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The push towards compliance : domestic culture, legitimacy, and compliance with the European Court of Human Rights

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Jay, ZC ORCID: 0000-0003-3404-0783 2018 , 'The push towards compliance : domestic culture, legitimacy, and compliance with the European Court of Human Rights', PhD thesis, University of Tasmania.

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Abstract

This thesis seeks to explain why states comply with the European Court of Human Rights (ECtHR) by developing a constructivist account of how state actors use domestic ideas about rights and law to assess the legitimacy of international law. Building on the constructivist assumption that actors feel a ‘pull towards compliance’ when they believe the law is legitimate, this thesis seeks to understand where such beliefs come from, and how they translate into compliance. The thesis therefore endeavours to address three questions: First, what makes states perceive international law as legitimate? Second, how do such perceptions of legitimacy translate into decisions to comply with particular ECtHR judgments? Third, which types of ECtHR cases are states likely to comply with or resist?
The thesis advances the concept of domestic rights cultures, arguing that states’ unique historical experiences, constitutional traditions, and interactions with European and international institutions create specific understandings and expectations about what law and human rights are, and what they should be. Rights cultures thus serve as a filter through which international laws are interpreted, and as a standard against which they must be assessed, in order for state actors to determine whether particular international laws should be considered legitimate, and particular ECtHR judgments complied with.
In developing this concept, the thesis addresses two interrelated lacunae in existing theoretical explanations of compliance, where scholars of International Relations and International Law have failed both to provide a convincing account of where the legitimacy that ostensibly pulls states towards compliance comes from, and to fully appreciate domestic cultural and historical understandings of rights and law as a potential source of that legitimacy. It thus contributes a richer theoretical and empirical account of the domestic cultural and historical forces that underpin state actors’ conceptualisations of legitimacy, and motivate their decisions to comply with ECtHR judgments.
Through interpretive analysis and comparison of three case studies – the United Kingdom, Germany, and Croatia – the thesis examines the core ideas and experiences that constitute states’ rights cultures, and their effect on states’ relationships with the ECtHR and approaches to compliance with its judgments. It finds that states draw on their unique domestic understandings of rights and law not only to evaluate the legitimacy of ECtHR judgments, but – in some cases – actively rely on domestic understandings to cajole themselves towards compliance. In this way, the thesis reveals that the relationship between domestic culture, legitimacy, and international law does not necessarily generate a ‘pull’ towards compliance from the international system or the law itself, but a ‘push’, that stems from states’ domestically constructed perceptions of the legitimacy of international law.

Item Type: Thesis - PhD
Authors/Creators:Jay, ZC
Keywords: International law, compliance, legitimacy, European Court of Human Rights
Copyright Information:

Copyright 2018 the author

Additional Information:

Chapter 3 appears to be, in part, the equivalent of a post-print version of an article published as: Jay, Z., 2017. Keeping rights at home: British conceptions of rights and compliance withthe European Court of Human Rights, British journal of politics and international relations, 19(4), 842-860

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