Human Rights Nudge / Compliance and Remedies

The problem

In September 2017, the Council of Europe published the news that out of all judgments rendered by the European Court of Human Rights since its inception in 1959, more than half – 10,000 judgments – still remained unenforced. Regardless of the efforts undertaken through the many reforms of the Convention system and through the expansion of the Convention to 46 European jurisdictions, states do not execute judgments of the Court. This represents a major problem for the Court and for human rights in Europe.

When individuals are tortured, or when their human rights are otherwise violated by European governments or domestic authorities, they turn to the Court to review state actions. If they are successful in proving a violation, the Court may award them damages or may require the state to adopt other actions to redress the violations. But if states refuse to abide by the Court's judgments or continue to commit similar violations, judgments remain just words on paper.

What we did

The work began with an empirical study of 12,000 cases of the European Court of Human Rights, to determine the compliance practices of states and their link to different remedies. Drawing on behavioural economics and psychology, we analysed how money, language and shaming affect state behaviour.

Moving beyond remedies, the project studied the role of different actors in the compliance process at state level. We produced country reports for several states and undertook a social network analysis to understand which actors matter, and we tested the structures of compliance – whether national networks are decentralised or centralised, with a specific organ coordinating compliance across the state.

Finally, a computer simulation asked whether peer pressure plays a role in the Council of Europe: how states learn from one another, how they imitate each other, and what this means for compliance across the system.

What we found

• Remedies matter less than expected. Remedies have little impact on whether compliance takes place or how quickly. The Court plays a conservative role and rarely specifies reparations; instead states themselves choose which remedial measures to adopt, often proposing the full menu, so there is little to distinguish one case from another.
• Centralised compliance networks are efficient but fragile. Although often very efficient, centralised networks are vulnerable to capture by autocratic leaders: when the central organ is disabled, compliance as a process can collapse.
• Non-compliance is contagious. Non-compliant behaviour spreads more readily than compliant behaviour, and the system veers towards non-compliance or compliance minimalism. The Department of Execution plays a crucial role in maintaining high expectations and issuing regular recommendations with best-practice examples. High connectivity between states does not by itself improve human rights protection; close, mentoring state-to-state relationships do.
• A third of cases are settled. 33% of all international human rights cases end up being settled rather than leading to a finding of violation. The Court works together with states to encourage settlement: states use it strategically to avoid precedent-setting judgments and pre-empt substantive changes in domestic law, while bureaucrats within the Court encourage its use to reduce their own workload. These shared goals lead to behavioural mechanisms, including nudging, that discourage victims from pursuing their claims.