human rights, European Court of Human Rights, ECHR, ECtHR, European Union, gay, lesbian, transgender, international courts, international tribunals, conditionality, judicial lawmaking
European Law | Human Rights Law | International Law | Law
Do international court judgments influence the behavior of actors other than the parties to a dispute? Are international courts agents of policy change or do their judgments merely reflect evolving social and political trends? The authors develop a theory that specifies the conditions under which international courts can use their interpretive discretion to have system-wide effects. The authors examine the theory in the context of European Court of Human Rights (ECtHR) rulings on lesbian, gay, bisexual and transgender (LGBT) issues by creating a new dataset that matches these rulings with laws in all Council of Europe (CoE) member states. The authors also collect data on LGBT policies unaffected by ECtHR judgments to control for the confounding effect of evolving trends in national policies. The authors find that ECtHR judgments against one country substantially increase the probability of national-level policy change across Europe. The marginal effects of the judgments are especially high where public acceptance of sexual minorities is low, but where national courts can rely on ECtHR precedents to invalidate domestic laws or where the government in power is not ideologically opposed to LGBT equality. The authors conclude by exploring the implications of our findings for other international courts.
Laurence R. Helfer and Erik Voeten, International Courts as Agents of Legal Evidence from LGBT Rights in Europe (July 9, 2012)