Erik Voeten. 2008. The Impartiality of International Judges: Evidence from the European Court of Human Rights

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.

I. Introduction

• 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:
1. 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.
2. 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. 
3. 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. 

II.Hypotheses 

• Bias from legal culture ==>
1. 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)
• Bias from career incentives and geopolitics ==>
1. 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.
2. 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.
3. 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.
4. 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.
5. Judges show more leniency toward respondent governments that are important economically or politically to their home country.
• Bias from policy preferences ==>
1. 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. 

III. Data

• Independent variables
1. Legal Origin - take from la Porta el al. (1999)
2. 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 .
3. Judicial Restraint - measure of judges' ideal points, estimated from votes not on cases involving the judges' home countries. High scores indicate high levels of self-restraint. This measure is only used to explain votes on home state violations and is available only for those 97 judges who voted on at least 15 controversial votes.
4. Judicial Identity - professional identities of judges before ascending to the court taken from Bruinsma (2006) supplemented with new codings based on standard curricula vitae submitted to the Council of Europe's Parliamentary Assembly (Cafter 1998) and ECtHR's Annual Survey of Activities. This measure is available for all regularly appointed judges.
5. The opportunity cost of losing one's position - combination of adjusted measures such as GDP of a country and gross annual salary of a judge on the highest appellate court in a country.
6. Retire - indicates whether a judge could realistically expect to be subject to re-election at the end of his/her term.
7. Trade Dependence - measures the proportion of ottal imports and exports of the judge's home state with the respondent state (Gleditsch 2002).
8. UN Similarity - reflects the similarity in the UN voting records between the judge's national state and the respondent government. This measure is frequently used as a proxy for similar geopolitical interests (e.g., Gartzke 1998)
• Dependent variable - whether the judge voted in favor of the government

IV. Results

• 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. 

V. Conclusion

• 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.

Clifford Carrubba, Matthew Gabel, and Charles Hankla. 2008. Judicial Behavior Under Political Constraints: Evidence from the European Court of Justice.

Clifford Carrubba, Matthew Gabel, and Charles Hankla. 2008. "Judicial Behavior Under Political Constraints: Evidence from the European Court of Justice." American Political Science Review 102(4): 435-52.

This paper investigates how two types of political constraints (threats of noncompliance and legislative override) influence decisions by the European Court of Justice (ECJ).

I. Background

• The ECJ has established two doctrines:
1. Direct effect - individual citizens of th EU can invoke the EU law, treaties and, to a lesser extent, secondary legislation as the bases for legal claims in national courts
2. Supremacy - if national law and EU law are incompatible, it is EU law that should be applied. 
• Constraints on judicial review in democracies:
1. Threats of noncompliance
2. Legislative override

II. Hypotheses

1. The more credible the threat of override by the European Council, the more likely the court is to rule in favor of the governments' favored position.
2. The more opposition a litigant government has from other member-state governments, the more likely the court is to rule against that litigant government because the ECJ might be able to count on third-party enforcement.
• Empirically determined by the opinion of governments for or against the plaintiff on the legal issue in the case, which were indicated by submitted briefs.
3. The relationship defined in hypothesis 2 is weaker in preliminary ruling proceedings (article 234 cases) that in direct actions. That is, the Court is less sensitive to threats of noncompliance for legal issues from preliminary reference cases (Article 234 cases) than for legal issues from other sources 

III. Data and coding

• Dataset of decisions on within-case legal issues rather than cases themselves.
• Each observation in the dataset is a legal issue disposed of by the ECJ when it decides a case. If a case deals with multiple legal  issues, there are recorded as separate observations.
• The data, as coded, allows the authors to examine both types of threats simultaneously and evaluate their relative influence on judicial behavior; allows an empirical comparison of the two constraints in the same judicial setting.
• Dependent variable in all the models:
• 1 if the ECJ rules in favor of the plaintiff; 0 if the ECJ rules against the plaintiff.

IV. Model Specifications

1. Test for the override threat:
• Ruling for Plaintiff_i = β₀ + β₁ Net Obs_i + ΓZ_i + e_i
2. Test for the override and noncompliance threats simultaneously:
• Ruling for Plaintiff_i = β₀ + β₁ Net Obs_i + β₂ GovLit_i + β₁ Net Obs_i*GovLit_i + ΓZ_i + e_i
3. To isolate legal issues where primarily noncompliance is at issue, the following model is estimated for all legal issues due to infringement proceedings under Article 226:
• Ruling for Plaintiff_i = β₀ + β₁ Obs for Plaintiff_i + β₂ Obs for Defendant_i + ΓZ_i + e_i
4. The model 3 is also used to isolate legal issues where primarily a threat of override is at issue by focusing on legal issues where neither the plaintiff not the litigant is a member-state government and where the legal issue pertains to a question brought under article 234, a request for a preliminary ruling form a national court. Noncompliance is not a concern in this case because there is no government litigant.
5. Test for hypothesis 3:
• Ruling for Plaintiff_i =  β₀ + β₁ Net Obs_i + β₂ Net Obs_i*GovLit_i + β₃ Net Obs*GovLit_i*Article234_i+ ΓZ_i + e_i
• The model specification is the same as in model 2, with the exception of the dummy variable Article234_i indicating whether a legal issue is from a preliminary ruling case. However, to test hypothesis 3, separate effects for net observations when a government is a litigant in a preliminary ruling case and when a government is litigant but not in a preliminary ruling case are estimated.

• i indexes legal issues, Net Obs is the net weighted observations/governments in favor of the plaintiff, GovLit is a dummy variable for the presence of national government as a litigant, Z is the vector of control variables, and e is the error term. The weights are the vote share of the member-states under qualified-majority voting in the Council of Ministers, which is highly correlated with the measures of member-state economic characteristics that reflect their ability to impose economic sanctions for noncompliance, such as national share of intra-EU trade and EU Gross Domestic Product.
• Obs for Plaintiff indicates the number of government observations for the defendant and Obs for Defendant indicates the number of government observations for the defendant, all weighted by national vote share in the Council of Ministers.

V. Empirical Results

• Model 1 is consistent with the first hypothesis since β₁ > 0.
• The probability of a ruling for the plaintiff increases with the net number of weighted observations for the plaintiff.
• As the likelihood rises that a coalition of member-states could form to override a ruling in favor of the defendant, the Court is more likely to rule for the plaintiff.
• Model 2 results comport with the second hypothesis since the conditional coefficient (β₁ + β₃) > β₁ > 0.
• The marginal effect of net weighted observations for the plaintiff is positive when a government is not a litigant and net weighted observations have an additional positive impact on ECJ rulings when a government is a litigant. 
• The additional effect of observations when a government is a litigant is generally greater than the effect of observations when a government is not a litigant.
• From Models 1 and 2, on average, threats of noncompliance have a greater impact on ECJ rulings than threats of override. This is not surprising because threats of noncompliance are easy to execute relative to threats of override.
• Model 3 results are consistent with the expectations: β₁ > 0, β₂ ≤ 0, and β₁ ≥ |β₂|.
• Weighted observations for the plaintiff have a positive and statistically significant effect on the probability the ECJ rules for the plaintiff.
• Weighted observations for the defendant have no statistically significant effect on ECJ rulings for the plaintiff.
• When a government is a litigant, net observations for the plaintiff in the postive range include infringement proceedings with observations for the plaintiff in the positive range include infringement proceedings iwth observations for the plaintiff, which are highly influential on the Court
• Infringement proceedings with the net observations for the defendant primarily involve observations for the defendant, which are not influential on the Court's rulings. 
• Model 4 results are consistent with the expectations: β₁ > 0, β₂ < 0, and β₁ + β₂ = 0.
• For legal issues from Article 234 cases with no government litigant, observations for the plaintiff and the defendant influence ECJ rulings in the expected directions and the effects are statistically significant. 
• The null hypothesis that the sum of the two effects previously mentioned is zero is cannot be rejected.
• Model 5 coefficients are inconsistent with expectations, which are (β₁ + β2) < (β₁ + β₂ + β₃), but standard errors are too large to determine significance for all coefficients.

VI. Conclusion

• Threats of noncompliance have a greater impact on ECJ rulings than threats of override.
• Results indicate that political constraints systematically shape ECJ rulings.
• The alternative interpretation: if legal precedent, the quality of the legal argument, or the content of relevant treaty articles favor a particular litigant, we would expect the Court, ceteris paribus, to favor that litigant. And, while government observations plausibly act as indicators of government preferences over legal issues, they may also signal the quality of each litigant's case on the merits. If so, then the better the case on the merits for a litigant, the more likely it is that governments will submit observations agreeing with that litigant's position and that the Court will rule for that litigant. So may be positive correlation between government observation and Court rulings even if the Court is not responding to government threats of override or non-compliance.