Erik Voeten. 2008. "The Impartiality of International Judges: Evidence from the European Court of Human Rights." American Political Science Review 102(4): 417-33.
The paper examines international judicial behavior in the context of the European Court of Human Rights (ECtHR) and evaluates the conditions under which judges are more and less likely to display national bias and whether ECtHR judges are more benevolent toward respondent governments that share political or economic relationships with their national governments.
The primary objective of this article is not to estimate the overall effect of national bias but to examine whether there are systematic differences in the voting of judges that are revealing about potential underlying biases in their decisions and why some judges make different choices than their colleagues.
- The ECtHR evaluates complaints by individuals that their government has violated one or more provisions of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms or its protocols after those individuals have exhausted domestic legal remedies.
- They make:
- rulings on direct actions against member states in the EU
- preliminary rulings on issues referred to them by a national government's judiciary to interpret EU law
- Three plausible sources of bias in international judicial behavior:
- Legal Culture - judges may systematically assign different meanings to the same legal rules because they have internalized modes of legal reasoning specific to their domestic legal cultures.
- Career Incentives and Geopolitics - although ECtHR judges are not formally representatives of their governments, they do have incentives to behave as such (e.g., six-year renewable terms). Judges who feel threatened in their career prospects may be tempted to rule based on the national interests of their home governments.
- Policy Preferences - ECtHR judges may have personal policy preferences that influence how they evaluate cases, in a way similar to that in which political scientists generally presume that U.S. Supreme Court justices are motivated by policy.
- Bias from legal culture ==>
- Judges who spend a long time away from their home country in the relative isolation of Strasbourg may well internalize the norms of the court, including impartiality, which is a strong norm in most international judicial contexts. So the longer a judge has served on the ECtHR, the more that judge becomes divorced from affinity toward the homeland. (Socialization hypothesis)
- Since the salary of an ECtHR judge is high in comparison to what legal practitioners earn in many European countries, economic concerns may affect the desire of sitting judges from such countries to get renominated to the Court and create a bias against wealthier countries.
- If judges vote for their home governments because they fear that doing otherwise would threaten their reappointment changes, then judges nearing compulsory retirement age should be less likely to show national bias than should other judges.
- If governments successfully select and reselect loyal judges, the sample of judges who have served multiple terms should be biased toward those who reliably represent the government's interests. So contrary to the socialization hypothesis, the career perspective suggests that judges who have served on the court longer are more likely to display national bias.
- If judges care about how decisions affect their careers, they may be especially likely to display national bias on politically sensitive cases. Article 3 issues (human rights, torture, etc) are more likely to invite dissents by national judges than are judgments on other articles.
- Judges show more leniency toward respondent governments that are important economically or politically to their home country.
- If judges are motivated by policy, judges who are predisposed toward activism when they evaluate other nations should display these tendencies also in cases involving their home governments.
- Independent variables
- Legal Origin - take from la Porta el al. (1999)
- Judicial Independence
- De jure independence constructed from institutional characteristics of tenure and the judicial appointment process (La Porta el al. 2004).
- De facto independence as assessed by a survey of 75 country experts (Feld and Voigt 2003). Its effects are estimated in an equation separate from the de jure independence effects because it is only available for 24 (or 19? ambigious, see page 423, top of second column) countries in the sample .
- The vote choices of non-nationals had a strong and significant effect on the likelihood that judges favor their governments.
- As the proportion of judges on the panel who find in favor of the government increases, the likelihood of the national judge finding in favor of a violation also increases.
- If no non-national judge favored the respondent government in a case, then the national judge was 38% less likely to find in favor of her government, holding all over variables at their means and modes.
- There is no statistically significant evidence that judges are more likely to favor their government when their vote is pivotal.
- Judges from countries with less attractive alternative career opportunities are not significantly more likely to favor their governments.
- Judges were about 35% more likely to vote in favor of their national governments when the alleged violation was one of the 127 Article 3 violations in the data. The results support the notion that judges are subject to increased pressure on controversial cases that directly deal with the security of a country.
- There is consistent evidence that judges are motivated by policy considerations. The proxies for judicial preferences have strong and significant effects on observed vote choices.
- There is no evidence that legal cultural and geopolitics are important sources of bias among ECtHR judges.
- There is evidence that EctHR judges are political actors in the sense that they have policy preferences that shape their choices.
- National bias matters and appears to be greater on politically sensitive issues.