Why and how do international courts justify decisions with citations to their own case law? We argue that, like domestic review courts, international courts use precedent at least in part to convince 'lower' (domestic) courts of the legitimacy of judgements. Several empirical observations are consistent with this view, which are examined through a network analysis of European Court of Human Rights (ECtHR) citations. First, the Court cites precedent based on the legal issues in the case, not the country of origin. Second, the Court is more careful to embed judgements in its existing case law when the expected value of persuading domestic judges is highest. These findings contribute to a developing literature that suggests international and domestic review courts develop their authority in similar ways. Why and how do international courts justify their rulings with citations to their own case law? Formally, the legal effect of an international court ruling is limited to the specific dispute it resolves. Yet, international courts frequently treat their past decisions as if they set precedents for new ones. A straightforward explanation for this divergence between formal rule and judicial practice is that relying on past decisions improves efficiency in the internal workings of the court. While this is undoubtedly part of the story, we argue that international courts also strategically use case citations to enhance the degree to which their decisions are perceived as legitimate by external audiences. International courts depend on domestic actors for compliance. While political actors are unlikely to be persuaded by legal justifications, domestic judges may well be more inclined to implement decisions that demonstrate legal consistency across time and place. We suggest that an international court adjusts the choice of case citations to the demands of domestic legal audiences and exerts more effort on embedding decisions in case law when the expected impact of persuading these audiences is highest. Importantly, this implies that an international court maximizes its legitimacy by avoiding fragmentation in its case law along lines of legal culture or other country-specific factors. This article examines whether case citation patterns in the most prolific international court, the European Court of Human Rights (ECtHR), fit these theoretical expectations. * Department of Political Science, University of California-San Diego (email: ylupu@ucsd.edu); and Edmund A. Walsh School of Foreign Service and Government Department, Georgetown University (email: ev42@georgetown.edu), respectively. This research was supported in part by the Laboratory on International Law and Regulation at UCSD. Earlier versions of this article were presented at the University of California-San Diego, Cornell University, the 2010 International Studies Association Annual Convention, the 2010 Political Networks Conference, the 2010 American Political Science Association Annual National Conference, and the 2010 Pan-European Conference on International Relations. The authors wish to thank the participants in these seminars, and also Eyal Benvenisti, Mike Bommarito, Anna Dolidze, Asif Efrat, Chris Fariss, James Fowler, Larry Helfer, Dan Katz, Daniel Klerman, Sarah Kreps, David Lake and Mitchel Lasser for useful comments and suggestions.
Lupu and Voeten REF studied the case law of the European Court of Human Rights using hubs and authorities as proxies for statistical analysis of the case law properties.
Precedent in International Courts: A Network Analysis of Case Citations by the European Court of Human Rights
British Journal of Political Science
Economics