Archive | Judicial

The Imperfect but Real Effects of International Institutions on LGBT Rights in Europe

So far I have made two points in my mini-series on human rights: that international human rights institutions at best have modest effects in countries where the opportunity structure permits international influence and that I am not persuaded by the argument that human rights institutions would work better if they focused only on the “ideals that inspired the human rights movement in the first place.”

It makes sense to follow up with some evidence that an international human rights institution did successfully influence non-traditional rights, albeit in a limited way. The case that I will discuss is the impact European Court of Human Rights (ECtHR) rulings have had on LGBT rights in Europe. It is based on a paper (forthcoming in International Organization) that I wrote with Duke law professor Larry Helfer. With Europe we mean all 47 Council of Europe member states, which includes Russia, Turkey, Albania, Azerbaijan, Georgia, Serbia and many other countries where public acceptance of homosexuality is among the lowest in the world.

The document that the ECtHR is supposed to interpret, the European Convention on Human Rights, makes no mention of homosexuality or sexual orientation. Thus, states have not explicitly delegated the Court the authority to uphold LGBT rights. Yet, we find that ECtHR rulings that find a certain practice, such as criminalizing homosexuality, a violation of the Convention have a substantial effect on policy change. However, this effect is only manifest in countries where public support for homosexuality is low and where a government is in power that does not draw its primary support from rural, religious, or nationalist bases (see graph below).

In countries with high levels of public acceptance and an urban and non-religious government, policy change happens without international legal action. Rural, religious, and nationalist governments tend to resist liberalization regardless. Yet low public support but a government that is not necessarily ideologically opposed to liberalization creates an opportunity for an international intervention to make a difference. We estimate that a substantial number of countries, especially in Eastern and Southern Europe, have more liberal LGBT rights laws than we would have expected in the absence of international court action.

Let me back up a bit and explain how we got there and what all of this means in the context of the current backlash against LGBT rights in some of these countries, most notably Russia.
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The Strange Court Case of Aleksei Navalny: What Comes Next?

The following guest post is from McGill University political scientist Maria Popova, the author of Politicized Justice in Emerging Democracies: a Study of Courts in Russia and Ukraine (Cambridge University Press, 2012).


On July 18th, Russia’s best known oppositionist, anti-corruption blogger Aleksei Navalny was convicted of embezzlement and sentenced to 5 years in prison.  His co-defendant, Pyotr Ofitserov received 4 years.  After Judge Blinov from Kirov’s Leninskii District Court finished reading the verdicts, the convicted were taken into custody and sent to jail, where they would await the results of their appeals.  Few were surprised by the guilty verdicts, but many had expected the sentences to be suspended, rather than effective. Certainly, no one expected what happened next.  On July 19th, the prosecutor asked the court to release Navalny and Ofitserov on bail.  The prosecutor argued that Navalny had a constitutional right to contest the September 2013 Moscow mayoral election, for which he had been registered as an official candidate only a couple of days earlier.  Judge Blinov immediately granted the prosecution’s request and by the end of the day Navalny and Ofitserov were back in Moscow, where they addressed a crowd of jubilant supporters.  The unprecedented nature of what happened in the provincial Russian courtroom cannot be overstated.  Releasing a convicted person on bail, although possible under the Russian Criminal Procedural Code, is an exceedingly rare occurrence.  Rare, as in there may have been a handful of cases in recent memory.  A request for bail from the prosecution, rather than from the defense, experienced Russian jurists claim, is a first!

The convictions and the swift bail release are perceived in Russia and abroad as an indication of the subordination of the judiciary to political incumbents, rather than as a reflection of the vagaries of the legal process.  The bail release is not an unequivocal victory for the defendants, but, at best, a short respite.  Russian acquittal rates are below 1% and appellate courts usually decrease, rather than increase, this percentage.  At worst, as a prominent Russian lawyer, Genri Reznik, put it, by convicting and then releasing Navalny, the regime showed who was boss.  With the convictions the regime turned the court from an adjudicative organ into a punitive one and with the bail release it turned the prosecution from an accusatory organ into one employed by the defense  (text in Russian available here).

What comes next for Navalny?  He has re-stated his intention to contest the Moscow mayoral election and his determination to win the race.  However, he may not be able to finish the campaign and stand in the election due to the conviction that is now hanging over him.  Russian municipal election law prohibits persons with convictions “that have entered into legal force” from standing in an election.  If and when Navalny’s conviction “enters into legal force”, the Moscow election commission will be legally obligated to take down his registration and remove him from the ballot.  The question is when the conviction can or will enter into force.  According to the Russian Criminal Procedural Code, first-instance court convictions enter into force 10 days after they have been issued, if there is no appeal filed.  We can assume that Navalny will appeal.  Then the conviction enters into force on the day the appellate court upholds it.  If the appellate court in Kirov upholds his conviction before election day (September 8th), Navalny will be out of the race and will not be allowed to continue campaigning.  The prosecution and the Kirov court moved very quickly with the bail hearing, so it appears possible that the appellate court could rule on the appeal soon.

Generalizing from the Navalny trial about the functioning of the entire Russian judiciary is problematic, not only because this is only one case, but also because of the very high salience of the Navalny prosecution.  Research that goes beyond the high-profile cases has painted a more mixed picture of the performance of the Russian judiciary.  Yes, there is evidence that Russian judicial independence is circumscribed by strong discipline within the judicial hierarchy, court financing by the regional authorities, practices of ex parte communication, and other structural conditions (Solomon Jr and Foglesong, 2000; Baird and Javeline, 2010; Ledeneva, 2008; Popova 2012).  But Russian courts at all levels are also routinely used by comparatively high and ever increasing numbers of Russian citizens to settle civil and business disputes and to seek redress for the unlawful behavior of state representatives (Solomon Jr. 2004, Hendley, 2002, 2004, Trochev 2012, etc.).  Moreover, a comparison of Russian and Ukrainian judicial output in the late 1990s-early 2000s suggests that in two important legal issue areas (electoral registration disputes and defamation lawsuits against media outlets), the Russian courts were less politicized than the Ukrainian courts (Popova, 2010; Popova 2012).  In Russia, politically powerful plaintiffs had less advantage over other plaintiffs when they went to court.

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What if Congress had reauthorized the Voting Rights Act for just 5 years?

Did the fact that a law was on a 25-year reauthorization schedule just become a reason for invalidating it? Would the Court have had less reason to invalidate the VRA if it were authorized for just 10 years? 5 years? We doubt that the length of the authorization would have made much difference in this case with this Court, but it is interesting to speculate on whether Shelby County v. Holder will be cited by future courts to justify using a law’s period of authorization as one criterion in evaluating whether it has a rational basis.

More from Scott Adler and John Wilkerson on the Shelby decision.  See also this earlier post.

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The Swing Justice

Peter Enns (Cornell) and Patrick Wohlfarth (University of Maryland) have a forthcoming article (ungated) in the Journal of Politics that makes a similar point to the one I made in a blog post earlier today, except that it is based on real data and analysis. Below is the abstract:

In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This paper makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case–specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision making body—can lead to incorrect conclusions about the determinants of policy outputs.


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What SCOTUS Does Not Understand about Lawmaking

The Court may be correct in its implicit judgment that Congress chose the path of least resistance in reauthorizing section 4(b) without making substantial revisions. But that is how electorally accountable institutions operate. To suggest that Congress should have done more is naive at best, and the Court fails to offer a remedy that reflects the realities of lawmaking.

That is Scott Adler and John Wilkerson on the Shelby County decision.  More here.


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Public Opinion, the Court, and Justice Kennedy

It has been rather challenging for legal scholars to portray the Supreme Court opinions of the past few days as somehow following logically from precedent or even from the past judgments of individual justices. As University of Chicago law professor Eric Posner puts it on Slate:

[..] trying to find a jurisprudential explanation for this opinion, like the opinions in Fisher and Shelby Country, is a fool’s errand. Same-sex marriage is advancing while affirmative action is receding because that’s what the relevant majorities of the justices care about.

This interpretation fits with what political scientists call the “attitudinal model” of Supreme Court decision making: judges decide cases according to their personal policy preferences even if they cloak their motivations in legal language. The point is not that the law doesn’t matter but that especially on value laden cases with ambiguous precedents justices often manage to find legal interpretations that fit their personal belief systems.

There is an intriguing alternative, or perhaps complementary, explanation: that gay rights are advancing while affirmative action is receding in the Court because that’s what the American public wants. This argument is implied by Patrick Egan’s terrific post here yesterday.[1]

But why would the Court respond to public opinion? Judges are not elected by the public. Isn’t the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists have amassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?

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Woman Has a Name

The following guest post is by Duke political scientist Bahar Leventoglu.


The European Court of Human Rights (ECHR) made a unanimous decision on May 28, 2013 that “impossibility for married women to use just their maiden name is discriminatory.”[1] I was the complainant in this case. In my application to the court, I claimed that the fact that Turkish law allowed married men but not married women to use just their last name[2] after marriage was discrimination based on sex. In particular, I relied on Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention of Human Rights. The court agreed.

This long legal journey lasted almost 9 years. Here, I want to share my experience, which I hope will attest to how far we still need to go when women’s rights are concerned.

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A Realist Victory On Human Rights?

Not too long ago it appeared as if exercises of extraterritorial (and universal) jurisdiction by domestic courts were going to be the method of choice to hold individual and corporate violators of human rights accountable for their misdeeds. Belgian courts were convicting Rwandans who had partaken in the Rwandan genocide, Spanish judge Baltasar Garzón used Spanish courts to prosecutor General Pinochet and other human rights violators in Latin America, and in the United States individuals used the Alien Tort Statute to obtain financial compensation from foreign and U.S. companies for human rights violations committed abroad.

While the idea is certainly not dead, the trend in the past decade has moved in the opposite direction. Belgium repealed its universal jurisdiction law and introduced greater political control after complaints were brought against Ariel Sharon and George W. Bush. Spain too curtailed its universal jurisdiction law and Baltasar Garzon was expulsed from the judiciary. The International Court of Justice (ICJ) ruled that diplomatic immunity prevented Belgian court from prosecuting the then Minister of Foreign Affairs of the Democratic Republic of the Congo and sovereign immunity means that Italian courts cannot allow suits for compensation from Germany over war crimes committed during World War II. And yesterday the U.S. Supreme Court ruled that the Alien Tort Statute (ATS) does not provide extraterritorial jurisdiction, thus seriously limiting future U.S. lawsuits for human rights abuses committed by companies abroad.

While human rights lawyers are frantically trying to figure out what opportunities remain, it is hard not to see a common trend here that is driven by Realist reasoning, such as that expressed most famously by Henry Kissinger. Both the Belgian and the Spanish parliaments were clearly motivated by a desire to avoid the kind of diplomatic troubles they found themselves in as a consequence of the actions of their courts. International courts such as the ICJ and the European Court of Human Rights have also afforded great respect for sovereignty as the fundamental principle of international relations even in cases that concern fundamental human rights violations such as torture and war crimes.

Yesterday’s Supreme Court opinion is also littered with Realist reasoning. For example, the Court finds that:

The presumption against extraterritoriality guards against our courts triggering such serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.

A key issue for the court is how to distinguish piracy, for which the ATS was arguably created, from human rights violations committed by corporations. Here is what the Court argues:
[..] applying U. S. law to pirates does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences.

As Justice Breyer’s concurring opinion points out, piracy does frequently occur within the territorial jurisdiction of another sovereign. The distinction is that the U.S. and most other states have a clear national interest in fighting piracy and there is unlikely to be diplomatic trouble over efforts to hold pirates accountable. The same is not true with alleged corporate human rights abuses abroad. The conclusion that courts should therefore have no jurisdiction over the potentially more controversial issue is as Realist an argument as you will likely find in Supreme Court judgments.

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