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Original article (peer-reviewed)

Journal European Journal of International Law
Publisher European Journal of International Law
Volume (Issue) 1(31)
Page(s) 73 - 99
Title of proceedings European Journal of International Law
DOI 10.1093/ejil/chaa014

Open Access

URL https://academic.oup.com/ejil/article/31/1/73/5882063
Type of Open Access Publisher (Gold Open Access)

Abstract

It is well established in the literature that international courts make law and develop norms. Yet there is no systematic analysis of how adjudication refashions a given norm’s trajectory. This article addresses this gap by combining legal analysis with social science methods. It takes a closer look at the European Court of Human Rights and provides a framework for understanding how court rulings develop norms – that is, how judicial decisions modify norms’ content or scope. The framework is composed of a typology of court characters (arbitrator, entrepreneur and delineator) and the distinct modes of norm development that each character typically generates (incremental/inconspicuous, pronounced and peripheral development). The typology is informed by interviews carried out at the Court as well as the literature on judicial review and, in particular, the debate on judicial activism and restraint. Unlike the concepts of judicial activism and restraint, these characters are not antithetical, but complementary. I show how court characters complement one another by looking at the case of the norm against torture under Article 3 of the European Convention on Human Rights. I examine 157 judgments issued between 1967 and 2006. I find that the percentage of entrepreneur rulings considerably decreased in the post-1998 period, while arbitrator rulings increased by nearly the same amount. My analysis of nearly four decades of jurisprudence not only sheds light on how the Court operates but also furthers our understanding of how it refashions codified norms.
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