracies? Do democratic
elites have good reasons not to comply with human rights judgments that non-democratic or
democratising elites lack?
My argument is that the democratic setting in Western democracies produces three types of
compliance behaviour which are consequences of elites’ interpretations of their democratic setting
and what it stands for.
1) Regular compliance: Regular compliance means that the state complies rapidly with the
human rights judgment (often within two years) and does not contest the terms of
compliance indicated either by the Court or the Committee of Ministers
Regular compliance is explained by three types of beliefs among democratic elites. First, democratic
elites see themselves (and would like to be seen) as human rights respecting. Respect for human
rights mobilises ideas about how democratic elites behave with respect to human rights judgments
as well as ideas about setting an example to others (i.e. less democratic states) to comply with
human rights judgments. Elites see judgments against their states both as a source of
embarrassment and as questioning their country’s reputation as an example setter. As one
interviewee stated ‘‘….it’s a bit difficult to beat the drum on [human rights] if a couple of judgments
of the European Court *are+ saying you`re violating the European Convention’ (Interview 45,
30.03.2009).
Second, democratic elites are compelled by an argument of consistency. They hold that consistency
requires that respect for the rule of law domestically requires respect for the rule of law
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internationally. As explained by an interviewee ‘… It is therefore logical that – if you are part of a
common sphere of justice like the Council of Europe … you have the desire that people have the
same opportunities to make human rights claims against their own states’ (Interview 31,
26.03.2009).
Thirdly, judicial elites recognise that human rights judgments can improve the legal reasoning of
domestic courts. Judicial elites also have a presumption that the fundamental disagreements
domestic high courts and the European Court of Human Rights may have on the interpretation of the
European Convention on Human Rights is more of a theoretical problem or that it mostly exists on
‘fringe’ issues about human rights.
Significantly, elites who support regular compliance are not moved by reasons that concern strategic
interaction with other states within the same system. The logic of a ‘one player game’ which sees
human rights compliance as an individual decision problem better explains elite attitudes. Lack of
compliance by other states does not trigger an incentive for non-compliance for other states.
[Human rights lawyers who litigate in democracies, also share the expectation that most judgments
that they bring against their states would be regularly complied with.]
2. Contested compliance: Contested compliance means that democratic elites aim to utilise
their margin of discretion to the greatest extent possible and offer public reasons to explain
why compliance does not require policy or legislative changes or that it requires minimal
action on the part of authorities (be they judges, the legislative or the executive) Cases that
require structural changes in the organisation of the court system, delivery of public services,
or amendment in legislation tend to attract contested compliance. Most contested
compliance is also slow compliance as the discussions between the state and the monitoring
peers within the Committee of Ministers take a long time for a case to be ‘officially closed’.
Contested compliance can be explained by the degree of trust democratic elites have in their own
systems for the protection of human rights. This is significantly different when compared to trust that
elites have in democratising or authoritarian states. This also means democratic elites have less trust
in the supranational system because it is not subject to democratic checks and balances as far as it
intervenes in democratic affairs. The trust in the domestic system is based on a number of ideas: a)
the idea that a democratic system provides adequate protections for human rights and the rule of
law, b) that the democratic legal and political system provides for adequate democratic deliberation
that whatever the outcome it should be respected, c) that the supranational human rights courts
unduly intervene in the long-standing and fine-tuned structures of old-democracies d) that judiciary
and democratic constitutions provide adequate, if not better, protection for human rights.
For example, with reference to a violation decision in the case of Hirst v UK (application no.
40787/98) concerning the rights of prisoners to vote, a British Member of Parliament states: ‘Now I
think there is a perfectly legitimate debate to be had in our parliament about whether our
parliament should grant the right of prisoners to vote, perfectly reasonable but I don’t think it’s
anything to do with the European Court at all.’ (Interview 20, 10.12.2008)
3. Slow compliance: Slow compliance covers cases where compliance is slow, but not
necessarily contested. Slow compliance can be categorised as compliance problems that are
over five years (but this should not prejudice the fact that some compliance requires very
simple measures and five years may not be a good indicator of slowness in such cases).
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Slow compliance is better explained by difficulties elites face in reconciling the competences of
different institutions, the sensitivity they show towards citizen participation in decision-making,
prioritisation of issues within the democratic process and practicalities that prolong legislative
change. For example, elites see it as part of the democratic process that some issues ‘need more
time’ or that issues ‘lacking public support’ will be dealt with slower than high profile issues. Political
elites are further moved by reasons concerning ‘pre-election legacy’, i.e. they choose to defer some
human rights compliance to the succeeding government (or conversely they aim to comply rapidly to
claim legacy on an issue-area). Irish compliance with the decriminalisation of homosexuality, which
took four and a half years, for example, shows that though the government in power at the time did
not contest the judgment, it chose to keep a low profile about the judgment during its time in power.
Democratic backlash against human rights judgments? Context matters
The qualitative analysis of elite attitudes towards human rights judgments show that these attitudes
contain sources for both compliant behaviour and democratic backlash. An important external
factor, of course, is the human rights judgment itself, the quality of its reasoning and its
consideration of reasons provided by democratic states for their restrictions on rights. Democratic
elite attitudes about compliance behaviour are also distributed differently in different democratic
contexts. So, the conditions that make democratic backlash more likely are to be found in how these
attitudes are distributed amongst legal and political elites. Uneven distribution amongst political
elites as well as uneven distribution with respect to legal v. political elites would often lead to
sporadic or issue-sensitive backlash rather than an overall rejection of supranational human rights
judgments. [There is, however, also the question of how to distinguish democratic backlash from
other types of backlash, such as those on cultural, ideological or religious grounds]
In the empirical study, we found that the distribution of these attitudes differed between Germany,
the United Kingdom and Ireland. We also found that motivations for compliance vary amongst
politicians and high court judges within the same democratic context. Political discourses that
emphasise the superiority of democratic institutions are more likely to generate contested and/or
slow compliance than regular compliance. Legal discourses that emphasise democratic
constitutionalism and trust that theor constitution provies enough or better protection also offer an
orientation towards contested and/or slow compliance within the judiciary.