MOBILE – Mobility Law Open Lab with Ezgi Yildiz

International Courts and the Use of Selective Restraint in Times of Backlash: The Case of the Non-refoulement Principle in Europe

Guest presenter: Ezgi Yildiz is an Assistant Professor of International Relations at California State University, Long Beach and a Research Associate at the Global Governance Center of the Geneva Graduate Institute. She is also a member of the Expert Group for the EU’s Anti-Torture Regulation and the Coordinating Committee of the European Society of International Law’s Interest Group on Social Sciences and International Law.

Presentation: This research builds on Ezgi Yildiz’s recently published book, Between Forbearance and Audacity: The European Court of Human Rights and the Norm against Torture (Cambridge University Press, 2023) (available with open access here). 

International courts have come under fire in various domains of their activity. Human rights courts, in particular, have faced the charge of unduly expanding the remit of human rights protections. Insights from the judicial behavior literature suggest that state criticism and attempts to curb courts’ power shape judges’ incentives and affect their rulings. We suggest that international courts can attempt to mitigate and prevent backlash by yielding to state pressure in a selective manner. This takes the form of showing restraint in areas that matter the most for states while continuing their activity as usual in other areas. We test this expectation in the case of the European Court of Human Rights, using original data of rulings concerning the prohibition of torture and inhuman and degrading treatment issued between 1967 and 2023. Scholars have already examined how this Court may be treating consolidating and non-consolidated democracies differently, yielding more to the pressure of the former to confront their indirect criticism. Building on this literature, we measure the effect of criticisms expressed during state intervention in court proceedings. Our findings show that countries that mobilize their resources to submit third-party observations tend to receive fewer violation decisions subsequently. We argue that state interventions, serving as means of pre-emptive backlash, signal state sensitivities around politically salient issues. We identify migration, particularly the non-refoulement principle, as a particularly salient issue raised by the critics of the European Court. In line with our expectations, the Court appears to show restraint in this issue area and arrive at fewer violation decisions while increasing its violation rates concerning other issue areas and other member states. Showing that deference is not wholesale, our findings highlight the importance of issue characteristics driving deferential tendencies of international courts that face political pushback or backlash.

Time: 6 June 2024 13:00-14:15

Place: MOBILE – 6B-2-22 Southern Campus + ONLINE

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