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International Courts and Public Opinion: Explaining the CJEU's Role in Protecting Terror Suspects' Rights
Author(s) -
Harsch Michael F.,
Maksimov Vladislav
Publication year - 2019
Publication title -
jcms: journal of common market studies
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 1.54
H-Index - 90
eISSN - 1468-5965
pISSN - 0021-9886
DOI - 10.1111/jcms.12874
Subject(s) - political science , human rights , sanctions , position (finance) , public opinion , state (computer science) , european union , law , member state , compliance (psychology) , law and economics , economic justice , business , member states , sociology , politics , international trade , psychology , social psychology , finance , algorithm , computer science
Under what conditions can regional and international courts (ICs) make decisions against their governments' preferences? To answer this much debated question, we develop a new, majoritarian model of state‐IC relations. It posits that in cases where well‐established ICs' positions are congruent with policy‐specific public opinion in leading member states, ICs can rule against their governments' position. We apply our approach to a series of landmark decisions by the Court of Justice of the European Union (CJEU) regarding United Nations sanctions against terror suspects. We find that the CJEU was able to harness growing public support to strengthen terror suspects' rights, punish states for superficial compliance with its rulings and ultimately broaden the Court's judicial review powers. Our analysis suggests that ICs can be agents of legal change and advance human rights against governments' resistance, but this role is conditional on the presence of public support.