Since the 1950s, international courts have incrementally transformed domestic and international governance. Growth in international legal institutions has skyrocketed with international tribunals and courts governing issues as diverse as human rights to trade disputes. Individuals are now increasingly governed by a dense and binding set of international laws and norms—often policies constructed with little or no direct electoral participation by society. While one dominant response characterizes this trend as undemocratic (e.g., Reference Dahl, Shapiro and Hacker-CordónDahl 1999; Reference RubenfeldRubenfeld 2004), I argue that international courts can provide an avenue for enhancing, rather than undermining, participation in processes of human rights governance.
This article theorizes the interaction between advocacy organizations and international courts in the context of the European Court of Human Rights (herein after ECtHR or the Court). There was no direct individual or group access to this international court when it was founded in the 1950s, yet today there is a vibrant legacy of participation by both individuals and organizations (Reference Cichowski, Madsen and ChristoffersenCichowski 2011, Reference Cichowski2006; Reference MadsenMadsen 2007; Reference Van den EyndeVan den Eynde 2013). Legal activists and advocacy groups are pivotal players at the ECtHR, despite continued opposition by some member states.Footnote 1 The analysis examines how and why advocacy participation evolved in this closed legal system, and identifies its role in the enforcement and development of human rights in Europe.
Understanding the interaction between international justice institutions and advocacy organizations is increasingly a challenge for scholars in the fields of law and the social sciences. The research continues a growing fusion between legal scholars and social scientists studying the growth and effects of international legal institutions (e.g., Reference Helfer and VoetenHelfer and Voeten 2013; Reference ShafferShaffer 2014; Reference SikkinkSikkink 2011) and it also builds on the work of socio-legal scholars drawing from political science, sociology, and anthropology examining processes of rights mobilization (Reference Barclay, Jones and MarshallBarclay, Jones, and Marshall 2011; Reference Marshall, Sarat and ScheingoldMarshall 2006; Reference McCannMcCann 1994; Reference MerryMerry 2006; Reference VanhalaVanhala 2011). I adopt an innovative approach drawing together important theoretical and methodological links between international courts, litigation, and organized interest participation. While litigation has a long history in the United States as an avenue for interest group pressure (Reference CollinsCollins 2008) and an influential mode of participation (e.g., Reference Marshall, Sarat and ScheingoldMarshall 2006; Reference ZemansZemans 1983), we know far less about a similar legal mobilization trend that is now spreading around the globe (e.g., Reference AnagnostouAnagnostou 2014; Reference DolidzeDolidze 2012; Reference Dor and HofnungDor and Hofnung 2006; Reference EppEpp 1998; Reference LindblomLindblom 2005; Reference Yamin and GloppenYamin and Gloppen 2011).
The article is organized as follows. First, I theorize and develop a framework for understanding the dynamic interaction between interest and advocacy organizations and international courts. The study then utilizes an innovative new database, the European Court of Human Rights Database (ECHRdb) (Reference Cichowski and ChrunCichowski and Chrun 2016), to examine how and why advocacy participation evolved and with what effect on the enforcement and development of human rights. Broad trends in the data are examined through two case studies: amicus curiae participation and violence against women (VAW) case law. Together the analyses illuminate patterns and variation within and across participation mode and legal domain. The case studies also present a hard case for international law.
Amicus curiae participation by advocacy groups is on the rise in domestic and international jurisdictions (Reference KochevarKochevar 2013; Reference SquatritoSquatrito 2012; Reference Van den EyndeVan den Eynde 2013). In the European Court of Human rights context, amicus curiae (referred to as third party interveners) are not a party to the dispute and are granted leave to submit written information such as comparative legal research or analysis on human rights principles relevant to the resolution of the dispute. Beyond the US context (Reference CollinsCollins 2008; Reference Larsen and DevinsLarsen and Devins) we know very little about amicus curiae patterns and effects, especially in international regimes that are traditionally restrictive to non-state actors. The VAW litigation is equally challenging. Human rights courts are well equipped to adjudicate claims from an individual citing direct harm at the hands of state authorities. Less clear are the cases in which the perpetrators of the violence are non-state actors, a reality that is often at the heart of VAW cases. Despite these challenges, there is a growing precedence for VAW prosecutions under international law, from rape as a war crime to domestic violence as a violation of the right to life—developments that are connected to the actions of legal activists and advocacy groups (Reference MerryMerry 2006; Reference MeyersfeldMeyersfeld 2010). Together these hard cases provide a more robust understanding of the role of advocacy groups and international courts in human rights governance.
Conceptual Approach
Dominant theories of international law as well as traditional understandings of international politics begin with the assumption that powerful state executives control the nature and scope of international legal outcomes (e.g., Reference Goldsmith and PosnerGoldsmith and Posner 2006). Moving beyond this general assumption, I propose a more complex understanding of international law and politics utilizing a process-based model where societal groups, states and international courts play an important role in giving meaning to the law and at times transforming domestic, transnational, and international governance. This contributes to a growing area of scholarship examining transnational legal orders and the increasing connections between domestic and international legal domains (e.g., Reference BryskBrysk 2009; Reference CichowskiCichowski 2007; Reference Darian-SmithDarian-Smith 2013; Reference Halliday and ShafferHalliday and Shaffer 2015; Reference MerryMerry 2006; Reference SikkinkSikkink 2011; Reference SimmonsSimmons 2009).
In any given polity or international regime, a complex set of structures and circumstances help to determine whether and how courts are used by societal groups and with what effects on governance. To make matters more complicated, within the same polity or regime the precise mix of factors will vary across time and policy domain. The approach therefore focuses on three theoretically significant institutional factors that help us understand change in interest and advocacy group participation in ECtHR litigation and the subsequent role in human rights enforcement and development.
• Standing Rules and Rights: the scope of rules and rights governing individual and group access to international courts.
• International Court Review Power: the relative power and jurisdiction of international courts to review the action or acts of elected officials.
• Interest and Advocacy Group Expertise and Resources: the degree of organizational strength, expertise and experience supporting interest and advocacy group participation in international legal processes.
Consistent with an historical institutionalist approach, we can expect these factors to be interactive and mutually constitutive. Indeed, judicialization processes are interconnected; a legal claim brought by a group or individual activates the court, whose judicial interpretation can at times change the scope of rights. And it is exactly these rules that in the future feedback on how the law comes to constrain or empower individuals, groups and courts, obstructing or perpetuating the dynamic (Reference Darian-SmithDarian-Smith 2013; Reference CichowskiCichowski 2007; Reference McCannMcCann 1994; Reference Stone SweetStone Sweet 2000). The following elaborates the theoretical approach.
First, rules and in particular, individual rights serve as structures that encourage and constrain behaviour in any society. Social scientists and legal scholars alike assert that the effective protection of laws is critically linked to their scope and judicial enforceability (Reference Abbott, Keohane, Moravcsik, Slaughter and SnidalAbbott et al. 2000). Formal legal norms provide more certain codes of behaviour that in the presence of independent judicial authority can then be enforced and protected. It is through judicial interpretation that the scope and application of rules can at times change, providing subsequent opportunities for litigation. Increasingly we see this dynamic unfolding across the globe, from historic civil rights litigation in India (Reference EppEpp 1998), to disability rights cases in Canada (Reference VanhalaVanhala 2011) to sex discrimination claims before the European Court of Justice (Reference CichowskiCichowski 2007, Reference Cichowski2013).
Standing rules are also critical for advocacy group participation. Scholars observe that expanded public access points, as realized through such avenues as referenda, access to information, policy juries, and legal standing for NGOs, to name just a few, are becoming an increasingly common feature of advanced industrial democracies (e.g., Reference Dalton, Scarrow, Cain, Cain, Dalton and ScarrowDalton, Scarrow, and Cain 2003). A similar dynamic is evolving at the international level as civil society and transnational activists are gaining new access to global governance institutions (Reference BignamiBignami 2005; Reference Keck and SikkinkKeck and Sikkink 1998; Reference SimmonsSimmons 2009; Reference Tallberg, Sommerer, Squatrito and JönssonTallberg et al. 2013; Reference TarrowTarrow 2005). And access for third parties is an increasingly common feature of international courts and tribunals enabling individuals and organizations to submit amicus briefs (Reference BartholomeuszBartholomeusz 2005).
Second, for these rules to enhance participation, they are connected to the judicial review power of international courts. Scholars observe a growing creation and enhancement of judicial review powers at both the domestic and international level (e.g., Reference AlterAlter 2014; Reference GinsburgGinsburg 2003; Reference ScheppeleScheppele 2006; Reference Shapiro, Shapiro and Stone SweetShapiro 2002; Reference Stone SweetStone Sweet 2004). This expansion in judicial power goes hand in hand with rights claiming (e.g., Reference EppEpp 1998; Reference Stone SweetStone Sweet 2000) and the ability of individuals and groups to utilize courts as enforcement mechanisms (Reference SimmonsSimmons 2009). Examining the conditions that enhance the rule making power of international courts is important for understanding not only the enforcement and development of rights, but also the potential space for individuals and groups within this process.
States create international courts with independent review powers in an attempt to create this same type of check on executives and legislatures that we see at the domestic level (see Reference AlterAlter 2014). Formal legislative processes are often quite closed, and with the exception of the United States are often dominated by the executive not the legislature. As the purview of government expands, including to the international level, there is a demand for greater transparency and accountability, which judicial review may provide. Thus, courts may at times provide a more responsive governmental venue for reform politics than traditional representative institutions (Reference GraberGraber 1993; Reference LovellLovell 2003; Reference ZemansZemans 1983)—a reality that not surprisingly deepens long-standing debates over the tenuous relationship between courts (as counter-majoritarian organizations) and representative democracy (e.g., Reference BickelBickel 1962).
Finally, interest and advocacy group expertise, resources, and experience shapes the extent to which organizations successfully participate in international legal processes. Rules governing access and judicial review powers are critical for successful reform driven litigation. Yet, the courts would remain silent without the individuals and groups that activate the legal process. There is much to suggest that opening legal institutions to societal actors empowers groups differentially. Scholars observe that litigation strategies are often used most successfully by the “haves,” those who may already be more socially, economically, or politically privileged (Reference EppEpp 1998; Reference GalanterGalanter 1974). Yet, we also know that even with loses in court, litigation can have powerful mobilizing effects for underrepresented individuals and groups (Reference McCannMcCann 1994).
Studies on transnational litigation in Europe, both in the European Union (EU) system and the Council of Europe, illustrate that groups with greater legal expertise and experience in transnational activism are more successful at utilizing international litigation for rights protection and policy reform (Reference Cichowski, Madsen and ChristoffersenCichowski 2011, Reference Cichowski2007, Reference Cichowski2006; Reference DolidzeDolidze 2012; Reference KelemenKelemen 2011; Reference TrevesTreves et al. 2005; Reference Van den EyndeVan den Eynde 2013; Reference van der VetVan der Vet 2012). Women's rights litigation in the EU often benefits from the highly organized transnational legal expert's networks that foster the growth of this seemingly individual litigation (Reference Alter and VargasAlter and Vargas 2000; Reference CichowskiCichowski 2013, Reference Cichowski2007). Successful litigation brought against Turkey before the ECtHR in the area of minority rights disproportionately involved well-established groups and legal activists with considerable international litigation experience (Reference AnagnostouAnagnostou 2014; Reference Cichowski, Madsen and ChristoffersenCichowski 2011). This trend is true of human rights organizations who are repeat players and supporters of the ECtHR (Reference DolidzeDolidze 2012; Reference TrevesTreves et al. 2005; Reference Van den EyndeVan den Eynde 2013; Reference van der VetVan der Vet 2012) and other international courts such as the International Criminal Court and the Inter-American Court of Human Rights (Reference HaddadHaddad 2012).
Data and Methods
The European Court of Human Rights provides a data rich environment to explore this theory. The Court, a judicial body of the Council of Europe (COE), is located in Strasbourg, France, and was established in 1959 by the then 13 member countries. Today membership in the COE includes 820 million Europeans from 47 countries. The Court rules on alleged violations of the European Convention on Human Rights (hereafter the Convention), an international treaty embodying a set of fundamental political and civil rights, and takes cases not only from COE citizens, but any individual living within a COE country. The ECtHR is one of the oldest and most active international courts, with over 18,000 judgments since its establishment. Despite this rich history, we have only begun systematic data analyses of this court whose decisions contribute to significant legal and political reforms throughout Europe.Footnote 2 There is also a relative paucity of social science research on the historical and present role of advocacy and interest groups in ECtHR litigation, despite the growing evidence of their presence and role in landmark decisions (see the December 2012 El-Masri judgment involving five advocacy groups that may prove to be a cornerstone for future cases seeking justice from the Bush administration's rendition policy).Footnote 3
The ECHRdb (The European Court of Human Rights Database, Cichowski and Chrun 2016) enables us to examine judgments and patterns of advocacy group participation across time and legal domain. The database compiles judgment and legal mobilization information from primary documents collected at the ECtHR as well as the Court's comprehensive full text online judicial decision database, HUDOC.Footnote 4 The article utilizes two datasets extracted from this larger database. The first dataset includes all ECtHR judgments from the first, 1960 through 2012, a total of 13,817 judgments. Judgment data is coded by respondent state, decision year, decision outcome, convention rights, and significance for legal development. The dataset also identifies participation by organization type and modes of participation (direct victim, legal representative, and amicus/third party intervention).Footnote 5
A second dataset examines VAW (violence against women) ECtHR case law from 1997 to 2014 as identified by the Court's case reports (ECtHR 2014a,b; 2015). There are a total of 54 cases in this dataset covering seven main areas of law: domestic violence, ill treatment in detention, police violence, rape, expulsion cases, trafficking, and violence by private individuals. Admittedly there may be more judgments that provide women some degree of protection against violence, yet the Court's compendium serves as a representative sample of this case law with a primary focus on VAW cases.
Interviews and archival research carried out at the European Court of Human Rights and the Council of Europe (COE) in Strasbourg, France in June 2015 complement the data analyses. The author interviewed ECtHR judges and senior lawyers and COE lawyers in the Department of Execution of Judgments. Primary source data also includes direct communications and historical documents from organizations participating in ECtHR litigation as third party interventions and historical documents collected at the ECtHR Archive, Press Office, and Library.
The European Court of Human Rights and Legal Mobilization
Today, the European Court of Human Rights is home to a diversity of advocacy organizations demanding state accountability for human rights protection throughout Europe. The enforcement and development of human rights over the last fifty years is inextricably linked to these civil society organizations (Reference Van den EyndeVan den Eynde 2013). Their participation as direct victim, legal representation, and amicus curiae intervener provides the critical comparative legal research and argumentation that transforms vague human rights into a safeguard against contemporary atrocities and violence.
The following section provides an historical analysis examining how and why standing rules, judicial review powers and legal expertise shaped this opportunity for advocacy group mobilization before the ECtHR. We then turn to a more detailed analysis of this dynamic by examining first a single mode of participation (amicus curiae interventions) and then a single legal domain (violence against women). Together the analyses give us a comprehensive understanding of the key institutional factors by systematically examining variation across time and group within participation mode and the effects for human rights enforcement and protection. The VAW data enable us to examine varying modes of participation across time and identify the effects on human rights protection.
Standing Rules, Review Powers, and Legal Expertise
Under the original Convention system, individual petitioners did not have direct access to the Court. Article 25 recognized the right of individuals to file an application, yet it was an optional not compulsory mechanism. Even when a state accepted Article 25, the European Commission of Human Rights served as the intermediary between the individual and the Court. Prior to 1994, only states and the Commission had standing to bring cases before the Court. In 1994, Protocol 9 amended Articles 44 and 48 extending standing to individuals, non-governmental organizations and groups of individuals. Individual access to the ECtHR underwent further reform in 1998. Protocol 11, which governed the major reforms to the Convention institutions, also amended Article 25 and made individual access compulsory. Following these reforms, individuals and groups were given both formal and practical access to the Court. Today, Article 34 of the Convention (Council of Europe 2010: 20) states:
The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting parties undertake not to hinder in any way the effective exercise of this right.
These evolving standing rules go hand in hand with the Court's legitimacy and expanding review powers. Serving as a beacon for human rights protection, by the mid-1980s the Court could not handle its growing caseload in an effective and timely manner. The increasing magnitude and scope of claims with the addition of 18 new contracting states (mostly new democracies) in the 1990s made institutional reforms a key priority. The result was massive reform of Convention institutions through Protocol 11 including abolishing the Commission, the Committee of Minister's adjudicative role and shifting final arbitration powers to a newly expanded Court. Prior to 1998, Article 46 was optional giving states the choice to have claims decided by an intergovernmental body rather than this independent court. This expansion in power made the Court's jurisdiction compulsory for any state adopting and ratifying the Convention.
Today, the Court maintains both power and legitimacy as a key institutional site for human rights protection in Europe. Annual number of applications assigned to the Court shows a skyrocketing docket even when controlling for the growing number of contracting states: 22 applications in 1960, 72 in 1990, and 1380 applications in 2012.Footnote 6 The Court's legitimacy may be partially attached to its comparatively high compliance rate, which is in large part due to a comprehensive and effective monitoring system that oversees the domestic execution of ECtHR decisions. The Council of Europe's Committee of Ministers and Department for the Execution of Judgments work with states to ensure the effective execution of the ruling. This can entail individual measures (damages awarded to the victim) and also implementation of general measures that will prevent violations in the future (e.g., legislative and constitutional reforms). By relegating this monitoring responsibility to an intergovernmental body, peer pressure from contracting states, while seldom used, can serve as an effective final insurance method for compliance.
Standing rules and review powers influence the opportunities for individuals and groups to participate in human rights governance. Yet, the most successful organizations are those possessing the experience, expertise, and resources for international litigation. Drawing on the legacy of legal activists who mobilized for the creation of Convention institutions in the 1950s (Reference MadsenMadsen 2007), a growing number of advocacy groups today possess the legal resources and experience to serve as repeat players before the ECtHR. Their participation includes serving as legal representation for applicants, submitting third party interventions and in some cases bringing claims as direct victim. Judges welcome the legal expertise provided by this participation bringing comparative analysis and domestic legal knowledge to the relevant human rights principles (Reference Van den EyndeVan den Eynde 2013).Footnote 7 Groups with resources and extensive international litigation expertise and experience, such as Liberty and Open Society Foundation, also play a role in educating individuals and groups about European rights and litigation strategies.Footnote 8
While the Convention today provides the legal basis for organizations to bring complaints, the standing requirements are still restrictive. Legal experience and expertise can help ensure innovative argumentation that successfully passes the Court's high bar for organizations proving direct harm.Footnote 9 The data reveal the diversity of organizations and entities that have successfully brought claims as the applicant, including church associations,Footnote 10 media groups,Footnote 11 trade unions,Footnote 12 human rights groups,Footnote 13 and many companies.Footnote 14 Disproportionately, the repeat players at the Court are organizations with the expertise, experience and resources to litigate, such as Liberty who appear in the ECHRdb data as either direct victim, legal counsel or as a third party 45 times and Amnesty International at 18 times.
Legal expertise also enables individuals and groups to play a role in widening the space for organizations to participate. Persons who are close relatives and have a valid personal interest in having the violation confirmed may bring a case. This indirect victim approach was developed through the Aksoy v. Turkey judgment.Footnote 15 The case was brought by the victim's father along with assistance of the Kurdish Human Rights project, a London based international organization specializing in strategic human rights litigation.Footnote 16 This type of indirect representation is differentiated from a third party representing a direct victim or the continuation of proceedings by a relative. Another example, is Karner v. Austria, in which the Court allowed the claimant's legal representative (nonrelative) to continue the proceedings after the applicant's death.Footnote 17 In a recent case, the ECtHR expanded this indirect victim standing to an NGO, the Centre for Legal Resources, enabling the organization to file a claim on behalf of a deceased man—justice that would not otherwise be served.Footnote 18 In light of this case law, we may see a growing role for advocacy organizations serving as applicants alongside victims.
Evolving Amicus Curiae Participation
Together, these three institutional factors standing rules, judicial review powers, and organizational expertise influenced the role of advocacy group participation in ECtHR litigation. In this section, we turn to a single area of legal mobilization to examine this participation dynamic in greater detail. Third party interventions, or amicus briefs, may function to share legal expertise, factual information, a measure of due process, or represent public interest considerations. The original Convention made no mention of third party participation, but instead it evolved over time as a dynamic interaction between advocacy organizations, the ECtHR and states.
The first request by a third party came in 1978 when the National Council for Civil Liberties requested to intervene in a case they represented earlier in the legal process.Footnote 19 The Court denied the request. The following year, the UK Government asked to intervene in the Winterwerp case against the Netherlands on the grounds it had a series of similar pending cases.Footnote 20 The UK Government admitted it had no standing to submit a brief but inquired whether Rule 38(1) of the Rules of the Court might provide the basis: “the Chamber may, at the request of a Party or of Delegates of the Commission or proprio motu, decide to hear…in any other capacity any person whose evidence or statements seem likely to assist it in the carrying out of its task.” The Chamber granted the UK leave to submit the brief. Interest organizations took notice and quickly followed suit with new requests. In 1981, the Court allowed the same third party participation to a trade union, the Trades Union Congress (TUC).Footnote 21 The Court further expanded access not only accepting the written intervention, but also allowing the TUC representative to participate in oral proceedings. The TUC brief would later be cited directly in the Court's final decision finding a violation of Article 11.Footnote 22
Following this case law, the ECtHR expanded the scope of Article 37(2) of the Rules of the Court in 1983 to allow third party participation both by states or any other person. Figure 1 depicts all amicus briefs filed in ECtHR judgments from the first in 1979 through 2012. The figure includes aggregate annual numbers in order to identify the real growth in amicus participation and the Court's growing engagement with third party interveners. Standardized numbers were calculated to verify these trends, and they identify a steady 20 percent average annual increase in amicus briefs while controlling for skyrocketing judgment rate.
Figure 1. Annual Number of Amicus Briefs Filed in ECtHR Judgments, 1979–2012.
During this time period, the Court grants 702 requests for third party interventions.Footnote 23 From the mid-1990s advocacy groups increasingly utilized this new access point to participate in the Court's law making processes. And by 1998, states codified this access through the major institutional reforms adopted through Protocol 11. Today, Article 36§2 of the Convention provides the President of the Court the discretionary power to allow third party intervention:
The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.
Likewise, Rule 44§2 from the Rules of the Court governs similar provisions on third party participation.
The data reflect these changes in participation. As mentioned earlier, the 1990s brought many changes to the Court with rapid expansion in membership and institutional reforms strengthening the Court's ability to handle the growing magnitude and scope of human rights claims. The pressure for greater third party access began in the late 1970s. The pre-2000 period depicts the amicus participation taking hold, with a low of 1 or 2 amicus briefs a year to a high of 19 briefs accepted in 1996, still at a time when the annual judgment rate is comparatively low. However, the real trend in third party participation is revealed in the post-Protocol 11 years, with a steady increase in the number of amicus briefs. Between 2000 and 2012, there are 603 third party interventions granted (12 refusals), or 86 percent of the total amicus briefs and standardized numbers also show a steady 20 percent average annual increase in amicus participation.Footnote 24 As the historical analysis identified, this growing legal mobilization was critically linked to the expanding network of NGOs sharing legal knowledge and experience on using litigation strategies in Strasbourg. Equally important was the Court's expanding powers and willingness to include third parties.
The data also give us a picture of the types of groups utilizing these new opportunities and with what frequency. Figure 2 details the number of amicus briefs filed in ECtHR judgments by organization type from 1979 to 2012. General human rights organizations make up the largest type of interveners with 85 different rights groups participating, filing a total of 274 amicus briefs. Repeat players are active amongst this organization type. The ECHRdb data identify the British groups Interights and Liberty intervened in 28 and 20 cases, respectively, and the Warsaw-based Helsinki Foundation for Human Rights intervened in 25 cases. These are highly organized groups with a clearly defined litigation campaign in which the ECtHR is one of many courts they target to push for rights reform and enforcement.Footnote 25 States also participate as a third party on the grounds that a similar case is pending in their own legal system (38 different countries intervened with 174 amicus briefs).
Figure 2. Total Number of Amicus Briefs Filed in ECtHR Judgments by Organization Type, 1979–2012.
Individuals are the next highest category with 34 different parties successfully intervening with 36 amicus brief. These individuals include family members, legal experts,Footnote 26 religious leaders,Footnote 27 and politicians.Footnote 28 Other interests include 30 different professional associations submitting 41 amicus briefs. One case in the shipping and maritime industry includes 11 third party interventions all from professional associations.Footnote 29 Specific rights organizations actively participate, including minority rights (13 organizations submitting 27 briefs) and free speech rights (14 organizations submitting 34 briefs). Similar to the pattern found in other legal jurisdictions (e.g., the US, see Reference CollinsCollins 2008), these organizations maximise their participation by intervening in cases with the potential to lead to significant developments in both European and domestic human rights law.Footnote 30 Judges recognize that this participation can serve as a legitimacy tool by including alternate perspectives to the dispute.Footnote 31 The briefs also may provide valuable domestic and comparative legal research relevant to the human rights principles invoked in the case.Footnote 32
The following cases elaborate the roles amicus briefs can play in ECtHR decision making. In the Soering case,Footnote 33 the Court's opinion referenced an Amnesty International amicus brief and the ECtHR's violation decision subsequently prevented an individual accused of a capital offense in the UK from being extradited to the United States.Footnote 34 The group Article 19's (defending freedom of expression rights) amicus briefs played a role in the Court's violation decisions and also in the dissenting opinion.Footnote 35 The European Roma Rights Centre, Interights and Justice Initiative all filed amicus briefs in the Nachova case.Footnote 36 The briefs supported the ECtHR's innovative decision by providing research supporting an expansive reading of Article 14 (prohibition of discrimination) to include a procedural element (obligation of the authorities to investigate possible racist motives). By 2012, these three groups successfully submitted 51 third party interventions to the ECtHR.
In addition to an increase in numbers, the types of organizations is also changing. Figure 3 details the annual number of amicus participant types in ECtHR judgments from 1979 to 2012. The number fluctuates and remains low in the early years and overtime there is a steady increase in the diversity of third party intervener types. From 2010 to 2012, the variation in types (14–16 different types of interveners) was double that of most years up to that time. During the first 10 years of amicus participation, the parties were largely rights organizations, some labour unions and professional associations. By the end of the 1990s and 2000s we see states, a diversity of individuals and an assortment of interest and advocacy groups actively participating in this human rights litigation. And at the end of the time period there are 20 different intervener types: business, human rights, women's rights, minority rights, freedom of expression, professional associations, religious, community organizations, media, intergovernmental organizations, labor unions, environmental, state authorities, pro-life, pro-choice, health, lobbying groups, political organizations, legal aid, education/academic experts, individuals, and states.
Figure 3. Annual Number of Amicus Participant Types in ECtHR Judgments, 1979–2012.
In sum, changes in standing rules, the Court's power, and the legal expertise and resources of advocacy organizations influence legal mobilization opportunities in the Council of Europe system. Clearly, these access points do not create an open flood gate for participation, but instead illustrate the persistence of groups to challenge constraints on the accessibility of the system and the power of the Court to increase participation over time—a decision that took place before states codified broad access. Public interest organizations are rarely a litigant before the ECtHR, given direct victim standing requirements, yet as the analyses illustrate they are increasingly playing a critical supporting role by providing valuable research through third party interventions.
Violence against Women (VAW): Expanding Protection and Advocacy Mobilization
This section examines the legal mobilization dynamic in a single area of human rights protection. The case law covers a range of issues including sexual, physical and emotional violence—from rape to domestic servitude. I explore how ECtHR decisions influence protections against violence and the role of advocacy organizations in the litigation. The data identify a shift in the balance of power as states are asked to upgrade their policies to ensure greater protection and enforceability of these rights. The case law also changes the subjects of international law by clarifying state responsibility for the actions of non-state actors. Over the last twenty years, there is a growing web of international laws governing VAW, and ECtHR litigation is prominent in this expansion.Footnote 37 The legal mobilization surrounding the ECtHR case law builds on an increasingly dense network of women's rights activists working to connect the domestic, transnational, and international protections provided for women throughout Europe (Reference Fábián and FábiánFábián 2010; Reference MontoyaMontoya 2009)
Table 1 details the European Convention articles invoked in ECtHR VAW cases by total number of claims and the violation rate between 1997 and 2014. There are 54 key VAW judgments and decisions made during this time period.Footnote 38 A single case may include multiple claims and Table 1 details the 71 claims invoked in these cases. Article 3 (prohibition of torture and inhumane treatment) is invoked in 31 claims and a violation is found in 83 percent. One notable Article 3 claim develops the legal basis for rape as a form of torture (see Aydin v. Turkey caseFootnote 39 discussion below). Article 8 (right to privacy and family life) is invoked in 15 claims and a violation is found in 93 percent of these cases. Article 8 is used both by litigants and the Court to impose positive obligations on the state requiring action to prevent non-state behavior that is particularly adverse to women (e.g., domestic violence case law including the Hajduova v. Slovakia caseFootnote 40).
Table 1. Overview of ECtHR Violence Against Women Judgments and Decisions by Convention Articles Invoked, 1997–2014
N = 54 decisions and judgments including 71 claims.
Source: Data compiled by the author from the European Court of Human Rights Database (Cichowski and Chrun 2016) and the European Court of Human Rights (2015; 2014b).
Table 2 details ECtHR VAW judgments and decisions by subfield and provides information on violation rate and percentages of cases developing human rights law. The analysis utilizes the ECHRdb significance coding which categorizes each judgment by significance in developing human rights law.Footnote 41 There are seven main subfields. Domestic violence and rape and sexual abuse make up two thirds of the case law. The scope of expulsion cases includes female genital cutting, honor crimes, trafficking, and social exclusion. Seventy-eight percent of the VAW cases ended in a violation and 67 percent either went beyond just applying the case law or made significant contributions to the development, clarification, or modification of the case law. In 1985, the ECtHR establishes rape as a violation of Art 8 (right to privacy) in the X and Y v. Netherlands case,Footnote 42 and places a positive obligation on the state to ensure practical and effective protection that includes the possibility of criminal prosecution. In 2007, the Court expands the scope of Article 3 and declares that “female genital mutilation amounts to ill-treatment contrary to Article 3 of the Convention” in the Collins and Akaziebie v. Sweden case,Footnote 43 despite deciding the asylum case was inadmissible on grounds that the claimant lacked evidence of a real and concrete risk of being subjected to FGM if returned to Nigeria.
Table 2. Overview of ECtHR Violence against Women Judgments and Decisions by Subfield, 1997–2014
N = 54 judgments and decisions.
Source: Data compiled by the author from the European Court of Human Rights Database (Cichowski and Chrun 2016) and the European Court of Human Rights (2015; 2014b).
Table 3 provides an overview of interest and advocacy group participation in ECtHR VAW judgments from 1997 to 2014 and details the organization name, type and the mode of participation (submitting an amicus brief or serving as the legal representation for the applicant). There are 15 cases that involve advocacy participation including 12 amicus briefs and 10 instances of interest organizations and advocates representing the applicants. Organizational types include academics, health, human rights groups, and legal aid. Human rights organizations were responsible for the 12 amicus briefs. Two prominent repeat players include the AIRE Centre (Advice on Individual Rights in Europe) contributing two briefs and Interights intervening in three cases in this legal domain. Each of these UK-based organizations has a long history of litigation before the ECtHR (AIRE involved in at least 40 cases and Interrights in 34 cases as identified in the ECHRdb data) and they possess the legal expertise and experience to include international litigation strategies in their reform campaigns.Footnote 44 Human rights groups, health organizations, legal aid offices, and academic lawyers served as the legal representation in these cases, assisting claims that might not otherwise reach Strasbourg.
Table 3. Overview of ECtHR Violence Against Women Judgments by Advocate and Organization Participation, 1997–2014
N = 15 judgments.
Source: Data compiled by the author from the European Court of Human Rights Database (Cichowski and Chrun 2016) and the European Court of Human Rights (2015; 2014b).
Table 3 also details the percentage of judgments ending in a violation and those that expand and develop human rights. Eighty percent found a state party in violation of the Convention, a percentage that is similar to the Court's overall violation rate of 83 percent (ECtHR 2014). Seventy-three percent of the judgments involve the Court going beyond merely applying the case law but instead make either a significant or incremental contribution to the development, clarification, or modification of the case law. Interviews conducted with ECtHR judges suggest this participation plays a beneficial role in complex decisions by providing legal research and comparative perspectives to the dispute.Footnote 45 Reference Van den EyndeVan den Eynde (2013) examines 294 amicus briefs from human rights organizations and found similar evidence for increased numbers and repeat players in the more complex cases before the ECtHR Grand Chamber. Her research finds the integral role NGOs can play in providing facts that enable the Court to hold states responsible for fundamental human rights violations.
To elaborate these VAW data, I turn to the case law. The Aydin v. Turkey rulingFootnote 46 is an example of legal activists collaborating with human rights organizations to expand the scope of protection. The Aydin case involved a 16-year-old Kurdish girl claiming ill treatment and rape while in police custody. The applicant was represented by two human rights lawyers that are repeat players before the ECtHR. Kevin Boyle and Francoise Hampson were professors of law and fellows at the Human Rights Centre at Essex University and had active careers in defending human rights.Footnote 47 Although not formally in the court records, the case received support from the Kurdish Human Rights Project, a non-governmental human rights organization based in London working for Kurdish rights around the globe (KHRP 1994). Amnesty International intervened in the case providing comparative international jurisprudence on the legal basis for rape as a form of torture. This included citing the Inter-American Commission on Human Rights, the UN Special Rapporteur on Torture and the International Criminal Tribunal for the Former Yugoslavia (APT and CEJIL 2008). Importantly, the applicant's legal argument and the amicus brief were integral to the Court expanding the scope and meaning of Article 3 and its prohibition of torture. The judgment establishes rape as a form of torture within the European Convention. Prior to this ruling, rape was often categorized as a private criminal act, under-appreciating its potential systematic use by authorities in times of war and conflict. This ECtHR case law aided by advocacy group participation expands Convention rights and goes on to be cited and play a role in the international criminal trials prosecuting rape in the Former Yugoslavia.Footnote 48
The Eremia & Others v. Moldova caseFootnote 49 is another example of strategic legal mobilization. The case involved three applicants, a woman and her two daughters, who were filing a complaint against the Moldovan authorities for failure to protect from the domestic violence and abusive behavior of their husband and father. The ruling was innovative in expanding the scope of state responsibility in domestic violence cases. The Court held there was a violation of Article 3 (prohibition of torture and inhumane treatment) for the authority's failure to provide effective protection despite knowledge of the domestic violence. It also found a violation of Article 8 (right to respect for private and family life) in respect to the daughters who witnessed the violence and were not effectively protected by local authorities from the psychological harm. The Court also expands the scope of Article 14 (prohibition of discrimination) finding that the case was not just a failure to prevent violence but the inaction by Moldovan authorities amounted to repeatedly condoning such violence, which reflects a discriminatory attitude toward the woman.
An amicus brief from the Equal Rights Trust (ERT) would prove integral to this innovative decision. The ERT is a London based non-governmental organization with a history of involvement in ECtHR and international litigation (ERT 2015). The ERT's 10-page brief argues for the recognition of domestic violence as a form of discrimination (Equal Rights Trust 2011). The brief elaborates the legal precedent for this argument drawing from the Inter-American Court of Human Rights and the United Nation's Committee on the Elimination of Discrimination against Women. Quoting the UN Special Rapporteur on Violence against Women, the ERT argues that domestic violence requires a particular state response recognizing the “discriminatory causes and consequences of this phenomenon” (Equal Rights Trust 2011:2). The ECtHR's finding of an Article 14 violation cites the ERT submission providing the basis for treating domestic violence as a form of discrimination (paragraphs 84–89, 37). The ERT directly assists the Court in this innovative expansion in human rights law. Together this case law identifies the ways advocacy group participation is critical to the enforcement and development of human rights by the European Court of Human Rights.
Conclusions
Today landmark human rights innovations and a growing network of advocacy and interest organizations characterize the Council of Europe's history. The analyses elaborate a set of institutional mechanisms that are critical to this process. Strategic legal action and ECtHR initiated and state codified Protocol 11 reforms led to changes in standing rules and the Court's power. This transformation opened the door to advocacy and interest group participation as direct claimants, legal representation, and third party interveners. The data and case law analyses identifies that advocacy group participation before the ECtHR is characterized by organizations with the expertise, experience, and resources for international litigation.Footnote 50 There is clear evidence that this activism is both collective and highly networked across human rights organizations. Liberty, the Open Society Foundation, the Russian Justice Initiative, AIRE and Interrights all offer advice, training, and workshops to build the capacity of civil society, human rights activists, lawyers, and judges to enforce and develop human rights in Europe.Footnote 51
Legal mobilization also plays an integral role in the ECtHR's decision making. The amicus curiae data reveal a growing diversity of groups—from rights organizations to professional associations—playing a direct role in the development of human rights law by providing research on human rights principles. The VAW analysis demonstrates the ways this mattered for ECtHR decision making and expanded the protections provided to women under Article 3, 8, and 14 of the European Convention. The total number of cases involving groups remains small compared to the universe of ECtHR decisions, yet the significance of the case is often high. Advocates and organizations strategically bring or participate in cases that exhibit the potential and often lead to significant contributions in the case law. Domestic level research reveals the impact ECtHR rulings can have on national policies widening the reach of this international court (Reference AnagnostouAnagnostou 2014; Reference Keller and Stone SweetKeller and Stone Sweet 2008). Future research might examine the VAW ECtHR case law in relation to changes in domestic prosecution rates similar to research on hate crime legal mobilization in the U.S. context (e.g., Reference Jenness and GrattetJenness and Grattet 2004).
The findings also suggest a set of broader questions. The Council of Europe is exceptional in many ways given its vibrant human rights legacy, court with a large case law, historical network of legal advocacy support, and general compliance amongst member states. Yet, it continues to be challenged with a growing caseload. Thousands of claims are turned away each year on admissibility grounds with critics pointing to the inability of the institution to handle the real number of violations that exist. While reforms such as the Pilot-Judgment Procedure begin to rectify this challenge, effective implementation still remains fragile given the power of states to block a system that would ensure greater constraints on national sovereignty (Reference GreerGreer 2006; Reference MowbrayMowbray 2009).Footnote 52 Clearly, the legitimacy of this dynamic process remains a fine balance between societal inclusion and domestic government support.
Looking to other global legal regimes that include a court or tribunal one can observe a gradual spread in advocacy group participation. Individuals and groups are now granted access via amicus curiae procedures to the international criminal tribunals (ICTY, ICTR) and the International Criminal Court (Reference BartholomeuszBartholomeusz 2005). Similarly, international dispute resolution and arbitration bodies are developing amicus curiae mechanisms, including the World Trade Organization's (WTO), Appellate Body and the tribunals of the North American Free Trade Agreement (NAFTA), and International Centre for Settlement of Investment Disputes (ICSID) (Reference SquatritoSquatrito 2012). And many of the older international courts, including the Court of Justice of the European Union and the Intra-American Court of Human Rights, have long histories of civil society participation and continue to see reforms in access (Reference CichowskiCichowski 2007). These trends present a theoretical and empirical challenge for future research. By expanding participation to those parties affected by international court decisions, we may enhance the accountability, legitimacy and transparency of legal institutions. Whether this intention becomes reality, remains a pressing question of our time and will be critically connected not only to state commitments, but to the mobilized groups and international courts that come to define these legal spaces.
