Strong Courts and Their Weak Allies: Labor Activists in Strasbourg

• In Event: Europe’s Courts: Between Bottom-up Mobilization and Popular Backlash

Abstract

Scholarship on international courts shows that, when expanding their powers through activist judgments judges toe the boundaries of their authority and respond to threats of override or signals of deferral by member states. During periods of expansion, courts need allies from the society to bring strong cases allowing courts to set new precedents. Who are the friends of international courts that help them expand their authority? Existing studies suggest that powerful interest groups, especially those with access to financial and legal resources, are in a more advantageous position to influence judicial outcomes. The central role of resources, however, raises concerns about unequal access to justice. Scholars pointed out that lack of legal aid, access to domestic courts, and legal expertise place marginalized groups in an even more disadvantaged position. If strong legal advocacy organizations heavily shape judicial outcomes, then we would expect these groups to dictate the issue areas within which international courts expand their jurisprudence.

I examine the expansion of ECtHR case law in an unexpected issue area, namely labor rights, to argue that resource poor or disempowered groups sometimes serve as best allies to international courts. Drawing on fieldwork data from Turkey and the UK on the labor rights litigation before the European Court of Human Rights (ECtHR) and an analysis of trade union rights cases before the ECtHR, I find that the bottom up mobilization of labor activists played a key role in building the case law. Findings suggest that the declining power of trade unions, rather than their strength led labor activists to seek alternative remedies at the international level. Due to its waning mobilization in the post-1980 period, organized labor was no longer in a position to influence policy outcomes through domestic institutions. Targeting the ECtHR as a new avenue, Turkish and British labor activists led the court to overturn its previous jurisprudence and set the most important precedents on trade union rights.
This research contributes to theorizing the role of civil society actors in expanding the authority of international courts by underscoring the role of legal and political opportunity structures at the domestic level that lead activists to seek alternative remedies. I show that state repression can be a motivating factor for groups who are averse to judicial tactics or foru resource-poor groups. Such groups serve as strong allies to ICs since cases from repressive contexts easily resonate with judges as basic human rights violations. The finding that disadvantaged and resource-poor groups in society ally with the ECtHR provides an important perspective in the wake of rising popular and government backlash against IC around the world.

Author

• Filiz Kahraman, University of Toronto