Regional Judicial Institutions and Economic Cooperation: Lessons for Asia?

Why is Asia lagging behind other regions in creating regional judicial institutions? What lessons from the operation of such institutions elsewhere could be valuable to Asian regional economic integration? I show that Asian states are not unusually averse to refer inter-state disputes over trade, investment, and territory to global judicial institutions. Moreover, Asian states are not unique in their reluctance to resolve regional inter-state disputes through judicial means: Regional judicial institutions elsewhere have also rarely been used to resolve inter-state disputes. The most valuable lesson for Asia from experiences elsewhere is the role that regional courts can play in resolving disputes between administrative agencies and private parties about the implementation of international law. While Asia lacks an extensive set of regional laws and regulations that create rights and obligations for private parties, there is a broad body of international law that already applies in many Asian countries. National administrative agencies or courts may not always be well-equipped to interpret this law. I suggest the creation of a regional judicial institution that contributes to the uniform application of this law and that may help signal the commitment of states to their international obligations. The proposed institution provides incentives for harmonization without creating new obligations, thus recognizing the diversity among Asian states.regional judicial institutions; regional economic integration; Asia

The Role of Precedent at the European Court of Human Rights: A Network Analysis of Case Citations

While political scientists have become increasingly interested in the output of international courts, they have paid little attention to the manner by which these courts justify their decisions and develop legal norms. We address these issues through a network analysis of European Court of Human Rights (ECtHR) citations. We argue that, like domestic review courts, the ECtHR uses its legal justifications at least in part to convince “lower” (domestic) courts of the legitimacy of its judgments. Several empirical observations are consistent with this view. First, country-specific factors do not determine the case-law on which the Court relies. Instead, it cites precedent based on the legal issues in the case. Second, the Court is more careful to embed judgments in its existing case law with respect to the more politically sensitive decisions. Third, the court embeds its judgments in case-law more when the respondent government is from a common law legal system where the courts traditionally rely more on similar justifications. In all, we conclude that the ECtHR by and large uses case law to justify its decisions in a way that is similar to domestic review courts. Finally, we highlight the utility of applying network analysis to further study the development of international legal norms

Legitimacy challenges to the liberal world order: Evidence from United Nations speeches, 1970–2018

Funder: University of CambridgeAbstractThe liberal international economic order has been facing high-profile legitimacy challenges in recent years. This article puts these challenges in historical context through a systematic analysis of rhetorical challenges towards both the order per se and specific global economic institutions. Drawing on Albert Hirschman’s classic typology of exit, voice and loyalty, we coded leaders’ speeches in the General Debate at the UN General Assembly between 1970 and 2018 as articulating intentions to abandon elements of the order, challenges or calls for reform, unequivocal support, or factual mentions of cooperation. Surprisingly, we find that explicit criticisms towards the liberal order are at an all-time low and that exit threats remain rare. An analysis of the historical evolution of criticisms to global economic institutions reveals a move away from the Cold War insider-outsider conflict towards insider contestation. For example, we find that as countries’ economies become more open, their leaders expressed more support for global economic institutions during the Cold War but less support since. Finally, we demonstrate consistency between the public policy positions leaders announce in UNGA General Debate speeches and their government positions on consequential reform debates on debt relief.</jats:p

Unstable Identities: The European Court of Human Rights and the Margin of Appreciation

All legal systems work under a master narrative – the self-conception of most actors of the system itself. A master narrative is a short and simple story and it is the underlying premise upon which any legal system is based. It is a simple story because it paints the system in quick broad brushstrokes and at (most) times is oblivious to the paradoxes within it. Furthermore, a master narrative is important for legitimization purposes because the actors’ legitimacy will depend on their (perceived) conformity with the system’s master narrative. Therefore, legitimacy is self-referential; the yardsticks for a legitimate action are contained within the system’s master narrative, not outside of it. When talking about different international courts it is important to remember that they are embedded within a master narrative that is contextual and contingent and, at different points, more or less contested. This paper explores the question of what happens when the master-narrative is in a period of transition (from a state cantered to a post-national world order) and when the actors’ legitimacy, their interpretative endeavours the very fundamentals are in a state of flux. I use the margin of appreciation discussion as a focal point of describing the conflicting narratives under which the European Court of Human Rights works, narratives in which the different actors (judges, attorneys, NGO activists, government agents) and their consequences in terms of the interpretation of the European Convention on Human Rights

International Courts as Agents of Legal Change: Evidence from LGBT Rights in Europe

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