Dave Smith was a construction worker in the United Kingdom who devoted years of his life to developing his skills in the construction industry. Despite his experience, in the late 1990s Smith suddenly began to see his applications for new contracts rejected. Unable to find a project that would take him on, he was forced to give up his career completely by 2001. Smith had always heard rumors among fellow construction workers about an employer-run list of workers active in the trade unions, but nobody he knew had concrete evidence of it. It wasn’t until an official investigation was commissioned in 2009 that the rumors were confirmed: Several firms across the industry had colluded in compiling a massive roster of names – a blacklist – of the union workers deemed likeliest to push for better and safer working conditions. A raid of the Consulting Association by the UK’s national data protection authority, the Information Commissioner’s Office (ICO), revealed that forty-four companies – including several major multinational corporations – had conspired in the blacklisting of more than 3,200 people.
A blacklist this extensive required collaboration among several actors. Construction firms collected information on workers without their knowledge or consent and reported it to the Consulting Association, which was founded and funded by construction firms to run organizational operations by systematically compiling, analyzing, and selling data about workers. Firms could then purchase these data, including names of workers deemed “troublemakers, criminal elements or other undesirable people,” for use in their hiring and firing decisions (Department for Business, Innovation and Skills 2009: 9). Investigations into blacklisting later showed that undercover police officers regularly provided information to the Consulting Association regarding the political activities of workers. The institutional effort was complex and layered, but the effects were simple: Employees who had raised their voices on health and safety issues in the workplace and/or were active in the trade union movement lost their jobs and essentially became unemployable. Smith’s own file reached thirty-six pages, documenting such offenses as filming unsafe working conditions and sharing the footage with the press (Smith v. the United Kingdom 2017, para. 7).
As a result, thousands of workers like Dave Smith went unemployed for years or were forced to look for jobs as unskilled workers, unable to seek employment in the industry to which they had devoted years of work. Workers seeking state remedy were further frustrated by the weakness of domestic laws on blacklisting. In the aftermath of the raid, only the Consulting Association head, Ian Kerr, was officially prosecuted for breaching the workers’ privacy. Kerr’s penalty was a £5,000 fine, which was swiftly paid off by one of the blacklisting firms in exchange for his agreement to take the blame and keep the blacklisting companies’ names out of the court hearings.Footnote 1
Several aspects of this story stand out. These include the extent and nature of blacklisting in a country that has long expressed a commitment to democratic values and the protection of individual rights, the discovery of police complicity in the crime, the inability to prosecute the blacklisters under British law, and the devastation of the targeted workers’ careers and livelihoods. But it was not just the scale or the severity of these crimes that is noteworthy, it is also the response of those it victimized. After losing their cases in domestic courts, Smith and one other worker, guided by their lawyers, decided to pursue remedies at the international level and applied to the European Court of Human Rights (ECtHR, or the Court) (Smith v. the United Kingdom 2017; Brough v. the United Kingdom 2016).
The blacklisted workers’ cases were part of a rapidly developing case law on trade union rights at the post-2000 ECtHR. In response to a new deluge of cases across the continent, the ECtHR set precedents that for the first time recognized basic trade union rights – including the rights to organize, bargain collectively, and strike – as fundamental human rights. This emerging case law culminated in Demir and Baykara v. Turkey (2008), which concerned a labor dispute caused by the failure of a municipal council to fulfill its obligations under its collective bargaining agreement with the public sector workers’ union. The claim emerged in 1993 when the Turkish public sector workers were striving to unionize for the first time since the violent 1980 coup crushed all trade union activism in the country. The Turkish courts dismissed the case, ruling that, according to Turkish laws, public servants were not even permitted to form a union, let alone engage in collective bargaining. In a landmark judgment, the ECtHR reversed its earlier jurisprudence and recognized collective bargaining as “an essential element” of the right to association (Article 11).
The development of this trade union rights case law, which has garnered little attention from social scientists, is surprising for at least two reasons. First, an overwhelming majority of ECtHR cases come from Turkey, followed by cases from the UK. These two countries are an unlikely couple to be leading the labor case law: One is a repeat offender before the ECtHR with the highest number of violation rulings on all issues, the other is a liberal democracy and a drafter of the European Convention on Human Rights (the European Convention or the Convention). The high number of cases, some of which set important precedents, coming from these two countries compels us to look beyond regime type and economic development to understand the conditions that drive workers to look for remedies at the international level.
Second, labor and human rights are strange bedfellows. For decades, most workers avoided litigation as a strategy that took too long and tended to individualize and depoliticize the collective nature of workers’ claims. Instead, they preferred to resolve their issues as an extension of their collective identity, through rank-and-file mobilization. Litigation at an international court was barely a consideration for organized labor. And for good reason: As a court established to protect civil and political rights with no clear mandate on labor rights, the ECtHR dismissed the few labor rights claims brought before it during the first four decades of its existence. What, then, explains organized labor’s sudden embrace of international litigation? Does the developing labor case law at the ECtHR signal a new era for labor activism?
The first part of this book traces the struggles of British and Turkish unionists and lawyers as well as the changing political power and jurisprudence of the ECtHR to show how the Court has become a new terrain for labor activists to seek remedies for the violation of workers’ rights. Despite major differences between these countries, common features motivated organized labor in both countries to turn to litigation at the ECtHR. Although not without reservations, labor activists in both countries have seized on the ascendence of human rights at a time when neoliberal policies have curbed the power of organized labor since 1980. Labor lawyers played key roles in this process by drawing workers’ attention to the emerging legal opportunities at the international level and leading strategic litigation efforts.
The second part of the book turns to pressing questions concerning the impact of these legal mobilization efforts. Do these landmark rulings on trade union rights merely serve as “window dressing” (Keith Reference Keith2002), or do they actually improve the lives of workers on the ground? To what extent do states implement rulings issued by a distant international court? Are workers wasting valuable resources and energy on litigation efforts when they could be pursuing more effective tactics, like rank-and-file mobilization? Can human rights law and institutions become counter-forces against the declining power of organized labor?
At first glance, there is hardly any reason to be hopeful about the prospects of human rights litigation for workers. The ECtHR took eleven years to decide on the Demir and Baykara case, and when the period required for exhausting the domestic remedies, is included, the workers had to wait for fifteen years for legal proceedings to be completed. By the time the ECtHR delivered its judgment, the government had already granted public sector workers the right to unionize and the right to engage in collective bargaining. On the surface, these legal reforms cannot be attributed to the landmark ruling of the ECtHR. The blacklisted workers in the UK had even less obvious reason to cheer the ECtHR, as the Court eventually dismissed both of their cases. All told, the ECtHR appears to offer little more than a “hollow hope” (Rosenberg Reference Rosenberg2008; see also Gearty Reference Gearty, Mantouvalou and Gearty2010).
A closer inspection of the dynamics on the ground, however, reveals a different picture. A year after the ICO findings, Smith read a report on blacklisting written by a prominent labor scholar and lawyer, Keith Ewing (Reference Ewing2009a). In the report, Ewing drew attention to the weakness of domestic laws and pointed to how the UK was violating its obligations under the European Convention and ECtHR case law. After reading the report, Smith had a “eureka!” moment: The best way to draw public attention to their plight would be by framing the issue as a human rights scandal.Footnote 2 Smith joined forces with other blacklisted workers to establish a grassroots organization called the Blacklist Support Group (BSG) committed to claiming workers’ rights as human rights. Smith was a labor organizer not a lawyer: The series of campaigns launched by this new group fought for their rights in multiple venues, from rallies in front of the parliament building with other human rights activists to inventive protests outside the headquarters of blacklisting firms. As a result, the BSG was able to leverage policy changes, initiate a public inquiry into police surveillance, and win a multimillion-dollar civil settlement from the blacklisting companies. Most of these developments occurred before the ECtHR even issued its final rulings. Indeed, the ECtHR dismissed the cases due in part to the remedies workers had already received from a domestic court. In Turkey, too, the availability of an international enforcer sparked mobilization by providing public sector workers safeguards against state repression in a post-coup environment and legitimacy to their claims to unionize. Workers initiated a massive mobilization campaign through which they pressured the government to undertake legal reforms recognizing some basic trade union rights before the landmark ruling of Demir and Baykara.
These cases draw our attention to an often neglected factor in studies assessing the impact of human rights courts: the power of grassroots mobilization. The direct remedies provided by international courts often come too late to offer much relief to the applicants named in the suit. And international courts lack strong enforcement mechanisms to persuade states to undertake structural changes that would prevent future violations. Yet the transformative impact of international courts can be activated indirectly. Litigation at the international level can serve as a catalyst for grassroots mobilization, generating momentum for change. When activists build a movement in conjunction with litigation efforts, they secure tangible gains even before the court issues its final judgment.
At the same time, labor’s engagement with the ECtHR demonstrates a new approach to human rights: the strategic mobilization of human rights. Workers do not target courts out of a love of litigation or an ideological commitment to universal rights. They invoke international law because it helps them advance concrete goals. The availability of an international enforcer gives legal backing to activists’ demands, facilitates recruitment and coalition-building, and provides a resonant frame for gaining visibility in political environments hostile to labor. However, despite adopting human rights language in their public campaigns or recruitment efforts, workers are skeptical of using human rights frameworks. In planning meetings, social media groups, and social hours, they still form their collective identity and solidarity ties around class-based themes rather than human rights.
I draw these conclusions based on two types of original data. First, I constructed the Strasbourg Labor Cases Database (StrasLab), which compiles sixty years of ECtHR case law on labor rights (n = 1,161). This is the first cross-national, longitudinal database to systematically identify and categorize the ECtHR’s rulings on labor issues. Second, in order to examine why workers turn to international litigation and how ECtHR rulings affect them on the ground, I conducted fieldwork in Turkey and the UK and collected in-depth data on two labor movements. These sources combined provide a comprehensive account of the causes and consequences of workers’ legal mobilization at an international court.
1.1 A New Era of Activism for Labor: Claiming Labor Rights as Human Rights
When two Turkish union leaders, Kemal Demir and Vicdan Baykara, complained to the ECtHR about the blanket ban against public sector workers’ right to engage in collective bargaining in 1993, they did not have high hopes of winning their case. The only article with explicit reference to trade union rights is Article 11 on the freedom of assembly and association. But at the time, the ECtHR did not have a single violation judgment on cases brought by trade unionists.Footnote 3
The ECtHR’s reluctance to recognize trade union rights in its early years was not surprising. Established in the aftermath of World War II, the Council of Europe (CoE) followed the dominant human rights framework at the time, privileging civil and political rights such as freedom of expression or prohibition of torture, while delegating the protection of socioeconomic rights to the European Committee on Social Rights (ECSR) with a much weaker monitoring system.Footnote 4 The few cases workers filed during the ECtHR’s first four decades were all dismissed.Footnote 5 Labor activists, in turn, spent this period prioritizing rank-and-file mobilization to address their grievances. Seeking recourse at an international institution was not an option they considered.
The conditions that led a skeptical group of activists to turn to an international court for relief constitute the first theme of this book. I suggest three factors to explain this tactical shift to international litigation in the post-1990 period. First, political opportunities for organized labor started to close off with the ascendance of neoliberal policies. As governments implemented policies that structurally disempowered – or, in more authoritarian contexts, violently repressed – trade unions, labor activists’ ability to advance their grievances through democratic or judicial channels at the domestic level became severely restricted. In response to their waning strength, organized labor adopted various revitalization strategies, such as restructuring organizations, building coalitions with other grassroots activists, partnering with employers or governments, and establishing transnational links with unions abroad (Baccaro, Hamann, and Turner Reference Baccaro, Hamann and Turner2003; Frege and Kelly Reference Frege and Kelly2004; Ibsen and Tapia Reference Ibsen and Tapia2017; Seidman Reference Seidman2007). One of the understudied responses of unions in countries where organized labor experienced a sharp decline was seeking legal remedies at an international court. Domestic repression – whether through policy or by force – constitutes a major “push factor” that brought unionists’ claims to the Court.
During the same period, international courts rose to prominence by weighing in on an increasingly broad range of important policy issues. The rapid expansion of the labor case law at the ECtHR can be viewed as part of this broader trend of “judicialization” or the “rights revolutions” unfolding at international courts (Alter Reference Alter2014; Hirschl Reference Hirschl2008; Kelemen Reference Kelemen2011; Stone Sweet and Shapiro Reference Stone Sweet and Shapiro2002). Over the past thirty years, the ECtHR’s case law has exploded in both volume and significance as the Court has increasingly addressed contentious issues such as women’s right to wear a headscarf, the treatment of terrorism suspects, and prisoners’ right to vote. During this period, the ECtHR became “the supreme European Court” shaping policy outcomes across the continent (Madsen Reference Madsen2016). Most studies on human rights, including those on the ECtHR, focus on how historically marginalized groups have turned to these institutions, with particular attention to civil and political rights. Despite the increasing number of studies on legal mobilization at the ECtHR (Anagnostou Reference Anagnostou2013; Cichowski Reference Cichowski2016; Hodson Reference Hodson and Anagnostou2014; Kurban Reference Kurban2020; Sundstrom, Sperling, and Sayoglu Reference Sundstrom, Sperling and Sayoglu2019; Van der Vet Reference Van Der Vet2012), we lack a study that examines the social and political causes of the unexpected growth of the Court’s trade union rights case law.Footnote 6 The emergence of the ECtHR as an influential actor in policymaking at the international level constitutes a “pull factor” that made the Court newly attractive to labor activists and their lawyers.
In response to the early trade union rights cases brought before it, the ECtHR was initially more deferential to member states, leaving the settlement of these contentious issues to national courts. But after gaining confidence and experience on a wide range of issues throughout the 1990s, the Court became more receptive to new rights claims. The violations faced by trade union members resonated easily with the ECtHR as breaches of freedom of association (Article 11). The workers’ need to find remedies beyond domestic channels coincided with a period of expanding ECtHR jurisprudence and growing responsiveness to new rights claims. Consequently, the push from repressive domestic regimes in the post-1980 period, coupled with the pull of a stronger international human rights court, created appropriate conditions for workers to seek remedies at the international level.
International courts, however, are not in the usual toolkit of activists operating at the domestic level. For organized labor – a group accustomed to resolving labor disputes through traditional bargaining and collective action tactics – resort to long-term litigation at an international court constitutes a highly unexpected course of action. An explanation based solely on structural changes leaves unanswered the question of how workers became aware of remedies at the international level. Furthermore, the ECtHR, as an institution designed as a civil and political rights court without any favorable rulings on labor rights at the time, was not an obvious choice for labor activists. Workers had other venues to consider, many of which could be expected to have more applicable law, if not ideological sympathy, for their claims. The International Labor Organization (ILO) and the Court of Justice of the European Union (CJEU), for example, both have provisions that explicitly protect trade union rights. The ILO, in particular, has a clear institutional commitment to advancing unions’ concerns. However, my comparative case studies and case law analyses show that workers rarely chose these other institutions to seek remedy. A second related question, then, is the workers’ choice of target institution for legal mobilization: Why did labor activists choose the ECtHR over other international institutions?
I show that a small group of lawyers facilitated workers’ legal mobilization by probing different international legal institutions to identify the right venue for unions, directing labor activists’ attention to international courts, and leading strategic litigation efforts. In so doing, this research contributes to studies that emphasize the agency of lawyers in leading legal mobilization. New rights claims, buttressed by strong legal argumentation and compelling evidence prepared by expert lawyers, not only expand international courts’ jurisprudence into new issue areas but also steer the direction of this expansion by shaping court dockets (Caserta and Madsen Reference Caserta and Madsen2024; Cichowski Reference Cichowski2007; Duffy Reference Duffy2018; Haddad Reference Haddad2018; Hodson Reference Hodson and Anagnostou2014; Kurban Reference Kurban2020; Pavone Reference Pavone2022; Sundstrom Reference Sundstrom2014; Van der Vet Reference Moustafa2018). The majority of the existing literature on international legal mobilization, however, explains why and how lawyers engage in litigation at a single international court. Despite a growing literature on regime complexity and forum shopping by private actors at the international level (Busch Reference Busch2007; Gomez-Mera and Molinari Reference Gomez-Mera and Molinari2014; Hafner-Burton, Victor, and Lupu Reference Hafner-Burton, Victor and Lupu2012), we know little about how lawyers navigate a landscape of multiple international institutions to identify the best venue for advancing their claims. Findings in this book advance the study of legal mobilization by demonstrating how lawyers operate in a field of international legal pluralism. This process of strategic litigation at the international level is based on lawyers’ legal expertise on the institutional features of these bodies, as well as their evaluations informed by prior litigation experience.
1.2 Beyond Compliance: The Mobilizing Power of Human Rights Litigation
The first part of the book shows how organized labor in Europe identified a new way to combat precarious work conditions and restrictions on unionization. But is litigation at the ECtHR an effective strategy? What tangible impact do international rulings have for aggrieved workers on the ground?
1.2.1 Conventional Wisdom on the Impact of Human Rights Regimes
There is hardly a consensus among scholars on the impact of international human rights institutions. Established as “the crown jewel of the Council of Europe” in the aftermath of World War II in order to promote democracy and human rights in Europe (Madsen Reference Madsen2007: 148), the ECtHR is often regarded as a highly effective human rights court (Alter, Helfer, and Madsen Reference Alter, Helfer and Madsen2016; Hillebrecht Reference Hillebrecht2014; Stone Sweet and Keller Reference Stone Sweet, Keller, Keller and Stone Sweet2008). In 2020, the CoE proclaimed the ECtHR a leading force “in maintaining and fostering democratic stability across the Continent” and highlighted its “extraordinary contribution … to the protection and promotion of human rights and the rule of law in Europe.”Footnote 7 Studies on compliance with ECtHR rulings confirm the CoE’s proclamation, demonstrating that Court rulings shape state behavior and facilitate policy changes across Europe (Helfer and Voeten Reference Helfer and Voeten2014; Stiansen Reference Stiansen2019). Many scholars argue that increased litigation at international human rights courts over the past few decades – in Europe and beyond – has helped protect the rights of marginalized groups against state oppression, bring human rights violators before justice, and facilitate democratization in transitioning regimes (Alter Reference Alter2014; Brysk Reference Brysk2000; Cichowski Reference Cichowski2016; Duffy Reference Duffy2018; Engstrom Reference Engstrom2019; Simmons Reference Simmons2009).
Pessimists – also referred to as realists – argue, on the other hand, that human rights commitments of states are “empty promises” and that states avoid making structural changes that would produce substantive impact at the domestic level (Hafner-Burton and Tsutsui Reference Hafner‐Burton and Tsutsui2005; see also Hathaway Reference Hathaway2002; Vreeland Reference Vreeland2008). Posner (Reference Posner2014) declares that the human rights project failed spectacularly: International institutions, including the ECtHR, are too feeble and lack the resources necessary to compel states into compliance. Case studies on the ECtHR raise similar concerns in less alarmist language: Member states often find ways to superficially comply with the letter of the law while evading structural reforms that would provide meaningful protections (Anagnostou Reference Anagnostou2013; Búzás Reference Búzás2021; Kurban Reference Kurban2020; Von Staden Reference Von Staden2018).
Many labor scholars are also skeptical about the promises of human rights, albeit for different reasons. Some point out that human rights law undermines the collective nature of labor claims by encouraging workers to seek remedies for their individual problems on their own rather than engaging in rank-and-file mobilization (Savage and Smith Reference Savage and Smith2017). Others lament the concurrent development of neoliberalism and human rights, pointing out the lack of remedies the latter provides for rising global inequality. After all, human rights gained prominence in the late 1970s, precisely when welfare states started to retreat from their redistributive role and corporations’ increased demand for flexible labor left workers in a vulnerable position.Footnote 8 In this telling, human rights at best shadowed neoliberalism as a “powerless companion,” providing few tools to combat these restrictive policies (Moyn Reference Moyn2018: 180). At worst, human rights served to legitimize structural injustices by becoming an “ideological alibi” of market fundamentalism (Hopgood Reference Hopgood2015: 2).Footnote 9 While human rights became the dominant framework for advancing social justice claims globally, these scholars argued, its narrow focus on establishing a minimum floor of human protection depoliticized and curbed the ambitions of most other social movements, including labor movements (Baxi Reference Baxi2008; Rajagopal Reference Rajagopal2003). Consequently, there is nothing to celebrate about the human rights revolution from the perspective of labor (Gill Reference Gill1995).
1.2.2 A Grassroots Theory of International Legal Mobilization
The pessimists are to a degree right. Reforms taken by states in compliance with court rulings often fail to fulfill the expectations of trade unionists. In most cases, states undertake the minimum requirements to appease Court officials and manage to close the supervision of the case without taking robust measures that would prevent future violations. Moreover, due to the excessive length of legal proceedings at international courts and the supervision process, these changes in state behavior often come too late – a decade or two after the initial violation occurred – to provide any actual remedies to the applicants.
But they are also wrong, because they fail to look beyond the direct remedies to understand the real impact of international courts. Litigation at an international court can instigate grassroots mobilization on the ground. The possibility to litigate at an international court can give activists new resources and motivation to launch their movement when domestic institutions are unresponsive to their demands. It can also recruit new members to the movement by providing safeguards against state repression. The case studies in this book show that, rather than waiting for a final ruling from the ECtHR, activists simultaneously engage in multiple forms of activism, including street protests, marches, lobbying, social media activism, as well as new domestic litigation campaigns with references to human rights law. Human rights litigation provides activists a whole new set of opportunities and resources to advance their agenda, such as a globally resonant discourse to frame their grievances, new tools for tactical innovation, support from sympathetic political or judicial elites, legal backing and legitimacy to their claims to recruit new members, and alliances with other human rights groups to expand their movement. Consequently, rather than having a depoliticizing effect on workers, as some critics have cautioned, human rights law can arm activists with new resources to build and amplify grassroots mobilization.
At the same time, I find that workers do not completely buy into the promise of law and instead engage in strategic mobilization of human rights. Aware of many of the limitations of human rights institutions, they use human rights as a means to an end. They incorporate human rights language in their mobilization efforts in order to achieve specific goals, such as gaining the sympathy of an audience or, in repressive environments, mitigating the fears of government retaliation among new recruits. But they define themselves primarily as workers and labor activists, rather than as human rights activists. Labor’s commitment to human rights is purely pragmatic; activists are ready to break their ties with human rights when they no longer serve a purpose.
The findings from Part II of the book advance scholarly debates on the impact of human rights courts, legal mobilization, and labor politics in several important ways. First, this book builds on efforts to understand the importance of domestic politics in giving effect to human rights law and institutions (Alter Reference Alter2014; Dai Reference Dai2007; Dancy and Michel Reference Dancy and Michel2016; González-Ocantos Reference González-Ocantos2016; Haglund Reference Haglund2020; Hillebrecht Reference Hillebrecht2014; Sikkink Reference Sikkink2011; Simmons Reference Simmons2009). A growing body of research confirms realists’ claim that international mechanisms (i.e. international institutions, other countries, and transnational activist networks) fail to provide sufficient incentives for states to take action (Dai Reference Dai2007; Hillebrecht Reference Hillebrecht2014; Simmons Reference Simmons2009; Von Staden Reference Von Staden2018). While these external pressure mechanisms provide political or legal opportunities to strengthen human rights practices, the main engine of improvement is effort from pro-compliance domestic actors, such as judges, executives, legislators, or civil society actors. These groups may be committed to implementing a state’s international human rights obligations for either normative or strategic reasons. Politicians, for instance, may promote compliance because of ideological commitments to liberal values or their socialization within an international organization where compliance is the norm (Finnemore Reference Finnemore1996; Goodman and Jinks Reference Goodman and Jinks2008). Alternatively, government leaders may expect to receive political gains for their state, such as joining the EU, as a result of implementing human rights law (Holzhacker Reference Holzhacker2013). For their part, judges may start referencing international human rights laws as a result of their participation in transnational judicial dialogue (Koh Reference Koh2005; Slaughter Reference Slaughter2003) or being prompted by human rights activists and lawyers (González-Ocantos Reference González-Ocantos2016; Pavone Reference Pavone2022). Domestic non-governmental organizations (NGOs) can initiate naming and shaming campaigns at the domestic level to hold states accountable to their international obligations.Footnote 10 Most of the existing research, however, demonstrates how elite actors or NGOs induce compliance through institutional means. We know little about how social movements use disruptive or non-institutional means to instigate change. Labor in Hard Times demonstrates how litigation at an international court can empower groups directly affected by government policies to become agents of change. Hence, in explaining the divergent impact of human rights courts, I shift attention away from international factors and elite actors to the determinants of grassroots mobilization at the domestic level.
Second, research on international human rights courts generally operationalizes impact as compliance with court rulings. Studies on the ECtHR, for instance, often measure the impact of the Court by analyzing whether member states pay the damages awarded to individual applicants or undertake relevant legislative changes in order to comply with the judgments of the Court (Grewal and Voeten Reference Grewal and Voeten2015; Hawkins and Jacoby Reference Hawkins and Jacoby2010; Hillebrecht Reference Hillebrecht2014; Stiansen Reference Stiansen2019). The CoE’s official website facilitates such research by providing a detailed online database on the execution of ECtHR judgments. Such data have some merits. Direct remedies resulting from court rulings demonstrate some of the general patterns of compliance. And they are limited. Case studies that look at the actual implementation of reforms undertaken by states show that states often find ways to evade undertaking steps that would result in systemic changes (Anagnostou Reference Anagnostou2013; Búzás Reference Búzás2021; Kurban Reference Kurban2020; Von Staden Reference Von Staden2018). Compliance with the Court’s ruling may fall well short of activists’ intentions or ambitions.
Yet evaluating compliance based on data provided by the courts or states can provide a limited and misleading picture because it obscures the social and political changes that occur in the shadows of official law.Footnote 11 I join sociolegal scholars’ call to look beyond the legal documents and courtrooms to analyze the “radiating effects” of law, including how litigation efforts can change norms, discourses, social relations, and modes of contestation (Galanter Reference Galanter, Boyum and Mather1983; see also Cover Reference Cover1983; Epp Reference Epp2009; McCann Reference McCann1994; Moustafa Reference Moustafa2018; Taylor Reference Taylor2023). To this end, Labor in Hard Times builds on legal mobilization theory, which draws insights from social movements theory and constructivism, to examine the relationship between law and social change. Comparative studies, including those based in the US, demonstrate that litigation in domestic courts can be constitutive of mobilization (Albiston Reference Albiston2011; Arrington Reference Arrington2016; Hunt Reference Hunt1990; McCann Reference McCann1994; NeJaime Reference NeJaime2010; Scheingold Reference Scheingold1974). Participation in collective litigation efforts fosters legal consciousness by shaping actors’ aspirations, norms, and perceptions of their own grievances, all of which are essential factors in building a movement. At the same time, litigation efforts can create more tangible benefits, such as attracting new financial resources for their cause or providing legal backing to activists’ claims in their lobbying efforts. Litigation, even if unsuccessful, can thus act as a force-multiplier in raising expectations, attracting new supporters, and increasing the bargaining power of activists.
Most studies that examine international legal mobilization, however, examine the role of legal advocacy groups or lawyers in leading litigation efforts or in leveraging policy changes through institutional channels, such as lobbying efforts or follow-up litigation (Alter and Vargas Reference Alter and Vargas2000; Caserta and Madsen Reference Caserta and Madsen2024; Cichowski Reference Cichowski2007, Reference Cichowski2016; Duffy Reference Duffy2018; Hodson Reference Hodson and Anagnostou2014; Kelemen Reference Kelemen2011; Pavone Reference Pavone2022; Sundstrom Reference Sundstrom2012; Vanhala Reference Vanhala2010, Reference Vanhala2018). As discussed earlier, lawyers play pivotal roles in facilitating labor’s strategic litigation at the ECtHR. But lawyers are not the protagonists in actualizing international court rulings, and nor is the ECtHR. Rather, labor activists that build movements and engage in multiple forms of mobilization to advance their claims are the main agents in this struggle. This book, therefore, advances the legal mobilization theory by demonstrating the mechanisms through which international litigation can be constitutive of grassroots mobilization on the ground.
Distinct from others’ findings on legal mobilization, workers’ legal mobilization at the international level shows that human rights litigation does not necessarily shape the cultural drivers of social movements such as collective identity formations and inter-personal relationships. Classic legal mobilization theory shows that consistent engagement with legal institutions shapes the social construction of rights-based collective identity and solidarity ties among activists (Arrington Reference Arrington2019; McCann Reference McCann1994). In some cases, these processes can occur naturally as a consequence of participating in collective litigation efforts or socializing in an environment where rights discourse is the dominant framework for talking about social justice issues. Activists can develop a sense of camaraderie based on shared grievances articulated through rights talk. In others, victims can be coached to articulate their grievances as human rights abuses and to adopt a rights-bearing individual identity. Drawing on a multi-sited ethnographic work, Merry and her collaborators argue that knowledge about international human rights law is communicated, or “vernacularized,” to local people through transnationally connected “intermediaries” – activists or legal professionals who are “fluent” in human rights language (Levitt and Merry Reference Levitt and Merry2009; Merry Reference Merry2006; Merry and Stern Reference Merry and Stern2005). The adoption of human rights language and identity is encouraged and desired in order to help people view themselves as rights-bearing individuals rather than helpless victims (Chua Reference Chua2020; see also Tsutsui Reference Tsutsui2018). My findings on labor activists differ from these accounts as labor activists’ ideological convictions and collective identity are already shaped by class-based themes, and human rights do not replace these strong commitments. Activists use human rights law and language in order to advance specific goals. This instrumental approach allows activists to pursue more radical agendas and not be absorbed into conventional politics as cautioned by critical labor scholars (Gearty Reference Gearty, Mantouvalou and Gearty2010; Rajagopal Reference Rajagopal2003; Savage and Smith Reference Savage and Smith2017).
1.3 Research Design and Case Selection
This research generates and analyzes two types of data. First, in order to examine workers’ legal mobilization at the international level, I created a comprehensive database of labor-related cases at the ECtHR, covering the period from its inception in 1960 until 2017 (n = 1,161). StrasLab traces the evolution of the Court’s labor jurisprudence, documenting trends in case volume, the countries most frequently involved, and the most salient issues in both quality and quantity. It also identifies the outcome of the cases and novel rights claims rejected by the Court. This analysis provides an overview of the Court’s changing approach to labor rights, capturing the broader “rights revolution” that has unfolded since its inception. Appendix I provides detailed information on the database and the coding process.
Second, I draw on qualitative data based on comparative case studies of legal mobilization of trade unions in Turkey and the UK, the two countries that have brought the highest number and the most important cases before the ECtHR. Comparing these two countries, which differ in key respects, such as levels of economic development, regime type, and overall compliance rates with ECtHR rulings, gives me analytical leverage to identify the shared mechanisms that drove organized labor in both contexts to pursue litigation at the ECtHR.Footnote 12 In each case, unions faced the erosion of labor protections under post-1980 neoliberal reforms – implemented through legal restructuring in the UK and through more repressive means in Turkey – found strategic value in the ECtHR’s growing receptiveness to labor claims, and were supported by committed lawyers who recognized the Court as a viable venue for contestation.Footnote 13 The UK became the site of the first successful challenge that elevated trade union rights within the Court’s jurisprudence. Starting with Wilson, National Union of Journalists and Others v. The United Kingdom in 2002, the ECtHR began to recognize trade union rights as a core component of human rights law. Similarly, Turkish trade unions set numerous precedents, including the landmark Demir and Baykara (2008).
In the second part of the book, I present two cases of grassroots trade union activism to analyze the broader impact of ECtHR litigation: public sector workers’ mobilization efforts that culminated in the formation of Kamu Emekçileri Sendikaları Konfederasyonu (KESK, Confederation of Public Employees Trade Unions) in Turkey and the BSG in the UK. I gathered rich data from participant observation, interviews, archival materials, media coverage, social media, parliamentary records, and reports published by NGOs and international organizations. The case studies underpin a bottom-up approach to examining workers’ perspective on human rights litigation and the actual impact of ECtHR rulings on the ground. I provide detailed explanations on all qualitative data sources and research methods in Appendix II.
Analyzing these two movements enables me to theorize distinct pathways through which human rights litigation can catalyze grassroots mobilization under varying conditions. In Turkey, following a crushing military coup, public sector workers sought legal backing to demand their right to unionize for the first time. Human rights litigation provided safeguards against government repression to recruit new members and increased the likelihood of achieving their goals. In the UK, the blacklisting scandal, exacerbated by police collusion and union inaction, prompted blacklisted workers to seek new avenues for organizing and demanding justice. The ECtHR became a potential venue to address grievances in a national context where domestic protections were weak. Distinct from Turkish public sector workers, the BSG activists launched their movement in the late 2000s when the ECtHR had already issued several precedents on trade union rights, and human rights had become a dominant framework for advancing social justice claims. The BSG, therefore, launched a public campaign claiming their rights as human rights.
Although StrasLab includes a broad range of labor cases, the fieldwork data focus on trade union rights issues in part because it is the area of labor rights to which the ECtHR has been most attentive. At the same time, trade unions assume an enabling role for all other labor rights protection, allowing workers to collectively demand fair wages, social security, health and safety at work, and other labor rights (Rosenfeld Reference Rosenfeld2014). For this reason, in both Turkey and the UK, as well as in other parts of the world, disempowering unions has been an integral part of neoliberal policies (Daniels and McIlroy Reference Daniels and McIlroy2009; Harvey Reference Harvey2005). Through litigation at international human rights courts, unions have sought to reclaim public legitimacy, strengthen their bargaining power with governments, and enhance their capacity to recruit members.
1.4 Roadmap
The next chapter establishes the theoretical framework of the book. I first discuss the conditions that drive activists to litigation at an international court, including the decline of domestic opportunities, the rise of new legal opportunities at the international level, as well as the agency of lawyers in driving activists’ attention to these new legal remedies and identifying the target organization within a field of international legal pluralism. Next, I turn to the question of impact of human rights courts on the ground. I shift attention away from direct compliance with court rulings to the indirect effects of international courts on mobilization at the grassroots level. I offer a theoretical model that demonstrates how litigation at an international court can spark and expand social mobilization.
Part I of the book addresses the question of why and how workers have begun to turn to the ECtHR. Each of the three chapters examines the changes that occurred at the domestic, international, and grassroots levels, respectively. Chapter 3 explores the domestic origins of unions’ turn to international law. I start with a brief analysis of StrasLab to identify the countries most frequently targeted in applications and those involved in the Court’s most significant trade union rights rulings. I then provide a historical institutional analysis of how shifting political opportunity structures under two post-1980 variants of neoliberalism rolled out in Turkey and the UK created conditions that pushed workers to seek remedies elsewhere. The chapter ends with a brief analysis of the rising legal opportunities at the international level.
Chapter 4 presents StrasLab, which should appeal to legal professionals and scholars interested in finding out how the ECtHR overturned its previous case law to incorporate a wide range of labor rights into its jurisprudence. In addition to the labor case law analysis, the chapter identifies three eras in the ECtHR’s approach to trade union rights: an initial phase of conservatism, when labor claims were dismissed; a golden period of expansive responsiveness; and a later phase of retrenchment, marked by political backlash and judicial caution.
Chapter 5 places lawyers center stage as agents who precipitated a scale shift in trade union strategy. The analysis complements the findings in Chapter 4 by pointing out how the labor jurisprudence developed through an iterative process between the top-down initiative of a new responsive court and the bottom-up legal mobilization led by lawyers. It shows how a group of committed lawyers in both Turkey and the UK identified the ECtHR as their target institution due to its judicial responsiveness and authority, and how they adapted their litigation strategies in response to differing levels of domestic violations. The chapter also highlights the lawyers’ ideological commitments and their role as allies of organized labor.
Part II assesses the direct and indirect effects of legal mobilization at an international court. Chapter 6 evaluates the direct impact of ECtHR rulings on trade union rights through an analysis of ECtHR data on the execution of judgments, along with reports published by trade unions, pro-labor organizations, and labor scholars. This analysis will appeal to labor lawyers and activists interested in the compliance measures undertaken by Turkey and the UK in response to the ECtHR’s trade union rights rulings. I show that, despite formal closure of most cases under supervision, the actual implementation of these rulings often falls short of reflecting the spirit of the ECtHR judgments. By foregrounding the limitations of a narrow compliance lens, the chapter sets the stage for those that follow, which trace how labor movements engage international human rights law as part of wider campaigns for political transformation.
Chapters 7 and 8 build on this argument by moving beyond a compliance-centered approach to examining the indirect effects of litigation on social movements. Chapter 7 illustrates these broader effects through an analysis of BSG’s legal mobilization at the ECtHR, highlighting the on-stage and off-stage dynamics of strategic mobilization. On-stage, activists use human rights as a framing device in order to gain national attention and change the negative perceptions of trade unionists in the public opinion. Off-stage, when they are away from the spotlight, they rarely discuss or identify with human rights. Chapter 8 turns to the case study of Turkish public sector workers’ struggle for recognition of fundamental trade union rights. The chapter brings into focus the role human rights law played in the 1990s by providing legal protections against state repression and legitimizing unionists’ claims. However, the analysis of the post-2000 period draws out the limitations of legal victories in the absence of sustained grassroots mobilization. Without strong organizing on the ground, litigation alone proved insufficient to drive meaningful change, highlighting the need for legal strategies to be reinforced by collective action.
The concluding chapter returns to the question of whether litigation is a recourse or curse for labor activists in light of the findings in this book. It considers the future of strategic mobilization of human rights law in an era of backlash against international courts, the continued decline of trade unions, and the rise of authoritarianism. Litigation at an international court is no panacea for the structural problems confronting organized labor today. Yet the case studies in this book show that it can help rebuild labor’s mobilization capacity, allowing activists to win concrete gains in the short term and to press for broader reforms through other venues and strategies in the future.
