Recursive Norm Development: The Role of Supranational Courts
| Author | Druscilla Scribner,Tracy Slagter |
| Date | 01 September 2017 |
| DOI | http://doi.org/10.1111/1758-5899.12453 |
| Published date | 01 September 2017 |
Recursive Norm Development: The Role of
Supranational Courts
Druscilla Scribner and Tracy Slagter
University of Wisconsin Oshkosh
Abstract
How do supranational regional courts, which occupy a space between the national and international, contribute to normative
development? We demonstrate that norms are dynamic and require ‘translation’in order to impact the international system
and find expression at the national level. Norm translation is a recursive and dynamic process. We connect this process with
research on transnational legal orders (TLOs) and introduce the notion of an ‘adjudicatory space’in which international norms
are interpreted by supranational judicial actors such as the European Court of Human Rights and the Inter-American Court of
Human Rights. We present a case study demonstrating how supranational courts utilize case-law from many different sources
to apply, refine, and cross-culturally translate meanings of a norm (in this case violence against women as gender discrimina-
tion) into different regional and national cultural contexts. The recursive process of cross-referencing and restatement of
norms in supranational adjudicatory space demonstrated in the case study suggests that norm development is progressive,
non-linear, and non-hierarchical. The case study also indicates that the locus of norm translation and refinement is not con-
fined to well-established human rights machinery of Europe; in the Global South local and transnational norm entrepreneurs
are challenging social and legal norms.
Policy Implications
•Norm development is recursive: dynamic, non-linear, and non-hierarchical.
•Supranational/regional courts are an undertheorized but crucial location for international norm development, refinement,
and evolution.
•Norm refinement occurs an in ‘adjudicatory space’that includes not only courts but also other global and transnational
legal actors.
•Normative evolution occurs with considerable contribution of actors from the Global South and North.
•Regional courts allow local actors to reach around and beyond state institutions.
Supranational courts and norm development
In 2008 Nahide Opuz, a victim of domestic violence at the
hands of her husband, alleged that Turkish State authorities
had failed to take measures to protect her and her mother
from an escalating pattern of domestic violence that began
in 1995. The violence resulted in life-threatening harassment
for Opuz and the murder of her mother in 2002. Opuz v.
Turkey, decided by the European Court of Human Rights
(ECtHR) in 2009, was a groundbreaking judgment.
1
It was
the first time the ECtHR faced a criminal justice gender dis-
crimination claim under Article 14, the European Convention
on Human Rights’main anti-discrimination provision. The
regional human rights court had only recently, in D.H. and
Others (2007), established general principles regarding dis-
crimination claims under Article 14.
2
Although there was
growing recognition of an international norm that gender-
based violence is a form of discrimination, this norm had
not previously been settled in European human rights law.
In Opuz v. Turkey the ECtHR translated this norm into its
regional jurisprudence. To do so it drew on decisions and
resolutions of other international and regional bodies,
including the more established jurisprudence of the Inter-
American human rights system. In November 2009 the Inter-
American Court of Human Rights (IACtHR) similarly incorpo-
rated the ECtHR’s reasoning in its regional judgment in Cot-
ton Field vs. Mexico.
3
Like Opuz v. Turkey, Cotton Field was a
landmark judgment that refined an evolving international
norm linking gender-based violence and gender discrimina-
tion. This lateral communication between regional suprana-
tional courts of human rights raises important theoretical
questions about how we think about processes of norm dif-
fusion, development, and settlement. In particular, cases like
these demand a theoretical shift away from thinking about
norms as static, linear, and dominated by cases and courts
from the Global North. A more dynamic, recursive approach
is critical to understanding the process of normative refine-
ment and translation in diverse cultural contexts.
The process by which norms emerge, gain support, and
become the new standard is theorized in Finnemore and
Sikkink’s (1998) ‘norm life-cycle’, which has become a text-
book way to describe the birth and diffusion of international
©2017 University of Durham and John Wiley & Sons, Ltd. Global Policy (2017) 8:3 doi: 10.1111/1758-5899.12453
Global Policy Volume 8 . Issue 3 . September 2017
322
Research Article
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