Strategies of Compliance with the European Court of Human Rights: Rational Choice within Normative Constraints by Andreas von Staden (review)

The European Court of Human Rights is one of the most prominent international courts in the world and, by most accounts, one of the most influential. This impressive book details the extent of compliance with Court judgments by all member states and the nuanced nature of that compliance by Great Britain and Germany. It also seeks to explain these compliance patterns by drawing on both rationalist and constructivist theoretical ideas.

In brief, Andreas von Staden suggests that compliance with the court’s judgments is quite high, though this question clearly turns on what one means by compliance and how one measures it. The most reasonable measure is to examine the determinations of Committee of Ministers of the Council of Europe, which is responsible for overseeing compliance. While this is a political body, evidence suggests that it takes its task seriously and works to maintain consistent standards over time and across states. From 1960 to 2015, the Court made 16,368 observations requiring some sort of compliance from states. Of these, states have complied with 9,279 of them, according to the Committee, or 56.7 percent. The glass is thus either about half-full or half-empty. The book generally takes an approach that the compliance is at least half-full because many judgments lacking compliance have been more recent and could soon result in compliance or because information is sometimes missing.

Is all compliance created equal? While recognizing that compliance could be placed on a continuum that might include partial or incomplete compliance, von Staden prefers a dichotomous approach for this overall dataset. If the Committee judges compliance has occurred, then it has occurred. This is a useful legal determination and a clear line that allows specific determination of compliance rates. But it is obviously less helpful at judging the extent and quality of the compliance, a subject that von Staden later addresses in insightful detail.

Compliance rates vary by state. Some, such as Russia, have very low compliance rates indeed; they are around 20 to 30 percent. Others, like Italy and Turkey, hover around 50 to 60 percent compliance. Many of the smaller, most well-established democracies like Sweden, Denmark and Norway have compliance rates approaching 100 percent. Generally, more judgments are entered against some of the lower-complying states. Thus, even though many more states cluster around 90 to 100 percent compliance, the overall percentage of compliance with all Court determinations falls to 56.7 percent.

Why the variation in overall level of compliance? Von Staden invokes well-known constructivist approaches to argue that it has to do with the normative pull of human rights principles on states with democratic identities. As von Staden notes, it is very difficult to observe the working of norms; finding persuasive causal evidence for this proposition is highly problematic. Von Staden takes a straightforward approach, arguing that compliance in the face of incentives against compliance and in the absence of positive material inducements constitutes evidence of norms. He generally does a fine job in the detailed case studies showing how Britain and Germany complied with Court judgments even in very difficult situations where they would have preferred different outcomes. It is reasonable to find that compliance in the face of such costs is driven by normative commitments.

The argument here would be strengthened, however, by considering a relative outlier like Italy, or even Finland or Spain, all of which have lower compliance rates but high levels of democracy. Can the norms argument also apply to them? Why do they have lower compliance rates? It could also be strengthened by considering countries at lower levels of democracy, such as Turkey, Croatia, or Ukraine. What leads these states to comply when they do? In short, more exploration of the variation could provide more insight and nuance to the argument.

Von Staden then turns to the nature and quality of...