Why did the Court shape the norm against torture and inhuman or degrading treatment in the way it did? What explains the peculiarity of the late 1990s – the period when the Court effectuated a sudden and foundational change in the way this prohibition is understood? This chapter presents a framework that will help us answer these questions. The theoretical framework provides an institutional explanation for understanding norm change by situating the transformation of the norm within the broader transformation of the Court. It is built upon insights gathered from secondary sources and elite interviews. It aims to serve as a heuristic tool to explain the conditions under which international courts, such as the European Court of Human Rights, can be expected to be audacious or forbearing.
While the framework was created with the example of the European Court in mind, it is meant to be applicable to other courts and tribunals. The framework is composed of one core component and three contributing factors. Having a large discretionary space, with no or limited negative feedback, is a necessary condition for courts to issue more audacious rulings across the board. However, there are several other sociopolitical factors that can facilitate the Court’s audacity, such as emerging societal needs, the legal developments introduced by other courts or institutions, and civil society campaigns.
This framework and the accompanying analysis that will be presented in Chapters 6 and 7 contribute to the rich literature on the politics of international courts, and International Relations and International Law scholarship in general.Footnote 1 Most of the existing legal literature would agree that lawmaking is an ordinary part of adjudicationFootnote 2 and that legal change is one of its intentional or inadvertent outcomes.Footnote 3 Yet, this literature overlooks the question of when we can expect international courts to engage in progressive lawmaking or to resort to forbearance. The framework deals with this important question, promising to shed light on what motivates courts to serve as change agents and what hinders their progressive agendas.
The Core Component: Discretionary Space
A large discretionary space – either given to or carved out by courts – is a necessary condition for international courts to be audacious enough to generate progressive change. The discretionary space, or the zone of discretion, is the strategic space within which courts carry out their functions in line with their preferences.Footnote 4 The bounds of this zone are delimited by the constraints set by formal rules. Within this space, courts have room for maneuverFootnote 5 and may “operate creatively.”Footnote 6 This concept comes out of the rationalist institutionalist literature.Footnote 7 It is tailored to study non-majoritarian institutions like courts.Footnote 8 What is distinctive about non-majoritarian institutions is that they exercise “specialised public authority” without being “elected by the people, nor [are they] directly managed by elected officials.”Footnote 9 Courts are a special case of non-majoritarian institutions. They are delegated with authority to carry out functions such as supervising the implementation of a treaty, interpreting and applying its provisions, settling disputes, and (possibly) developing further rules.Footnote 10
While the zone of discretion may appear to be an elusive concept, it can be pinned down in reference to other measures, in particular, court autonomy and authority. Autonomy concerns a court’s independence from member states and parent organizations.Footnote 11 Authority, on the other hand, refers to a court’s credibility and ability to influence its audience by serving as a reference point,Footnote 12 which goes beyond the question of whether court judgments are complied with.Footnote 13 High degrees of authority and autonomy should ideally yield a wide zone of discretion.
For international courts and tribunals, complete independence may not be possible because they derive their authority from a constitutive treaty signed and enforced by states. Moreover, it is these states that elect or appoint the judges sitting on these courts. Therefore, international courts are by nature subordinate and depend on states.Footnote 14 That said, courts may be granted, or they may carve out, a space of autonomy for themselves over time, as was the case with the European Court.Footnote 15 According to Mikael Rask Madsen, the Court lacked autonomy when it was first instituted, but it then acquired “a higher degree of legal autonomy.” This was due to “a set of interdependent processes of institutionalization, legalization, and even scientification of European human rights.”Footnote 16 Darren Hawkings and Wade Jacoby provide a similar narrative.Footnote 17 They find that while the Court had limited autonomy in the 1960s and 1970s, its autonomy increased from the early 1980s onward.Footnote 18
Authority, on the other hand, concerns the courts’ standing in the eyes of member states and the broader international legal community. In theory, authority is derived from a court’s reputation and credibility as an independent body in settling disputes in light of the law. In practice, a court’s authority is certified when its decisions are respected and not challenged by member states.Footnote 19 Madsen, in another study, finds that the European Court’s authority, like its autonomy, has increased over time.Footnote 20 The Court maintained narrow legal authority from its inception until the mid-to-late 1970s, but then it began to enjoy extensive authority in the 1990s and became “the de facto Supreme Court of human rights in Europe” with “a steady and growing docket.”Footnote 21
Indeed, the European Court began enjoying a larger discretionary space after the late 1990s, as Alec Stone Sweet and Thomas Brunell show in their study.Footnote 22 This is due to various reasons. First, the Court has been endowed with compulsory jurisdiction to authoritatively interpret the Convention since 1998. Second, the Court has been able to expand its own zone of discretion by interpreting the Convention and the scope of its powers.Footnote 23 An important illustration of such judicial constructs is the principle of evolutive interpretation (i.e., the living instrument doctrine).Footnote 24 This principle has provided justifications for progressive interpretation in light of present-day circumstances and for expanding the Court’s interpretive authority. Finally, states have not attempted to override any of the Court’s important decisions regarding the interpretation of the European Convention by means of treaty revision.Footnote 25
What Stone Sweet and Brunell do not remark upon in their study is that the European Court has also been known to engage in more forbearing treaty interpretation and to generate interpretive concepts that have the effect of narrowing the scope of its powers. Prominent examples falling under this category are the principle of subsidiarity and the margin of appreciation doctrine – both require the Court to act deferent to domestic authorities and to their authority to guarantee rights protection at the national level.Footnote 26 The existence and use of such principles do not mean that the Court’s zone of discretion is effectively contracted. Instead, they signal that the Court does not have the sole intention to use its authority to the maximum. It may also have the instinct to use less discretion and assume a more circumscribed role.
Such a trade-off might be necessary for obtaining essential resources to survive and be secure (e.g., funding, state support, or legitimacy).Footnote 27 As Michael Barnett and Liv Coleman argue, institutions have diverse preferences that range from surviving to furthering their mandate and protecting their autonomy. Institutions make trade-offs to pursue these goals.Footnote 28 In this book, I argue that this has been precisely the case for the European Court. The Court has used these diverse judicial tools to make trade-offs and adjust its behaviour to prevent or mitigate widespread negative feedback and political pushback.Footnote 29
Determinants of the Width of Discretionary Space: State Control
As the case of the European Court shows, the zone of discretion is not a static space. Once the initial zone of discretion is established by formal powers and controls, it can be subsequently readjusted. Court activities may spur reactions from states, especially when they create domestic distributional consequences by issuing controversial rulings that are financially or politically costly to implement.Footnote 30
In order to better understand what determines the bounds of discretionary space, it is worth briefly revisiting the theories on institutional design and delegation.Footnote 31 Most existing work agrees that international courts come with a “sovereignty cost” that can grow over time.Footnote 32 What they disagree on is the extent to which states can recover some of this cost by exerting control over courts.
Rationalist design scholars view states as the principals that delegate authority to courts as their agents, based on a contractual agreement.Footnote 33 While the expectations might be clear at the outset, courts – just like other institutions with delegated authority – may grow to have their own preferences,Footnote 34 or may evade control mechanisms (i.e., agent slack).Footnote 35 They might be inclined to exploit their discretion and act autonomously.Footnote 36 In order to prevent this, states often prefer to exert direct control over delegated institutions – including, for example, withholding delegation,Footnote 37 imposing bureaucratic and budgetary restrictions,Footnote 38 and overruling judgments.Footnote 39 While agreeing that international courts are special cases of delegated authority and are more prone to being autonomous, most scholars in this camp theorise about the ways in which states may exert direct or indirect influence on courts.Footnote 40
There are others who disagree with characterizing courts as agents, opting instead to characterise international courts as trustees.Footnote 41 They find that, while it might be appealing to control courts to prevent them from solely pursuing their own preferences, in reality, states enforce only limited control on courts.Footnote 42 This is because the functions that the courts typically carry out require “substantive levels of discretion.”Footnote 43 In other words, courts need independence in order to preserve their own legitimacy and the legitimacy of their judgments.Footnote 44 In addition, courts are not solely dependent on their delegated authority; they may also derive some authority from their normative functions.Footnote 45 Finally, courts might even expand their authority by building alliances with sub-state actors and compliance constituencies (e.g., advocacy networks, domestic judges, and officials from administrative agencies).Footnote 46 Such transnational coalitions may provide courts with an alternative source of support and reduce their dependency on states.
Even starting from the assumption that states are less likely to put in place intrusive control mechanisms over international courts,Footnote 47 we can reasonably expect that states may still attempt to reduce the sovereignty cost by resorting to indirect or more informal measures.Footnote 48 Laurence Helfer and Anne-Marie Slaughter describe these as “a range of structural, political, and discursive mechanisms to ensure that independent judges are nevertheless operating within a set of legal and political constraints.”Footnote 49 These reactions often may not amount to full dejudicialization or re-contracting – a complicated formal process to amend courts’ constitutive treaties and the scope of their delegated authority.Footnote 50 Instead, indirect means may include the appointment of judges who favour deferring to state policies,Footnote 51 communicating dissatisfaction,Footnote 52 threatening withdrawals,Footnote 53 or a variety of other court curbing strategies.Footnote 54 As Mark Pollack highlights in his study of the paralysis of the Appellate Body of the World Trade Organization (WTO), such attacks or threats thereof are common.Footnote 55
Such reactions, when concerted or systematic, might compel the courts to adjust their practices and interpretive preferences.Footnote 56 In this sense, courts, just like other institutions, may act strategically to ensure their survival and increase their reputation, relevance, and resources.Footnote 57 As this book argues, forbearance is the collective term to depict judicial strategies geared toward such aims. It essentially means that a given court chooses to underutilise its prerogatives and refrains from issuing sweeping judgments with significant adjustment or implementation costs. This dynamic implies that even courts that enjoy a wide discretionary space occasionally may be constrained by the preferences of other actors, especially states.Footnote 58 Only when such constraints are lifted can international courts afford to be audacious and pursue more progressive agendas unrestrained by state interests.
Negative Feedback and Signaling
When could widespread negative feedback influence court behaviour? Serving as a tool of indirect control, negative feedback is not only about punishing courts for past behaviour; it is also for future signalling.Footnote 59 The influence of negative feedback may work in two ways. First, when accumulated, negative feedback can erode the state or public support for an institution. The mechanism behind this dynamic can be best explained by drawing inspiration from recent Historical Institutionalist accounts that focus on endogenous drivers of change – rather than exogenous ones such as geopolitical shifts, recessions, crises, or other shocks.Footnote 60 The source of change can be the institutions themselves. As explained by James Mahoney and Kathleen Thelen, institutions generate distributional effects; those that are not advantaged by this effect are likely to challenge the institutions.Footnote 61 Such negative feedback might have a diffusion effect and culminate in social and political pressures undermining the institutions.Footnote 62 This observation is applicable to international courts whose outputs might generate negative feedback and erode their “political support bases over time.”Footnote 63 The erosion of support might trigger formal or informal processes that threaten international courts’ authority and autonomy.
Second, negative feedback and signalling can inform courts’ organizational priorities. Chief among those priorities is maintaining a good reputation in the eyes of member states, which oftentimes is a condition for securing resources and enhancing courts’ political and social influence.Footnote 64 Courts’ concern for reputation and authority can be a constraint on their choices and activities, and can compel them to prioritise their “organizational imperatives” over pursuing unequivocally progressive agendas – a phenomenon coined as the “authority trap.”Footnote 65 In order to maintain their reputation and authority, international courts may respond to negative feedback by engaging in strategies for institutional survival and resilience, which include judicial avoidance,Footnote 66 or showing deference.Footnote 67 In so doing, they underutilise their discretionary space and signal back to the states that they can operate on lower sovereignty costs.Footnote 68
Strategies for Institutional Survival and Resilience: Between Tactical Balancing and Trade-Offs
International courts are sensitive to the threat of negative feedback and such feedback itself. They engage in tactical balancing exercises to fend off negative criticism and to preserve the institution and its public image. This self-preservation exercise is a collective strategy undertaken not only by the judges who are elected for a limited term but also by the Secretariat staff employed on a more permanent basis, as we will discover in Chapter 2. Hence, all members of the judicial elite working at the Court can partake in fashioning strategies and trade-offs for institutional survival or resilience.
The literature on courts provides insights into how this trade-off might look. For example, Diana Kapiszewski argues that judicial review is not a strictly mechanical exercise and that it is accompanied by tactical balancing.Footnote 69 That is to say, judges read the content of each politically important case and the case’s context. They simultaneously balance multiple considerations, including their own ideology and life view, how they perceive the interest of the institution they serve, the political and economic implications of their decision, the opinion of the public, and the state of International Law.Footnote 70 Kapiszewski’s theory convincingly portrays how judicial decisions are shaped by “multiple political and institutional pressures.”Footnote 71 It also explains how judges can be selectively assertive when the context calls for it.
This depiction is directly applicable to the case of the European Court. When the Court’s zone of discretion is narrow, issue characteristics matter more; the Court can be assertive only in select instances. The likelihood of the Court being assertive and audacious increases as its zone of discretion enlarges. This is what Mikael Rask Madsen captures in his study of the history of the European human rights regime. Madsen introduces the concept of “legal diplomacy” to depict the old European Court and the Commission’s attempts to provide legal and extra-legal solutions to the disputes they settled up until the 1970s. He also remarks that legal diplomacy gave way to more progressive trends in the subsequent period, especially in the late 1990s, when the new Court secured a larger zone of discretion.Footnote 72
The interviews I gathered at the Court provide insights into how this tactical balancing might look today. Almost all of the judges I interviewed confirmed, either explicitly or implicitly, that judges do consider the broader implications that their decisions might generate. During an interview, an experienced judge clarified the distinction between political decisions and legal decisions that may have a political impact. According to them, the Court refrains from making political decisions. This does not, however, mean the Court is unaware of the political effects of its decisions. It takes them into consideration when delivering judgments.Footnote 73 Another judge underlined that the Court cannot function in isolation and that “the European Court is particularly well placed to observe the general trends in the society.”Footnote 74 Similarly, a judge from a Western European country explained that, normatively, the Court should not be influenced by external factors when delivering decisions; however, empirically that is the case. They avowed the following:
We are human beings. I am a human being like yourself, with blood and flesh. I read the newspapers. I understand what is happening in the environment. I am sure, at least subconsciously, we, as judges, are influenced by external factors, and whether we are more prone to take more human rights viewpoint or more government viewpoint is a matter of personality. It depends on where you are coming from. A lot of the judges come from the human rights community, so they instinctively perhaps are willing to listen to human rights views, and some come from the civil service sector, and they pay more attention to the state side. Empirically, judges are influenced by factors. International judges cannot be so naive as to do their jobs without taking account of external factors. It is all about legitimacy, trust, and the community believing that they are doing what they are supposed to be doing. So normatively, no; they should not take account of external factors, but yes, empirically, they do in different ways for different reasons.Footnote 75
Another judge from an Eastern European country explained the dynamics of tactical balancing and argued that judges “cannot decide the cases without having a general political background.” They then added that “This is completely normal. We are aware of the developments around us, and we have to look at [judicial review] from a certain perspective.”Footnote 76
Some judges supported their view on the necessity of tactical balancing with examples. One judge from Eastern Europe referred to Hirst (No. 2) v. the United Kingdom,Footnote 77 and Greens and M.T. v. the United Kingdom,Footnote 78 where the Court found that issuing a blanket ban on prisoners’ voting rights violated the Convention.Footnote 79 They disclosed that the Court felt the need to find the United Kingdom in violation due to changing trends in Europe, as well as the strong signals sent from the Parliamentary Assembly against voting rights restrictions.Footnote 80 Similarly, another judge from Western Europe brought up Lautsi v. Italy,Footnote 81 a controversial decision about the display of crucifixes in state schools.Footnote 82 In the Chamber judgment of 2009, the Court unanimously found Italy in violation of Article 2 of Protocol 1 (right to education) in conjunction with Article 9 (freedom of thought, conscience, and religion). The case was then appealed to the Grand Chamber, which reversed this decision in 2011; this change, the judge later explained, was due to state pressure. They specifically underlined that, alongside ten member states of the Council of Europe, thirty-three members of the European Parliament collectively sent submissions in favour of the Italian government’s position.Footnote 83 This was the largest group of third-party interveners ever in the Court’s history, collectively appealing to the Court to be more forbearing.Footnote 84 As these examples show, legal review is often accompanied by tactical balancing, whereby judges gauge the importance of the case and the repercussions it might generate – albeit under the condition of imperfect information.Footnote 85
Tactical balancing accompanies crucial cases with political and legal complexity in particular, as the examples above show. But tactical balancing in itself is a neutral exercise that might result in forbearing or audacious decisions. One argument proposed in this book is that the Court may tactically decide to act more forbearing when its zone of discretion is limited or when it receives overwhelming negative feedback. Alternatively, tactical balancing yields more audacious decisions when the Court’s discretionary space is wide. Yet, as we will see in the following section, other factors can also facilitate the Court’s assertiveness.
Contributing Factors for Increased Audacity
In addition to the zone of discretion, which is the cornerstone, there are other sociopolitical and legal factors considered in the framework. The Court’s likelihood of being audacious increases when its decisions are in line with (1) widespread societal needs, (2) the precedents or legal principles set by other courts and institutions or in other treaties, and (3) civil society campaigns. The expectation is that when the Court enjoys a large discretionary space, unrestrained by negative feedback, it will weigh these contributing factors more than its need to pay heed to state interests.
The existing literature has already identified the importance of these factors on the Court’s behaviour and decisions. First, the Court may be more willing to effectuate change concerning matters around which European societies agree. As sociolegal scholars and legal historians such as Mikael Rask Madsen and Ed Bates explain, sociopolitical context constrains or enables the Court’s tendencies to be more progressive.Footnote 86 There are also studies that explain how changing social trends may compel the Court to be more progressive and justify decisions with wider implications.Footnote 87 For example, Sarah Lucy Cooper finds that, while the Court rejected the notion of same-sex relationships as family units in the 1980s, it began to be receptive to the idea only in the 1990s when it had already become socially acceptable in Europe.Footnote 88
This generally implies that successful attempts at change concern emerging societal needs or issues unlikely to provoke political resistance. The Court has traditionally checked this by looking at whether there are repeated complaints about an issue and whether a European consensus exists around a practice.Footnote 89 The existence of repeated complaints, especially brought against multiple countries, is a sign of the pervasiveness of the problem. For example, introducing procedural obligations under the prohibition of torture was a response to a problem demonstrated by the systemic rule of law deficiencies in several member states.Footnote 90 The Court can also discern general trends by carrying out European consensus analysis (i.e., assessing whether there is unified agreement around a certain practice in Europe).Footnote 91 To illustrate, the Court justified its decision that states would not have a positive obligation to facilitate euthanasia by looking at the general trends in Europe. Noting that “assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands,” the Court ruled that states do not have an obligation to sanction euthanasia under Article 3 in Pretty v. the United Kingdom in 2002.Footnote 92
Second, the Court may channel judicial innovations created or promoted by other courts and institutions or in other treaties, as Magdalena Forowicz shows in her work.Footnote 93 Innovations and changes initiated elsewhere may inform the Court about general trends in International Law. More practically, other institutions or treaties may set precedents and open the gateways for change. It is plausible to assume that emulating legal change launched by another institution would be less costly.Footnote 94 Therefore, these precedents provide the Court not only with guidance, but also with legally valid justifications to effectuate change within the European human rights system. Particularly in the context of the prohibition of torture, the global anti-torture regime – composed of specialised treaties, expert bodies, and committees that carry out on-site visits – and other Council of Europe instruments against torture and inhuman or degrading treatment have provided the Court with evidence or legal grounds to proactively develop the norm. For example, when recognizing Nahide’s victimhood under Article 3 in Opuz v. Turkey, the European Court relied on the Convention on the Elimination of Discrimination against Women (CEDAW) and the Belém do Pará Convention.Footnote 95
Finally, as previous studies established, civil society organizations can shape and inform court decisions by strategically litigating key cases and actively promoting the principles set out in these cases.Footnote 96 In particular, the influence of third-party interventions has been subjected to systematic studies.Footnote 97 For example, Yaël Ronen and Yale Naggan argue that although there are relatively few cases in which amicus curiae briefs are submitted to the European Court, these submissions are often mentioned in the text of the judgment.Footnote 98 They find a correlation between third-party interventions and the Court finding a violation on the grounds that they intervene.Footnote 99 Other scholars portrayed the role of civil society organizations in creating positive change for a range of groups from minoritiesFootnote 100 to victims of gross violations in Chechnya and Turkey’s Kurdish regions.Footnote 101
Civil society can be influential because they provide the Court with vital information about the systematic nature of certain problems. They do so by acting as repeat players, bringing similar cases before the Court to draw attention to pervasive or protracted human rights violations. For example, their active promotion has helped the Court understand the scale of discrimination toward the Roma in Central and Eastern Europe.Footnote 102 The European Roma Rights Centre (ERRC), Interights, and the Open Society Justice Initiative intervened as third parties on the side of the applicants in Nachova and Others v. Bulgaria – a case about racially motivated police violence.Footnote 103 The ERRC also represented the applicants in Moldovan and Others v. Romania [No.2].Footnote 104 This case concerned state authorities’ failure to provide a legal remedy following the destruction of their home due to racially motivated mob violence. Finally, the ERRC and the Roma Center for Social Intervention and Studies (“the Romani CRISS”) represent the applicant in Stoica v. Romania – another case concerning racially motivated ill-treatment.Footnote 105 In all of these cases, various civil society organizations called attention to racial motivations behind police violence and authorities’ failure to provide a legal remedy. They relentlessly challenged the Court by using litigation to portray the systemic discrimination against the Roma in Central and Eastern Europe. The Court finally acknowledged racial motivations behind ill-treatment and police violence in Stoica in 2008.Footnote 106
In addition to the existing literature, my interviewees at the Court referred to these three contributing factors when explaining the change in Article 3 jurisprudence. In 2014, I asked fifteen current and two former judges a series of questions about what influences them when carrying out judicial review and sources of legal change.Footnote 107 Concerning the basic drivers of interpretive change, all seventeen of them underlined the relevance of changing times and societal needs. One judge with an academic background elucidated that legal change is due to the changing societal dynamics in Europe. They then added that “We have to interpret the Convention guarantees in the line of these new developments and new threats.”Footnote 108 Another judge, who previously served as a supreme court justice, identified the source of change as “the life itself…the Convention as a living instrument. We cannot always be ahead of our time, but we cannot afford to be left behind.”Footnote 109 Finally, a judge from a Western European country described that
To some extent, this whole notion of a changing norm within the changing societal dynamics is inevitable. (…) Nobody expected a homosexual relationship would constitute a family in the 1950s, but now we accept it. (…) If this issue was to be brought up in the 50s or 60s, the Court would unanimously decide that same-sex relationships are not protected under Article 8 [right to private and family life]. It would be a lot more difficult to come back to this issue in the 80s and 90s for this claim. So, the strategy should not be naive but timely.Footnote 110
Ten of them also mentioned that other treaties, courts, and institutions might also provide the Court with encouragement and inspiration to effectuate change within the European system. One judge explained that other courts and treaties provide them with a “fresh perspective” and update them about what is at stake at the international level.Footnote 111 Another judge disclosed that other courts’ case law gives a direction to the Court.Footnote 112 Finally, a Western European judge clarified that they may sometimes turn to “other tribunals or expert bodies to determine what the situation is at the international level.”Footnote 113 They added that although the judgment will be decided on the basis of the Convention, “of course, we will think twice before we go against an established international practice.”Footnote 114
Unprompted, judges did not immediately talk about the role of civil society. When asked specifically, eleven of them confirmed that civil society groups may play an important role. They divulged that what makes civil society groups particularly influential is the fact that they bring new information about the legal developments taking place elsewhere, present the opinion of the public, and provide legal counsel to victims who otherwise may not be able to represent themselves.Footnote 115
There was no clear agreement about the extent of civil society’s influence in shaping the case law, however. Some judges argued that what matters is the legal arguments and not necessarily who brings them.Footnote 116 Others viewed civil society groups’ role to be essential.Footnote 117 One judge expressed that “without them, we would have a partial picture.”Footnote 118 Another judge explained their relevance as follows: “On issues such as segregation of Roma children, we do not get a lot of information from the governments, but the NGOs provide us with data and information. They bring us good cases too.”Footnote 119 Similarly, a former judge observed that civil society groups are often “very useful with mapping out general problems.”Footnote 120 Finally, one Western European judge described third-party submissions as “often interesting and occasionally challenging for the Court.” They then added, “I would not say that entire judgments have been shaped on the basis of the intervention of an NGO. But certainly, they have contributed to shaping the case law.”Footnote 121
Conclusion
In this chapter, I have laid out the building blocks of my theoretical framework, which catalogues the conditions under which international courts, like the European Court, may be expected to issue audacious rulings. This framework relies on previous literature and insights gathered from interviews in and around the Court. The necessary condition for an audacious court is a wide discretionary space within which that court may act without fearing repercussions from states. Yet, such a wide discretionary space is not always given; when it is given, states might still attempt to influence courts through direct or indirect means. Such means include threatening to close down a court’s discretionary space and threatening widespread negative feedback, as well as actually taking either action. International courts, in turn, are often compelled to (re)align their priorities in order to react to or pre-empt the use of such means. This (re)alignment is a form of tactical balancing whereby courts adjust their behaviour to ensure their continued access to resources and preserve their reputation and image. Finally, I have introduced additional factors that increase the likelihood of audacious rulings (i.e., congruence with changing societal needs, legal developments external to the regime, and civil society campaigns). In Chapter 2, I will take a look inside the Court and further explore how it operates, what its trade-offs are, and how its discretionary space changes over time.
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