Between Forbearance And Audacity: The European Court Of Human Rights And The Norm Against Torture

When international courts are given sweeping powers, why would they ever refuse to use them? The book explains how and when courts employ strategies for institutional survival and resilience: forbearance and audacity, which help them adjust their sovereignty costs to pre-empt and mitigate backlash and political pushback. By systematically analysing almost 2,300 judgements from the European Court of Human Rights from 1967–2016, Ezgi Yildiz traces how these strategies shaped the norm against torture and inhumane or degrading treatment. With expert interviews and a nuanced combination of social science and legal methods, Yildiz innovatively demonstrates what the norm entails, and when and how its contents changed over time. Exploring issues central to public international law and international relations, this interdisciplinary study makes a timely intervention in the debate on international courts, international norms, and legal change. Cover Half-title page Endorsements Series page Title page Copyright page Dedication Contents List of Figure List of Tables Foreword Acknowledgements Funding Statement List of Abbreviations Introduction: The Court Redefines Torture in Europe Case Selection: Positive Obligations under Article 3 and the European Human Rights System Charting the Transformation of the Norm against Torture and Inhuman or Degrading Treatment Toward a Theory of Court-Effectuated Legal Change Methodological Approach The Framework of Analysis Theoretical Expectations Determinants of Forbearance and Audacity Conditions for Audacity Contributions The Structure of the Book 1 The Conditions for Audacity The Core Component: Discretionary Space Determinants of the Width of Discretionary Space: State Control Negative Feedback and Signaling Strategies for Institutional Survival and Resilience: Between Tactical Balancing and Trade-Offs Contributing Factors for Increased Audacity Conclusion 2 Inside the Court: Its Trade-Offs and Zone of Discretion Who Is the Court? European Court at Different Phases of Its Existence The Old Court, 1959–1998: An Institution Built upon a Compromise The New Court: From Euphoria to Reform Conclusion 3 Mapping Out Norm Change Disaggregating Norms Types and Modes of Change Measuring Audacity and Forbearance Data Collection and Analysis Selection and Categorisation Rules Mapping Out the Anti-torture Jurisprudence Measures of Audacity and Forbearance Conclusion 4 From Compromise to Absolutism? Gradual Transformation under the Old Court’s Watch The Genesis of the Prohibition of Torture under the Convention The Greek Case (1969) and the Modern Understanding of Torture and Inhuman or Degrading Treatment The Old Court Setting the Bar after the Greek Case Case #1: Ireland v. the United Kingdom (1978) and the Five Techniques Case #2: Tyrer v. the United Kingdom (1978) and the Living Instrument Principle What Comes after Tyrer? The Old Court’s Cautious Audacity in Soering Conclusion 5 New Court, New Thresholds, New Obligations Lowered Thresholds for Torture Lowered Thresholds for Inhuman or Degrading Treatment Against the Ticking Time Bomb Scenario: The Prohibition of Torture Is Absolute The Dawn of Positive Obligations Limits of Progress under the New Court Conclusion 6 Change Unopposed: The Court’s Embrace of Positive Obligations Legal Reasons behind Positive Obligations Sociopolitical Reasons behind Positive Obligations I The Inception of the New Court with a Wider Discretionary Space II Congruity of Positive Obligations with Societal Trends in the Aftermath of Eastward Expansion III Legal Principles and Jurisprudence in Support of Positive Obligations IV Active Promotion by Civil Society Groups Conclusion 7 Legal Change in Times of Backlash Brief History of the Reform Process The Influence of the Reform Process on the Court Selective Forbearance: Argument and Findings A Bifurcated Approach and Selective Forbearance through Landmark Rulings What Judges Think about Political Pushback and Future Directions of the Norm’s Trajectory The Backlash Debate Conclusion 8 Conclusion Theoretical Framework and Methods The Old Court (1959–1998) The New Court (1998–2010) The Reformed Court (2010–Present) Findings Contributions Taking Stock and Going Forward: Legal Change Elsewhere Bibliography Index