Why Incorporate the ECHR? The Domestic Incentives of Human Rights Commitment

Abstract

Why do consolidated democracies incorporate international human rights law (IHRL) treaties into national law? Existing research suggests contrastive accounts of the participation of democracies in IHRL regimes. While overall more likely to ratify, consolidated democracies are sometimes reluctant to accept demanding human rights commitments and less likely than both newly democratic and authoritarian regimes to incorporate international law in their constitutions. To theorize why established democracies commit to IHRL, this paper provides a comparative process tracing of the decisions to incorporate the European Convention on Human Rights (ECHR) into national law in Denmark and Sweden in the early 1990s. Why did these solid democracies with an exceptional commitment to human rights wait over 40 years to give domestic effect to a treaty they had helped create? Assessing rival theories of state commitment to human rights norms, the findings suggest that contextual developments in European law provided an opportunity for domestic political elites to seek insurance by incorporating the ECHR to place constraints on executive power. The argument qualifies claims about material strategizing or socialization to European norms as the primary drivers of incorporation.