Test Case Linkage: Civil Society and the Development of the Inter-American Court of Human Rights
What impact do civil society-led test cases have on developing courts? I draw upon the international courts, norm diffusion, and transnational advocacy networks literature to develop a theory of test case linkage. I argue that test case advocates can link the fate of the court and the fate of their movement. I hypothesize that courts may be more susceptible to test case linkage when the court is new, has undergone recent changes, or is deciding cases involving a new region, new issue, or controversial issue. My linkage typology suggests strong linkage can lead to a positive stimulus for the court's growth or a negative backlash, while weak linkages may lead to positive progression or negative disruption. I argue that test case advocates may have an obligation to the court when taking cases before developing courts.What factors determine whether a test case linkage is positive or negative? Using the overlap of literature on the effectiveness of international court, test cases, and transnational advocacy movements, I provide a framework of factors at least partially under the control of test case advocates that may contribute to test case efficacy: (1) usage, through usage balance and venue loyalty; (2) resources, such as litigation and mobilization costs; (3) expertise, including repeat player status, case selection, and information; (4) compliance, such as persistent, varied international and domestic mobilization. I theorize that if courts do not have sufficient resources or authority, test case advocates may have to fill in the gaps in these categories.Case studies in the Inter-American system suggest that the system might have been strongly linked to the anti-impunity movement that stimulated the court's growth as the justice cascade swept Latin American in the 1990s, while the Trinidad death penalty cases of the late 1990s might have led to a backlash in the Caribbean. The case studies suggest linkage outcomes may be influenced by pre-existing, well-funded, and mobilized transnational advocacy networks with domestic connections, as well as by usage imbalances, venue loyalty, and domestic connections. Lastly, findings suggest that the effects of linkage may linger for years.
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