Periodic Reporting for period 6 - HRNUDGE (A NUDGE IN THE RIGHTS DIRECTION? REDESIGNING THE ARCHITECTURE OF HUMAN RIGHTS REMEDIES )
Reporting period: 2024-05-01 to 2025-02-28
For decades, human rights have been treated as the business of international institutions like the European Court of Human Rights. Yet, the respect for human rights on the part of governments has been invariably weak. Our team aims to explore the future of compliance with human rights. The team will analyse why and how states comply with human rights judgments and how they change their behaviour in relation to human rights. We are particularly interested in the impact of different remedies on states’ compliance practices. For example, do financial penalties work better if they are higher? Do specific instructions in judgments induce better compliance than Court's silence? Do countries imitate their neighbours when choosing their actions?
Through a combination of quantitative and qualitative research in six countries, the project aims to expose the dynamics of the (non)compliant state and the efficacy of different types of remedies in changing the behaviour of human rights violators. The central aim of the project is to identify new remedy options – incentives – which human rights institutions can use to deter future violations. Using the example of the ECtHR and its caselaw, the research will build on insights from behavioural economics to interrogate widespread assumptions about monetisation of human rights, public shaming, and deference shown to states in the specification of remedies. Through computer simulation, the project will aim to predict how monetary and non-monetary remedies could be used separately or together to alter the behaviour of states and their key players.
The project seeks to come up with new solutions and incentives, which governments, communities and even individuals can employ in the future. Our main purpose is to establish how we can challenge the status quo and help states internalise human rights in the future.
Through a combination of quantitative and qualitative research in six countries, the project aims to expose the dynamics of the (non)compliant state and the efficacy of different types of remedies in changing the behaviour of human rights violators. The central aim of the project is to identify new remedy options – incentives – which human rights institutions can use to deter future violations. Using the example of the ECtHR and its caselaw, the research will build on insights from behavioural economics to interrogate widespread assumptions about monetisation of human rights, public shaming, and deference shown to states in the specification of remedies. Through computer simulation, the project will aim to predict how monetary and non-monetary remedies could be used separately or together to alter the behaviour of states and their key players.
The project seeks to come up with new solutions and incentives, which governments, communities and even individuals can employ in the future. Our main purpose is to establish how we can challenge the status quo and help states internalise human rights in the future.
Initially, the work mostly focused on an empirical study of 12,000 cases of the European Court of Human Rights (ECtHR) to determine the compliance practices of states and their link to different remedies. The results revealed that remedies have little impact on whether compliance takes place or how quick it is. For example, the quantum of damages that a state has to pay does not affect how quickly the compensation is paid. Compliance is therefore unaffected by quantum. Although there are differences between different remedies (eg legislation takes longer to adopt than payment of compensation or other practical measures), our results show that remedies - whether monetary or non-monetary - do not act as incentives on states. This is partly also because the Court plays a conservative role and rarely specifies reparations, instead it is states themselves that choose which remedial measures they intend to adopt. As a consequence, states often propose the full menu of remedies and there is little to distinguish one case from another in this respect.
Moving beyond remedies, the project also studied the role of different actors in the compliance process at the state level. We produced country reports for several states in Eastern Europe and Scandinavia and undertook a social network analysis to understand which actors play a role in compliance. These range from executive, judicial, legislative, nongovernmental, and other actors and their role is different depending on the subject matter of the case, but also whether the case ends up closed (complied with) or not. For example, in most of our networks, non-governmental organisations only become engaged on compliance questions when the traditional organs of state - administrative and executive - fail to undertake the required steps to compliance. More broadly, we tested the structures of compliance networks - whether these were decentralised or centralised, ie with a specific organ coordinating compliance across the state. We found that although often very efficient, centralised networks are vulnerable to capture by autocratic leaders. In these cases, when the central organ is disabled, compliance as a process can collapse.
Finally, our computer simulation sought to understand whether peer pressure plays a role in the Council of Europe. In our model, we investigated how states learn from one another within the Council of Europe, how they imitate each other, and what this means for the compliance within the system. Our first finding was that negative - non-compliant behaviour is more contagious than compliant behaviour and that the system veers towards non-compliance or compliance minimalism. As a consequence, we tested different interventions that would act preventatively. In this respect, we found, for example, that the role of the Department of Execution plays a crucial role in maintaining high expectations of states in the monitoring process, in issuing regular recommendations with best practice examples. In contrast to general recommendations, high connectivity between states does not lead to better human rights protection across the system. Instead, we found that states could benefit enormously from close mentoring state-to-state relationships, where they could learn from states who are better at compliance.
Moving beyond remedies, the project also studied the role of different actors in the compliance process at the state level. We produced country reports for several states in Eastern Europe and Scandinavia and undertook a social network analysis to understand which actors play a role in compliance. These range from executive, judicial, legislative, nongovernmental, and other actors and their role is different depending on the subject matter of the case, but also whether the case ends up closed (complied with) or not. For example, in most of our networks, non-governmental organisations only become engaged on compliance questions when the traditional organs of state - administrative and executive - fail to undertake the required steps to compliance. More broadly, we tested the structures of compliance networks - whether these were decentralised or centralised, ie with a specific organ coordinating compliance across the state. We found that although often very efficient, centralised networks are vulnerable to capture by autocratic leaders. In these cases, when the central organ is disabled, compliance as a process can collapse.
Finally, our computer simulation sought to understand whether peer pressure plays a role in the Council of Europe. In our model, we investigated how states learn from one another within the Council of Europe, how they imitate each other, and what this means for the compliance within the system. Our first finding was that negative - non-compliant behaviour is more contagious than compliant behaviour and that the system veers towards non-compliance or compliance minimalism. As a consequence, we tested different interventions that would act preventatively. In this respect, we found, for example, that the role of the Department of Execution plays a crucial role in maintaining high expectations of states in the monitoring process, in issuing regular recommendations with best practice examples. In contrast to general recommendations, high connectivity between states does not lead to better human rights protection across the system. Instead, we found that states could benefit enormously from close mentoring state-to-state relationships, where they could learn from states who are better at compliance.
The project has led to several major discoveries, which go beyond the state of the art.
First was unplanned and concerns the discovery and compilation of 10000 cases of friendly settlement before the European Court of Human Rights. To have a complete understanding of states' compliance practices and state behaviour, we mapped out the friendly settlement jurisprudence of the Court. We developed an additional database of friendly settlements to understand which type of cases get settled and by which countries and to see when and how states ‘hide’ certain violations and determine whether this prevents effective compliance. This discovery completely changes the narrative on compliance in relation to certain countries, since countries may be able to hide about 50% of all violations they make. Most importantly, it shows that the Court uses friendly settlement as a remedy, to address it own workload. Although general research on settlement had been undertaken before, there has been no empirical analysis of the Court's approach and the extent of the practice was unknown. The state of the art has considerably advanced in several ways: (a) there was no knowledge of the extent of settlement before or of how the process worked and what impact it had on victims (Fikfak, Against Settlement); (b) there was no understanding of how states had used the process of settlement strategically to avoid precedent setting judgments – our project specifically showed how autocratic leaders (Hungary, Turkey) make use of settlement; a fact that was not known before (Kos, Controlling the narrative; Kurban, Authoritarian Resistance); (c) this research added to the tool box of how backlash and pushback becomes visible or is expressed (Kos, Signalling).
In the future, we expect that the results we have reached with agent-based modelling will constitute a major breakthrough for the state of the art. This relates both to the utility of using this method in international law/relations and generating recommendations for the field, but also in terms of substantive policy advice it has generated on connectivity of states (eg pairing states together through mentoring relationships rather than a highly connected community).
First was unplanned and concerns the discovery and compilation of 10000 cases of friendly settlement before the European Court of Human Rights. To have a complete understanding of states' compliance practices and state behaviour, we mapped out the friendly settlement jurisprudence of the Court. We developed an additional database of friendly settlements to understand which type of cases get settled and by which countries and to see when and how states ‘hide’ certain violations and determine whether this prevents effective compliance. This discovery completely changes the narrative on compliance in relation to certain countries, since countries may be able to hide about 50% of all violations they make. Most importantly, it shows that the Court uses friendly settlement as a remedy, to address it own workload. Although general research on settlement had been undertaken before, there has been no empirical analysis of the Court's approach and the extent of the practice was unknown. The state of the art has considerably advanced in several ways: (a) there was no knowledge of the extent of settlement before or of how the process worked and what impact it had on victims (Fikfak, Against Settlement); (b) there was no understanding of how states had used the process of settlement strategically to avoid precedent setting judgments – our project specifically showed how autocratic leaders (Hungary, Turkey) make use of settlement; a fact that was not known before (Kos, Controlling the narrative; Kurban, Authoritarian Resistance); (c) this research added to the tool box of how backlash and pushback becomes visible or is expressed (Kos, Signalling).
In the future, we expect that the results we have reached with agent-based modelling will constitute a major breakthrough for the state of the art. This relates both to the utility of using this method in international law/relations and generating recommendations for the field, but also in terms of substantive policy advice it has generated on connectivity of states (eg pairing states together through mentoring relationships rather than a highly connected community).