Shaping human rights policy in liberal democracies: Assessing and explaining compliance with the judgments of the European Court of Human Rights.

摘要

The European Court of Human Rights (ECtHR), the judicial body created to adjudicate disputes under the European Convention on Human Rights (ECHR), is frequently identified as one of the most successful transnational judicial institutions in existence today whose judgments are said to be habitually complied with by respondent states. The dissertation investigates this claim and, more specifically, probes the extent to which there is variation in the scope and depth of compliance by mature liberal democracies, and how such variation may be best explained.;Based on a review of the social science and legal literature on compliance and the rationalist and constructivist schools of thought reflected in it, I pursue two central hypotheses: First, judgments by a duly constituted transnational court exert a normative compliance pull on liberal democracies so that their governments will in no case disregard adverse judgments rendered against them (the constructivist hypothesis). Second, to the extent, however, that either the formal Convention framework or any remaining interpretive spaces open up a spectrum of alternatives in the execution of an adverse judgment, governments will in most cases choose those alternatives that minimize---materially and normatively---the domestic impact of an adverse judgment (the rational choice hypothesis). The underlying expected preference is deduced from the fact that a government that pursues litigation to the very end cannot, under most circumstances, be assumed to be supportive of an adverse outcome.;After conducting a descriptive large-N analysis of the execution status of all judgments rendered until 2005 to provide a quantitative overview of the compliance situation, I test these hypotheses across several partly comprehensive, partly selective country case studies, including, inter alia, the United Kingdom, Germany, and Italy, and generally find support for my hypotheses: While there is no instance of sustained defiance of the Court among liberal democracies, despite the absence of meaningful coercion, impact-minimizing behavior is pervasive. Rather than detecting categorical differences in this fundamental type of behavior, variation between countries occurs mostly with respect to the substantive issues that arise before the ECtHR and the concomitant variation in the spectrum of reasonably available alternatives in judgment execution.