Chapter 6: Policy Making
6.2 High Courts and International Norms Institutionalization
Rebecca A. Reid and Kirk A. Randazzo
In 2004, a bitter dispute erupted in Ukraine over its recent presidential election. Initially, Viktor Yanukovych (the pro-Russian candidate) claimed victory. In response, the citizens of Ukraine and international election observers claimed election fraud. Because of growing pressure from the international community, and fearing potentially violent protests by Ukrainian citizens, the Ukrainian Supreme Court annulled the election results and ordered a new election, which was eventually won by Viktor Yushchenko (the pro-Western candidate). This example serves to illustrate how international law and pressure from international organizations intersect with and can influence domestic law.
Research by international relations scholars has focused recently on the influential role of international institutions on domestic politics and political outcomes. For example, Pevehouse (2002) reports that states belonging to regional intergovernmental organizations (IGOs), such as the European Union and Organization of American States, with highly democratic states as members generally improve their democracy ratings in subsequent periods. Other scholars demonstrate how dialogues and interactions within these IGOs allow norms to diffuse throughout the international community (see Risse, Ropp, and Sikkink 1999; Finnemore and Sikkink 1998). Each of these studies indicates that international institutions exert influence through processes of socialization (i.e., where states learn to behave in appropriate ways through their interactions with other states) that cause states to modify their behavior.
Perhaps the most prominent area in which such socialization appears successful is that of human rights. Greenhill (2010) notes that IGOs can promote human rights norms by “providing venues for interstate socialization.” As such, IGO participation allows states to interact with other countries and share their norms, values, and behaviors. Over time, these interactions socialize IGO members to share more norms and values, which in turn lead states to modify their behavior in order to act more consistently with the new norms. Hence increased IGO participation can have a “powerful influence on states’ human rights practices,” where states can be socialized into improving their human rights practices simply through participation in international institutions (Greenhill 2010).
If these conclusions are correct and membership in IGOs can influence states to alter their human rights practices, then they beg the question about how these new practices become incorporated in the domestic legal system. Presumably, domestic courts must rule on disputes in order to adopt the new human rights norms into the laws of their country. As Risse, Ropp, and Sikkink indicate, “The incorporation of international human rights norms into domestic institutions and law is a necessary precondition for the eventual establishment of fully rule-consistent domestic behavior” (1999, 249; see also Finnemore and Sikkink 1998). Yet scholars have not examined specifically either the types of roles played by domestic courts or whether they are necessary for changes in human rights practices.
This chapter addresses the question of legal institutionalization (i.e., the process of incorporating legal norms into domestic laws and institutions) by analyzing data across ten common-law countries to determine whether domestic high courts follow these newly acquired socialized human right norms. Among the domestic institutions potentially able to incorporate new international norms, the judiciary is most able to legitimize these norms and mandate changes to domestic law as a result. Hence we ask, Does increased IGO participation lead to high courts increasingly favoring rights claimants in subsequent time periods?
The Role of Domestic High Courts in Norm Institutionalization
National high courts become ideal actors for the institutionalization of international norms because of their ability to alter domestic law within states. Such institutionalization is necessary to ensure implementation regardless of individual beliefs (Risse, Ropp, and Sikkink 1999, 17). In other words, transforming international or foreign norms into domestic ones is necessary for those norms to change the identity of the state—to make sure that the norms are viewed the same way by citizens as domestic laws. Essentially, judicial institutions have the unique ability to transfer the “foreign” international norms into domestic law, thereby ensuring compliance to these institutionalized norms.
Additionally, states’ choices to violate human rights appear to be “linked to the effectiveness of a domestic legal system, which is the main enforcement mechanism of legal obligations, both internal and international” (Powell and Staton 2009). By participating in IGOs, it becomes more difficult for states to defect and not implement international obligations because ordinary citizens have the opportunity to bring lawsuits against the state before domestic courts (Powell and Staton 2009). The judiciary, therefore, is the institution most likely to curb state inclinations to violate human rights as well as reinforce human rights practices among the civil society.
Hence courts are the ideal actors for both (a) adopting international human rights norms by incorporating them into domestic law and (b) their ability to curb state inclinations for rights violations. Yet previous research has not examined empirically whether such institutionalization of international law occurs systematically. In other words, when courts decide cases, are they actually incorporating these international human rights laws into their domestic laws? This leads to our primary hypothesis:
Courts are also important institutions for international norm institutionalization because of the unique role they have in interpreting constitutional bills of rights. Constitutional bills of rights enable individuals to bring rights-related cases before courts, yet these legal documents are also interpreted and enforced by the courts. As such, the courts essentially determine which rights are enjoyed by citizens as well as the degree to which and under what circumstances they can be enjoyed.
While courts have the unique ability to interpret constitutional bills of rights, the mere presence or absence of these legal documents has important implications for rights-related norm institutionalization. For example, the adoption of the Canadian Charter of Rights and Freedoms in 1982 provided the Canadian Supreme Court additional authority to expand individual rights, which in turn led to the legal mobilization of several groups advocating for additional rights (Morton and Knopff 2000, 24–25). Similarly, the new constitution adopted by Brazil in 1988 not only included protections from arbitrary actions (negative rights) and political rights of participation (positive rights) but also recognized diffuse and collective welfare rights, thus introducing new rights responsibilities for the state (Arantes 2005). Furthermore, Colombia’s new constitution in 1991 also included a bill of rights with strong judicial enforcement of human rights, which “infused rights-oriented discourse” into the country (Espinosa 2005, 75).
Therefore, the presence of a constitutional bill of rights facilitates the expansion of human rights through creating new language, raising awareness of rights protections, and promoting the development of new organizations aimed at increasing protections that are often referred to as “support structures” (Epp 1998). Essentially, the growth and diversification of these organizations, the increases in financial support, and the changes in the accessibility of the courts enable rights groups and individuals to push their preferred rights policies into the policy-making judicial system (Epp 1998; Morton and Knopff 2000; Moustafa 2003). In this manner, the judiciary becomes an avenue for policy making in the interests of the rights organizations as well as for individuals. Consequently, because of the importance of a constitutional bill of rights for the expansion of rights protections, we believe that the effects of international rights norms will be conditional on the presence of a constitutional bill of rights. Thus a second hypothesis is necessary:
Research Design and Data
Data for this analysis come from the High Courts Judicial Database (HCJD), compiled by Haynie, Sheehan, Songer, and Tate. Specifically, we examine decisions from the following courts: the High Court of Australia (1969–2003), the Supreme Court of Canada (1969–2003), the judicial committee of the House of Lords of England (1970–2002), the Supreme Court of India (1970–2000), the Supreme Court of the Philippines (1970–2003), the Supreme Court of Appeal of South Africa (1970–2000), the Constitutional Court of South Africa (1995–2000), the Court of Appeal of Tanzania (1983–1998), the US Supreme Court (1953–2005), the Supreme Court of Zambia (1973–97), and the Supreme Court of Zimbabwe (1989–2000).
The dependent variable in our analyses is the proportion of pro–individual rights decisions rendered by national high courts for civil liberties cases only. This variable is calculated as the percentage of pro–individual rights decisions for each country on an annual basis. To examine the effects of international norm diffusion, we employ two primary independent variables. The first simply measures the number of full IGO Memberships possessed by a state in a given year. The data are taken from the Correlates of War 2 International Governmental Organizations data set, providing each country’s annual participation in IGOs. We argue that as states increase the number of their full IGO memberships (as opposed to associate or observer memberships), they are more likely to experience pressure from the international community to adopt international human rights norms. Consequently, we expect a positive relationship to exist between this variable and the dependent variable. Thus as the number of full IGO memberships increase, we expect an increase in the proportion of pro–individual rights decisions.
As stated in our second hypothesis, we believe the effects of IGO participation is conditional on whether a country possesses a constitutional bill of rights. Therefore, to measure this interdependent relationship, we include a dummy variable Constitutional Bill of Rights (measured 1 if a country possesses a bill of rights) and interact it with the continuous variable measuring the number of full IGO memberships. Consequently, the variable IGO Membership * Constitutional Bill of Rights Interaction measures the effects of IGO memberships only for those countries possessing a constitutional bill of rights.
Before viewing the results of our empirical models, it is useful to examine some preliminary evidence pertaining to the influence of international norms on domestic human rights law. Figure 1 presents initial evidence of the relationship between full IGO memberships and the proportion of pro–individual rights (i.e., liberal) decisions rendered by high courts in civil liberties cases. In this graph, one immediate observation concerns the relationship of IGO membership and the proportion of pro–individual rights decisions in the United States. For every country except the United States, there appears to be a positive trend. Yet in the United States, this trend is either nonexistent or potentially negative. Further empirical inspection (not shown here) reveals that the United States is indeed an outlier. Therefore, we remove the United States from any further analysis in order to not bias any results.
Once we did this, we ran a regression model to determine the effects of IGO membership on the proportion of pro–individual rights decisions. We determined that the regression model is more appropriate for this analysis because the dependent variable is a continuous, ratio-level measure with a meaningful 0 value. More specifically, we employ a fixed effects regression model to control for any potential variation caused by any country-specific characteristics not explicitly measured. These results, displayed in table 1, demonstrate that the fixed effects approach is appropriate.
|Coefficient (Standard Error)||t-Statistic||Significance|
|IGO Membership||-.001 (.001)||-0.85||0.396|
|Bill of Rights||-.079 (.021)||-3.83||0.000|
|IGO Membership * Bill of Rights Interaction||.005 (.001)||5.29||0.000|
|Number of Groups||9|
|Probability > F||0.000|
Note: Coefficients represent the results of a fixed effects model with standard errors in parentheses. The dependent variable is the annual proportion of pro-individual (i.e. liberal decisions) in civil liberties cases per country.
The results in table 1 provide mixed support for our two hypotheses. More specifically, we see that the empirical data do not support our first hypothesis concerning IGO membership generally. This influence is not significantly related to the proportion of pro–individual rights decisions by national high courts. However, for states with a constitutional bill of rights, the number of full IGO memberships is statistically significant and positive.
Placing the Results into Substantive Context
Examining empirical results within a table of coefficients does not offer an opportunity to see the substantive context of these effects. Therefore, to gain a better picture of what IGO membership and a constitutional bill of rights means for pro–individual rights decisions by national high courts, we offer two graphs. The first graph, figure 2, reveals the effects of IGO membership for countries without a written bill of rights. Immediately, we can see that there is not much difference in the proportion of decisions favoring individual rights between countries on the low end of IGO membership (0.46) and those on the high end (0.44). Additionally, because the confidence intervals are so large, there is no meaningful distinction for IGO membership in these countries.
In contrast, figure 3 presents a graph of IGO membership for countries that possess a constitutional bill of rights. Within these countries, we see a very visible and positive effect. Countries with few IGO memberships rule in favor of individual rights approximately 47 percent of the time. As these states join more IGOs, the proportion of pro–individual rights decisions jumps to just under 65 percent—an almost 20 percent increase. Therefore, the presence of a constitutional bill of rights significantly affects the influence of IGO membership. High courts in countries with a written bill of rights are substantially more likely to render pro–individual rights decisions as the countries join more IGOs.
Our chapter examines whether domestic high courts follow international rights norms and whether the interpretation and protection of rights by domestic courts are influenced by state participation in multiple IGOs. Our primary contention is that increased participation in IGOs leads to greater exposure of the state to international norms and legal conventions. Under this assumption, then the question becomes whether this exposure leads to an expansion of human rights by the domestic high court.
The empirical evidence indicates that the answer to this question is yes; however, the influence of international norms through IGO participation operates conditionally based on whether the state possesses a constitutional bill of rights. These results offer a promising first step to understanding how international and domestic laws interact in the area of human rights, but additional research is necessary. One question that remains involves the nature of IGOs: Are certain types of organizations more successful at norm diffusion than others? In this study, we treat all IGOs as equal, yet in reality, some IGOs are more suited toward the socialization of human rights norms than others. For example, some IGOs explicitly mandate certain levels of human rights protections in order for a state to join and/or maintain its membership. Furthermore, some IGOs are designed specifically to focus on human rights, and these seem more likely to effectively alter state behavior (compared to IGOs whose primary goals include economic development or environmental sustainability). Finally, some IGOs possess their own judicial bodies that can enforce state commitments to human rights compared to other IGOs that possess no formal monitoring or enforcement mechanisms. Further research is needed to more precisely understand these nuances and their potential effects on states and domestic court decisions.
Still, this study provides a promising first step in demonstrating that IGO participation affects domestic political institutions. Therefore, this evidence offers hope to human rights activists and organizations seeking to improve rights protections. The data indicate that IGO participation can effectively transform the domestic legal landscape even in states without strong prior commitments to human rights.
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- For the following IGOs, identify which are rights-oriented (defined as organizations that possess an explicit mission toward promoting rights, or actively engage in rights-promoting activities or funding).
- African Union (AU)
- Association of Southeast Asian Nations (ASEAN)
- European Union (EU)
- International Atomic Energy Agency (IAEA)
- International Monetary Fund (IMF)
- Islamic Development Bank (IDB)
- North Atlantic Treaty Organization (NATO)
- Organization of American States (OAS)
- United Nations (UN)
- World Trade Organization (WTO)
- For the IGOs listed above, identify which have judicial bodies. Based on these results, which IGOs are more likely to affect state behavior through domestic high court decisions? Why?
- Some IGOs establish regional or international courts that allow individuals to request (via lawsuit or other legal complaint) those courts to hear cases against state violations of human rights. For example, individuals living in states that are part of the Organization of American States (OAS) can petition the Inter-American Commission of Human Rights to submit their complaints to the Inter-American Court of Human Rights. ↵
- This ability to curb state behavior assumes effective judicial systems (so that citizens are likely to seek redress through them) and assumes judicial independence. ↵
- Despite its seminal status, Epp’s (1998) support structure analysis is falsified both as a direct influence on rights litigation and as a necessary but insufficient condition for rights litigation by Sanchez-Urribarri et al. (2011). ↵
- The HCJD is available from the University of South Carolina’s Songer Project (www.songerproject.org). ↵
- Pro–individual rights decisions occur when the individual wins while the state loses. In many instances, these are considered more liberal decisions. Conservative decisions generally occur when the state wins while the individual loses. ↵
- Greenhill (2010) demonstrates that the diffusion of norms does not depend on the type of IGO in which a state participates. Consequently, we simply count the number of full IGO memberships and do not distinguish based on IGO type. ↵
- Due to the inclusion of the interaction term, the variable “Number of Full IGO Memberships” now captures these effects only for countries without a constitutional bill of rights. ↵