The European Court of Human Rights, Amicus Curiae, and Violence against Women

• Published date: 01 December 2016
• Date: 01 December 2016
• DOI: http://doi.org/10.1111/lasr.12236

The European Court of Human Rights, Amicus

Curiae, and Violence against Women

Rachel A. Cichowski

Are international courts and advocacy group legal mobilization shaping

human rights politics? This question poses a theoretical and empirical chal-

lenge to state dominated understandings of international litigation. This arti-

cle theorizes the interaction between advocacy groups and the European

Court of Human Rights and the role this participation plays in the enforce-

ment and development of human rights. The analyses examine institutional

factors shaping broad trends in mobilization complemented by two in depth

studies examining a single mode of participation, amicus curiae and a single

area of law, violence against women. The data identify the critical role stand-

ing rules, court review powers and group expertise play in transnational

rights mobilization and development. The findings bring into question domi-

nant understandings of international law and contribute to a more complex

understanding of law in a global age where international courts and societal

actors are shaping the direction of rights protection.

Since the 1950s, international courts have incrementally trans-

formed domestic and international governance. Growth in inter-

national legal institutions has skyrocketed with international

tribunals and courts governing issues as diverse as human rights

to trade disputes. Individuals are now increasingly governed by a

dense and binding set of international laws and norms—often

policies constructed with little or no direct electoral participation

by society. While one dominant response characterizes this trend

The author is grateful to the National Science Foundation, grant no. SES 1322161 for

support of this research and to Elizabeth Chrun for her impeccable research assistance.

The author would also like to thank David Victor and Emilie Hafner-Burton, Directors of

the UCSD School of Global Policy & Strategy, Laboratory on International Law and Regulation,

where the author resided on sabbatical leave while writing this article. Earlier versions of

this paper were presented at the Law & Society Association 2015 Annual Meeting,Data and

International Courts Workshop, PluriCourts, Oslo, Norway, June 2015 and the Southern Cali-

fornia International Law Scholars Workshop, UC Irvine School of Law, February 2016. I

appreciated comments from workshop and conference participants especially Erik Voeten,

Wayne Sandholtz, and Greg Shaffer as well as thoughtful suggestions from the anonymous

reviewers.

Please direct all correspondence to Rachel A. Cichowski, Department of Political Sci-

ence, LSJ Program, University of Washington, Box 353530,Seattle, WA 98195; e-mail: rci-

chows@uw.edu.

Law & Society Review, Volume 50, Number 4 (2016)

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C2016 Law and Society Association. All rights reserved.

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as undemocratic (e.g., Dahl 1999; Rubenfeld 2004), I argue that

international courts can provide an avenue for enhancing, rather

than undermining, participation in processes of human rights

governance.

This article theorizes the interaction between advocacy organ-

izations and international courts in the context of the European

Court of Human Rights (herein after ECtHR or the Court).

There was no direct individual or group access to this interna-

tional court when it was founded in the 1950s, yet today there is

a vibrant legacy of participation by both individuals and organiza-

tions (Cichowski 2011, 2006; Madsen 2007; Van den Eynde

2013). Legal activists and advocacy groups are pivotal players at

the ECtHR, despite continued opposition by some member

states.

1

The analysis examines how and why advocacy participa-

tion evolved in this closed legal system, and identifies its role in

the enforcement and development of human rights in Europe.

Understanding the interaction between international justice

institutions and advocacy organizations is increasingly a challenge

for scholars in the fields of law and the social sciences. The

research continues a growing fusion between legal scholars and

social scientists studying the growth and effects of international

legal institutions (e.g., Helfer and Voeten 2013; Shaffer 2014; Sik-

kink 2011) and it also builds on the work of socio-legal scholars

drawing from political science, sociology, and anthropology

examining processes of rights mobilization (Barclay, Jones, and

Marshall 2011; Marshall 2006; McCann 1994; Merry 2006; Van-

hala 2011). I adopt an innovative approach drawing together

important theoretical and methodological links between interna-

tional courts, litigation, and organized interest participation.

While litigation has a long history in the United States as an ave-

nue for interest group pressure (Collins 2008) and an influential

mode of participation (e.g., Marshall 2006;Zemans 1983), we

know far less about a similar legal mobilization trend that is now

spreading around the globe (e.g., Anagnostou 2014; Dolidze

2012; Dor and Hofnung 2006; Epp 1998; Lindblom 2005; Yamin

and Gloppen 2011).

The article is organized as follows. First, I theorize and devel-

op a framework for understanding the dynamic interaction

between interest and advocacy organizations and international

1

Human rights advocacy groups operating in former Soviet states are particularly

active in representing claimants and filing amicus briefs before the ECtHR, including such

groups as the Russian Justice Initiative, Memorial Human Rights Centre, and the European

Human Rights Centre. Yet, the Russian government continues to scrutinize and constrain

these groups, most recently by requiring all NGOs who receive any funding from a foreign

source to register as foreign agents, Federal Law No. 121-FZ (Human Rights Watch 2016;

van der Vetand Lyytik€

ainen 2014).

Cichowski 891