Issues Matter: Selective Restraint at the European Court of Human Rights

• In Event: Human Rights Promotion and Protection on the Global Stage

Abstract

In the past decade, the European Court of Human Rights (Court) has come under fire for increasing the ambit of human rights protections through expansive interpretation of the European Convention on Human Rights (Convention). In the backlash literature, many have focused on how concerted attempts to curb the Court’s power and criticism from states shape the incentives of the Court as it deliberates. In particular, scholars have examined the Court’s differential treatment of consolidated and non-consolidated democracies. We argue that the Court’s motivation for differential treatment may be guided by other concerns and that the issue area matters a great deal—the Court’s treatment may vary across the types of issues that are raised. We identify migration, and particularly non-refoulement, to be a particularly salient issue raised by the critiques of the Court, among which we find established democracies. We expect that the Court will be deferential in these issue areas to avoid further backlash. Using a dataset with disaggregated obligations raised under Article 3 between 1967 and 2016, we partially corroborate findings from previous work on the Court’s sensitivity to criticism from established democracies, especially after 2010. Moreover, we find evidence for our argument that looks for the sources of variation across different obligations. The Court has not simply become more deferential over time or with regard to certain states. It has become more deferential with regard to certain obligations and not others. While the issues where the Court appears to take a step back were raised by established democracies, we find that the Court is less likely to find violations concerning those obligations regardless of the regime type, and both consolidated and non-consolidated democracies benefit from the Court’s leniency. Our findings highlight the importance of issue characteristics in driving deferential tendencies that have the effect of lowering the standards of protection for all types of states and that non-consolidated democracies share the dividends gained from the criticism raised by consolidated democracies.

Authors

• Ezgi Yildiz, California State University, Long Beach

• Umut Yüksel, Universitat Pompeu Fabra