INTRODUCTION

When Istanbul Governor's office ordered the suspension of Tüm Haber Sen, Turkey's first press workers' union, 4 days after it was established in 1992, the president of the union, İsmail Çınar, was not surprised. His union was one of the few public sector unions in the country that had been established and promptly shuttered within the past 3 years. The Turkish courts dismissed unionists' appeals, ruling that public sector workers did not have the right to establish unions. Losing hope in the Turkish justice system, Çınar took the case to the European Court of Human Rights (ECtHR). In a landmark judgment, the ECtHR ruled that Turkey's blanket rule against unionization in the public sector constituted a violation of the right to association. Tüm Haber Sen and Çınar v. Turkey (2006) became part of a series of landmark cases where the ECtHR recognized fundamental trade union rights as human rights. The highest and the most important cases that set precedents were brought primarily by Turkish unionists, followed by British unionists. In response to these cases, the ECtHR recognized basic trade union rights as fundamental human rights.

The ECtHR was not an obvious target for labor activists. In the 1990s, the ECtHR did not have a single pro-union judgment that Turkish and British activists could build on in bringing their cases. As were most human rights courts, the ECtHR was established mainly to hear cases on civil and political rights and, aside from a vague reference to the right to unionize under the right to freedom of association, core labor standards were absent from the European Convention of Human Rights (the European Convention) on which ECtHR decisions are based. This restricted view of labor rights, however, was not universal; other international institutions, such as the International Labor Organization (ILO) and the Court of Justice of the European Union (CJEU) have provisions that explicitly protect trade union rights and, especially with the ILO, a clearer institutional commitment to advancing unionists' concerns. Why, then, did Turkish and British unions specifically target the ECtHR? How did they choose which international institution to direct their mobilization efforts among different alternatives?

Answering these questions is important for understanding the judicialization of politics at the international level. International courts have risen to prominence in the last few decades and have started to weigh in on important policy issues (Reference Alter, Helfer and MadsenAlter et al., 2016). The proliferation of legal avenues at the international level has sometimes been described as international legal pluralism (Reference Burke-WhiteBurke-White, 2004). The diversification of legal remedies offered by different institutions raises questions about how activists devise their litigation strategy. Do they target multiple institutions at once or do they focus their mobilization efforts on one preferred institution? Do they seek courts with existing favorable jurisprudence or institutional reach? How do they come to identify these features and devise their litigation strategy?

Though much of the legal mobilization theory grew out of studies based on domestic courts, there is now an increasing number of studies examining legal mobilization at the international level (Reference AnagnostouAnagnostou, 2014; Reference CichowskiCichowski, 2007, Reference Cichowski2016; Reference Conant, Hofmann, Soennecken and VanhalaConant et al., 2017; Reference GuillaumeGuillaume, 2015; Reference Hodson and AnagnostouHodson, 2014; Reference KahramanKahraman, 2018; Reference PavonePavone, 2022; Reference Sundstrom and SperlingSundstrom & Sperling, 2020; Reference Van der VetVan der Vet, 2018). Most of these, however, focus on why and how activists engage in legal mobilization at a single international court and fail to account for the complex dynamics of multiple institutions at the international level. Similarly, despite a growing literature on regime complexity and forum shopping at the international level, much of the extant research focuses on trade disputes where the litigants are generally states and businesses, and compliance with the rulings is often quite high in contrast to rulings on human rights issues (Reference Hafner-Burton, Victor and LupuHafner-Burton et al., 2012). In these types of disputes, the decision to litigate at an international institution is heavily shaped by the power asymmetries and the economic and political relationships among the disputants (Reference BuschBusch, 2007; Reference Gomez-Mera and MolinariGomez-Mera & Molinari, 2014). Activist groups do not enjoy the bargaining power of states and businesses at the international level and have little leverage in securing compliance. We know little about whether and how activists choose among different international institutions to advance their social justice claims.

Trade union rights provide for an especially fruitful issue area to investigate the effects of international legal pluralism on legal mobilization as there are multiple adjudicative bodies—at both the regional level in Europe and internationally—that have jurisdiction on this issue. Based on a comparative study of British and Turkish unions' legal mobilization efforts and an analysis of relevant case law at international institutions, I offer a theoretical framework to understand how activists engage in international legal mobilization. My findings show that activists, aided by their lawyers, engage in strategic mobilization by probing multiple avenues to find the best institution to direct their litigation efforts. The obvious court features, such as de jure rights protections, or existing case law, do not necessarily predict success for activists. Constructing a typology of international court features that inform activists' decision-making process, I find that activists make the strategic calculation that courts with high judicial authority and high degrees of judicial responsiveness can be made into labor courts through strategic litigation, even if they have weak de jure rights protections. Activists target these international institutions primarily for leveraging structural reforms at the domestic level and secondarily for shaping international norms.

Activists' efforts in identifying the right venue amount to more than just forum shopping, which implies that the remedies provided by international institutions are unchanging. Instead, employing a sociolegal approach, I show that an international court's jurisprudence on a new issue area is built through an iterative process between the activists' strategic litigation efforts and an international court with high judicial authority responding to activists' claims. Finally, this article makes an empirical contribution by mapping the landscape of legal remedies available for European trade union activists at the international level and demonstrating how activists, aided by their lawyers, navigated among these options to transform the ECtHR into a labor rights court.

THEORIZING LEGAL MOBILIZATION AND MULTIPLE AVENUES AT THE INTERNATIONAL LEVEL

Activists generally resort to international litigation when domestic channels are unresponsive to their claims (Reference Alter and VargasAlter & Vargas, 2000; Reference Conant, Hofmann, Soennecken and VanhalaConant et al., 2017; Reference Henry, Sundstrom, Winston and Bala-MillerHenry et al., 2019; Reference HilsonHilson, 2002; Reference KahramanKahraman, 2018; Reference Keck and SikkinkKeck & Sikkink, 1998). In collective litigation efforts, activists often keep their eyes on systemic changes and long-term goals, rather than obtaining relief for individual applicants. They use favorable rulings to pressure governments into undertaking policy changes, which may not match the expectations of individual applicants, who are more focused on obtaining immediate relief to their grievances (Reference AnagnostouAnagnostou, 2014; Reference SundstromSundstrom, 2014; Reference Van der VetVan der Vet, 2012). Activists may also aim to create new norms through setting precedents at international institutions. As recognized by many scholars, human rights are malleable and contested; what counts as a human right may change over time (Reference Keck and SikkinkKeck & Sikkink, 1998; Reference MerryMerry, 2006; Reference WienerWiener, 2007). Just as activists set new norms in international politics through transnational activism (Reference CarpenterCarpenter, 2007; Reference Finnemore and SikkinkFinnemore & Sikkink, 1998), activists and lawyers can set new legal norms by bringing new rights claims before international institutions (Reference AyoubAyoub, 2016; Reference CichowskiCichowski, 2007; Reference VanhalaVanhala, 2010).

With the proliferation of international institutions in the past few decades, there is a plurality of legal avenues available for activists to pursue their goals, but we lack a study that examines how activists choose among these multiple options. I review here the existing scholarship on international legal mobilization to generate some expectations regarding the factors that may make some institutions more attractive to activists than others. Scholars of legal mobilization have suggested that legal opportunity structures at international institutions can serve as a pull factor for legal mobilization (Reference Alter and VargasAlter & Vargas, 2000; Reference ConantConant, 2006; Reference HilsonHilson, 2002). The term generally refers to static features that shape actors' decision-making processes, including the availability of legal stock and rules regarding access (Reference Conant, Hofmann, Soennecken and VanhalaConant et al., 2017). Though judges' responsiveness has sometimes been included as part of legal opportunity structures (Reference HilsonHilson, 2002), most studies have focused on the structural aspects of this term (Reference VanhalaVanhala, 2018). I build on constructivist approaches by analyzing both the institutional and agential factors that shape activists' litigation strategy at the international level (Reference Conant, Hofmann, Soennecken and VanhalaConant et al., 2017; Reference VanhalaVanhala, 2018). Some of the factors identified here are dynamic as they may evolve based on changing political conditions and interactions between different actors.

Rules regarding standing constrain who has access to judicial institutions. For example, some international organizations only accept petitions from designated civil society organizations in the form of collective petitions or member states, while others accept individual petitions. Institutions that accept individual petitions are more accessible to a wider group and may likely receive a higher number of cases. Moreover, while some international institutions have mandatory jurisdiction on all member states, others allow individual or collective petitions based on ratification from member states. Studies suggest the accessibility of an institution is an important factor in encouraging legal mobilization (Reference Alter and VargasAlter & Vargas, 2000; Reference Conant, Hofmann, Soennecken and VanhalaConant et al., 2017; Reference HilsonHilson, 2002).

De jure rights protection refers to all available laws, including formal legal rights guaranteed in the treaties or the precedents set by an international court, drawn upon by judges in their decision-making process. They are, therefore, determinant of the kinds of legal remedies available for activists who bring their grievances before courts (Reference ConantConant, 2006; Reference HilsonHilson, 2002). De jure rights protection can vary depending on ratification processes of member states, as some states may place reservations on certain articles or clauses. We may expect that the institutions that do not allow reservations as well as those with an established favorable case law are going to be more attractive to activists.

What is perhaps more important than de jure rights is judicial responsiveness. Extant research suggests that judges sitting at both domestic and international courts often to toe the boundaries of their authority by responding to deferrals or threats of override by the executive or legislative branches (Reference Carruba, Gabel and HanklaCarruba et al., 2008; Reference Larsson and NaurinLarsson & Naurin, 2016; Reference Stiansen and VoetenStiansen & Voeten, 2020). Hence, we see periods of activism and restraint in how courts respond to certain issues, regardless of the existing laws and legislations. International courts are wary of the possible backlash to their decisions, which means that judicial responsiveness will be shaped by the changing international political environment in which the judges who interpret those rules are embedded. Moreover, judges' perception of certain issues as human rights violations may change over time due to changing social norms. The ECtHR, for example, established that the European Convention is a “living instrument” and takes “European consensus” into account when overturning previous rulings or setting new precedents (Reference DzehtsiarouDzehtsiarou, 2015). Especially during periods of judicial activism, activists can help shape the kinds of precedents international institutions set by bringing in new rights claims before them. The persuasive arguments, facts, and evidence about on-the-ground violations summoned by legal experts provide a much-needed supply of data to judges building case law in a new issue area (Reference AnagnostouAnagnostou, 2014; Reference CichowskiCichowski, 2007, Reference Cichowski2016; Reference HaddadHaddad, 2018; Reference Hodson and AnagnostouHodson, 2014; Reference KurbanKurban, 2020; Reference PavonePavone, 2022; Reference SundstromSundstrom, 2014; Reference Van der VetVan der Vet, 2018). This iterative process suggests that judicial responsiveness and legal mobilization are mutually constitutive of each other.

Many favorable decisions activists obtain from international institutions may remain unenforced due to resistance from states. An organization with a strong judicial authority will be taken more seriously by member states (Reference Alter, Helfer and MadsenAlter et al., 2016; Reference Madsen, Cebulak and WiebuschMadsen et al., 2018). The recognition and “meaningful steps” undertaken by states to give effect to court rulings will boost judicial authority (Reference Alter, Helfer and MadsenAlter et al., 2016). High rates of full compliance with rulings from international institutions are rare, especially on human rights issues (Reference Hawkins and JacobyHawkins & Jacoby, 2010; Reference SimmonsSimmons, 2009). The oversight mechanism of the international institution and peer-pressure from other member states can expand the judicial authority of an institution (Reference Alter, Helfer and MadsenAlter et al., 2016; Reference Çalı and KochÇalı and Koch, 2014). Yet, individual member states' compliance rates often vary depending on political will, state capacity, and pressure from activists at the domestic level (Reference Alter, Helfer and MadsenAlter et al., 2016; Reference AnagnostouAnagnostou, 2013; Reference HillebrechtHillebrecht, 2014; Reference SimmonsSimmons, 2009). Although judicial authority is often discussed within the context of international courts, I include here quasi-judicial institutions that settle disputes before them. While such institutions issue nonbinding rulings, scholars have noted that committees that oversee the enforcement of widely accepted treaties—such as the ICCPR, the CEDAW, or the ILO Conventions—exhibit court-like features, including the impartiality and independence of committee members and the ability to issue authoritative interpretations of international treaties ratified by member states (Reference Alston and GoodmanAlston & Goodman, 2013, pp. 834–35; Reference Weisband, Meckled-Garcia and ÇalıWeisband, 2006, p. 124). Recommendations and views issued by such committees can provide tools for activists to pressure governments into changing their behavior, though compliance will vary depending on the above-mentioned domestic factors (Reference HawkinsHawkins, 2002; Reference SimmonsSimmons, 2009; Reference ZwingelZwingel, 2016). Overall, international courts tend to have higher compliance rates than quasi-judicial institutions due to having stronger oversight mechanisms and issuing legally binding judgments and, hence, are more likely to be attractive to activists.

Reference Alter, Helfer and MadsenAlter et al. (2016) suggest that a court will have extensive authority if its rulings are recognized by and influence the actions of multiple audiences, including other international or domestic court judges, government officials, activists, and scholars. An institution may have extensive authority if its rulings shape international norms, even if compliance with its individual rulings is low. It is possible to expect a quasi-judicial institution to wield more extensive authority than an international court, if that institution is widely recognized as a norm-setter in the international arena. References made to such decisions by domestic courts, other international institutions, and human rights groups will boost the extensive authority of such institutions. Therefore, recognition of new rights claims by quasi-judicial institutions with high extensive authority can be appealing for activists. We must also note here the distinction between judicial authority, measured based on actual practices of courts, versus judicial legitimacy, measured based on actors' normative perceptions of an institution's authority (Reference Alter, Helfer and MadsenAlter et al., 2016; Reference Peters and SchafferPeters & Schaffer, 2013). Although normative considerations regarding the legitimacy of an institution's authority can guide activists' behavior, activists are more likely to be motivated by pragmatic and strategic considerations.

Finally, legal mobilization scholars have suggested that legal and political opportunities are not fixed structures that have a uniform effect on all actors' decision-making processes (Reference McCannMcCann, 1994; Reference VanhalaVanhala, 2018). Early studies on cause lawyering demonstrate that activist-lawyers play key roles in perceiving these opportunities and organizing collective litigation efforts accordingly (Reference Sarat and ScheingoldSarat & Scheingold, 1998). Reference VanhalaVanhala (2018) argues that access to pro-bono legal support or in-house lawyers, which she calls “strategy entrepreneurs,” explains why some NGOs pursue litigation strategy and others do not. Lawyers' role is perhaps even more important in international litigation as domestic actors may be ill-informed about the availability of legal remedies at the international level. Scholars of international legal mobilization have shown that activist-lawyers, often working at transnationally connected and wealthy NGOs, lead litigation campaigns and help build an international court's case law in a new issue area (Reference AnagnostouAnagnostou, 2014; Reference CichowskiCichowski, 2007, Reference Cichowski2016; Reference HaddadHaddad, 2018; Reference Hodson and AnagnostouHodson, 2014; Reference KurbanKurban, 2020; Reference PavonePavone, 2022; Reference SundstromSundstrom, 2014; Reference Van der VetVan der Vet, 2018).

Most of these studies on international legal mobilization focus on the role of lawyers and activists in devising a litigation strategy at a single international court, we know little about how activists navigate among multiple international institutions.Footnote ¹ Findings here contribute to the study of legal professionals in international legal mobilization by demonstrating that lawyers can lead the efforts to navigate among multiple international institutions. I suggest that a group of committed lawyers act as strategists by identifying the target institution for legal mobilization and devising a litigation strategy appropriate for the goals activists wish to pursue. This process is based on their legal expertise on the institutional features of these institutions as well as their evaluations based on experiences gained from litigation efforts. The emphasis on perception of these opportunities does not mean that the judicial authority of an institution or the protection of de jure rights is a subjective factor that changes based on lawyers' assessment of these institutions. The availability of expert lawyers who can evaluate these institutions and identify them as opportunities is a necessary condition for activists to probe litigation at multiple institutions.

This research theorizes how activists, guided by their lawyers, engage in legal mobilization in an increasingly complex international human rights regime. I show that international litigation strategy is not always linear and that activists' target institution may change based on the goals they are pursuing. Findings indicate that labor activists' choice of target institution for litigation is motivated primarily by influencing structural reforms and secondarily by norm-setting. Seeking remedy for individual applicants is not a priority in international litigation, but if activists fail to instigate reforms to prevent further violations, then they may end up taking repeat cases to international courts for the benefit of individuals.

Figure 1 demonstrates how lawyers probe and choose the appropriate international institutions for activists to pursue their goals. The type of judicial authority an institution wields matters. Lawyers primarily target institutions with high compliance rates to leverage structural reforms at the domestic level. However, they also take cases to international institutions with low rates of compliance if these institutions have extensive judicial authority to create new international norms. This strategy reveals lawyers' understanding of the indirect effects of judicial authority: the recognition of new rights claims by these institutions helps them in the long term as these novel norms may be taken up by other international institutions with high compliance rates or by domestic courts.

FIGURE 1

Legal mobilization and multiple legal avenues at the international level

In contrast to the emphasis placed on de jure rights protection by scholars of legal opportunity structures, I suggest that an institution with high de jure rights protection is not a good option for activists unless judges are responsive to the claims brought before them. Lawyers probe for receptiveness to their claims at multiple institutions and take more cases to the institution that is most responsive to their claims. This iterative process results in a signaling game between the judges and activists/lawyers. The more receptive judges are to cases brought by activists, the more cases activists bring before them. As a result, through their strategic litigation, activists, aided by their lawyers, can make an institution with low de jure rights into an institution that provides high protection. While there is a forum shopping aspect to the litigation strategy at the international level, whereby lawyers probe for judicial responsiveness and judicial authority at multiple institutions, findings show that legal remedies are not static structures as is often presumed by the literature on regime complexity or legal opportunity structures (Reference Alter and VargasAlter & Vargas, 2000; Reference BuschBusch, 2007; Reference ConantConant, 2006; Reference Gomez-Mera and MolinariGomez-Mera & Molinari, 2014; Reference HilsonHilson, 2002). Instead, labor activists' ability to transform a court that was originally designed as a civil rights court into a court that protects labor rights confirm that legal and political opportunity structures are malleable and that they can change with bottom-up legal mobilization.

MAPPING THE LANDSCAPE OF AVAILABLE INTERNATIONAL LEGAL AVENUES FOR ORGANIZED LABOR

Based solely upon its limited statutory commitments to labor rights and existing case law, the ECtHR was not an obvious choice for labor activists pursuing international litigation strategy. Rather, it was the ECtHR's judicial responsiveness and authority that proved decisive. In this section, I lay out the landscape of all international and regional institutions that European workers can pursue for trade union rights violations. I provide an overview of the legal mandate, judicial authority, and judicial responsiveness of these institutions (Table 1).

TABLE 1

Legal avenues for trade union rights at the international level

Two leading institutions established in the aftermath of World War II, the UN and the Council of Europe (CoE) have adopted a divided approach to human rights by delegating the protection socioeconomic rights to institutions with weaker monitoring systems, while establishing stronger safeguards for the protection of civil and political rights. The UN Committee on Economic, Social, and Cultural Rights (CESCR) oversees the implementation of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which provides strong de jure rights protection for workers, including the rights to unionize and strike. But its enforcement mechanism is notoriously weak (Reference Alston and GoodmanAlston & Goodman, 2013). An individual complaint mechanism entered into force in 2013, but access is limited as the optional protocol has been ratified by only 26 states, including 12 European states.

The CoE, similarly, delegated the oversight of socioeconomic rights to a much weaker monitoring body, namely the European Committee on Social Rights (ECSR). The charter explicitly protects a detailed set of trade union rights (Articles 5 and 6) and the committee has been responsive to cases brought by unions (LO and TCO v. Sweden 2012). But most member states have many reservations on the articles of the European Social Charter (ESC) and only 15 out of 46 CoE members have accepted the collective complaint mechanism, resulting in the ECSR having only limited extensive authority. Therefore, two institutions that provide strong de jure rights on labor rights are not good options for most European unions to advance their claims due to their weak authority and limited accessibility.

Trade unions have historically turned to the ILO, the international institution with the highest de jure rights protections for workers, to garner international support for their claims, albeit with mixed results for success. The ILO features the most detailed set of international rules on labor rights and is widely recognized as a norm-setter in this area. In addition to the periodic reporting system, it provides a special complaint mechanism where worker's organizations, employers, or member states can directly bring cases regarding violations of freedom of association before the Committee on Freedom of Association (CFA), which has representatives from the ILO's tripartite supervisory body (governments, employers, and workers organizations). Ratification of ILO Conventions varies by member state, but complaints can be filed at the CFA regardless of ratification status.Footnote ² The CFA is highly responsive to claims brought by unionists and the complaint procedure is frequently used by workers' organizations. Up until today, the committee has examined over 3300 cases. Although the CFA was not established as an adjudicative body empowered to issue binding rulings, over time, it has come to “operate as a judicial tribunal” as it settles the disputes brought before it and issues authoritative interpretations of ILO Conventions, which are legally binding on states once they are ratified (Reference Weisband, Meckled-Garcia and ÇalıWeisband 2006, p. 124). States submit reports directly to the CFA to explain the measures they have undertaken in compliance with the recommendations issued. Overall compliance, however, has been low, with some countries taking CFA recommendations more seriously than others.Footnote ³ Though the low compliance rate has been criticized by activists and experts for a long time, the CFA recommendations have frequently been referenced and adopted by other international organizations, national courts, and NGOs as standards on labor rights (Reference Anner and CarawayAnner & Caraway, 2010; Reference Weisband, Meckled-Garcia and ÇalıWeisband 2006). Consequently, while the CFA's judicial authority is limited, it has extensive authority.

The CJEU is the most effective international adjudicative body in Europe and, due to the horizontal and direct effect it has on member states, is more accurately described as a supranational court. It is a court with a very high compliance rate and extensive authority (Reference KelemenKelemen, 2016). As an EU institution, this court is only available to 27 member states. Core trade union rights, including the freedom of association (Article 12), the right to collective bargaining, and the right to take collective action (Article 28) are explicitly protected under the Charter of Fundamental Rights of the European Union. Most trade union cases end up before the Court of Justice (ECJ), a part of the CJEU system, through the preliminary ruling procedure which allows national court judges to refer cases to Luxembourg. The ECJ's responsiveness, however, is low as it adopted a narrow interpretation of trade union rights. In a series of cases starting in 2007, the judges prioritized the economic freedoms of corporations over trade union rights, intensifying the debates regarding the role of the European economic integration on dismantling the welfare states and undermining organized labor (Reference DaviesDavies, 2008; Reference Ewing and HendyEwing & Hendy, 2010). The court refrained from integrating ILO conventions in its interpretation of union rights, and the ILO's Committee of Experts expressed concern regarding the restrictive impact of ECJ judgments, especially on the right to strike.Footnote ⁴

The ECtHR has much stronger judicial powers and a more effective enforcement mechanism than the ECSR. The court grants broad access to individuals, societal associations (including trade unions), and member states. The ECtHR has become a strong actor in European politics in the post-1990 period. After the collapse of the Soviet Union, the number of member states doubled, and its case law grew precipitously. To date, the court has processed over a million cases (ECtHR, Statistics 2019). In 1998, the right of individual petition to the court and the ECtHR's jurisdiction have become compulsory for all CoE members. The ECtHR is often singled out among international human rights courts for its relatively high compliance rate, its success in influencing policy outcomes across Europe, and its extensive authority (Reference Alter, Helfer and MadsenAlter et al., 2016; Reference Helfer and VoetenHelfer & Voeten, 2014; Reference HillebrechtHillebrecht, 2014). The ECtHR wields stronger judicial authority than the CFA, not only because the former issues legally binding rulings, but also because the execution of the ECtHR rulings are overseen by the Committee of Ministers, the executive arm of the CoE, which increases the peer pressure on individual states for compliance (Reference Çalı and KochÇalı and Koch, 2014). However, as with most international human rights courts, compliance with the ECtHR rulings varies by member states. Either due to lack of political will or state capacity, repeat offenders often fail to undertake measures that would prevent the same type of cases from being brought before the court (Reference AnagnostouAnagnostou, 2013; Reference KurbanKurban, 2020). Even liberal democracies tend to evade compliance with court's rulings on politically divisive matters or issues that require major structural reforms (Reference von Stadenvon Staden, 2018).

The ECtHR was an unlikely target for unions in the 1990s. The only articles in the European Convention that explicitly reference workers' rights are the prohibition of slavery and forced labor (Article 4) and the right to unionize, included under the freedom of association (Article 11).Footnote ⁵ Yet, until the 2000s, the Court did not find any violation of workers' rights under either of these articles. Although from the start the ECtHR rejected a strict separation between socio-economic rights and civil and political rights (Airey v. Ireland 1979), in its early years the Court eschewed decisions on trade union rights and left the settlement of these contentious issues to national courts (Swedish Engine Drivers v. Sweden 1976; National Union of Belgian Police v. Belgium 1975). Toward the end of the 1990s, the Court's approach changed dramatically and it started to fold basic trade union rights into its existing case law (Table 2). In establishing the right to join trade unions, the right to collective bargaining, and the right to strike, the ECtHR relied heavily on the jurisprudence of ILO bodies and the ECSR (Wilson v. the UK 2002; Demir and Baykara v. Turkey 2008). Litigation at the ECtHR, however, is a long-term strategy for activists because unlike the ECJ or the CFA, it only accepts cases after all domestic remedies are exhausted. This means that the litigation process at the domestic courts plus the ECtHR can sometimes take over a decade (Data S1).

TABLE 2

Notable trade union rights cases from Turkey and the United Kingdom before the ECtHR

METHODOLOGY

This research draws on an in-depth fieldwork conducted on trade union activism in Turkey and the UK as well as an analysis of trade union rights cases brought before relevant international institutions. In order to identify the institutions more sought out by labor activists, I created two sets of data composed of all complaints regarding trade union rights brought before the ILO's CFA and the CoE's ECtHR from 1980 to 2020.Footnote ⁶ I chose these two institutions due to their accessibility and high number of cases. Most cases before the ECJ are referred by national judges through the preliminary ruling procedure without regard for the preference of trade unions. Though I did not conduct a systematic review of the trade union rights cases before the ECJ, I used secondary literature to identify key cases and relied on British labor lawyers' accounts to determine their attitudes towards the ECJ. The collective complaint procedure at the ECSR is available for even a smaller number of European countries due to the reservations on its articles and the complaint procedure not being accepted by most member states. To date only 48 cases on trade union rights have been filed against 11 member states (HUDOC). Similarly, the CESCR has considered only one complaint regarding trade union rights and deemed it inadmissible for not having exhausted domestic remedies.Footnote ⁷ Though I did not conduct a systematic analysis of the decisions of these two institutions, I refer to their reports or rulings where necessary and include the views of lawyers and activists on them.

All cases in the database are hand-coded from the official websites of each institution into an excel sheet. The ILO data includes 329 cases brought before the CFA by workers' organizations against 39 European countries.Footnote ⁸ The ECtHR data consists of all trade union rights cases where Article 11 (freedom of association) was invoked or violated.Footnote ⁹ There are 165 cases brought by individuals or trade unions against 24 member states. I analyze these data cross-nationally and over time in the next section. Scholars of the ECtHR generally examine its rulings on the merits (judgments), excluding the failed cases deemed inadmissible (decisions) (Reference CichowskiCichowski, 2016; Reference Helfer and VoetenHelfer & Voeten, 2014; Reference HillebrechtHillebrecht, 2014). However, these failed cases provide valuable insights into the grievances for which individuals seek remedies and how it shuns new rights claims. The database, therefore, includes both the decisions on admissibility as well as final rulings on the merits.Footnote ¹⁰

Table 3 demonstrates that overall, the number of complaints before the CFA is higher than at the ECtHR. This is not surprising, since addressing trade union rights violations is a core purpose of the CFA, whereas the ECtHR only in the past two decades started to become responsive to such complaints. But the number of complaints before the CFA has slightly declined over the past three decades, while trade union rights cases before the ECtHR have increased over time.Footnote ¹¹ This increase in part reflects the overall growth in ECtHR case law, especially in the post-1990 period as new members joined the CoE. Though the labor cases comprise a fraction of the court's massive caseload, it is noteworthy that the proportion of trade union rights cases to all ECtHR judgments quadrupled from 0.1 percent in the 1990s to 0.4 percent in the 2010s.Footnote ¹²

TABLE 3

Trade union rights cases before the ECtHR and the CFA by decades

Note: Total number for the ECtHR includes all judgments and decisions. Total number for the ILO-CFA includes all applications made by workers' organizations.

Source: Data compiled by the author from HUDOC and Normalex.

My field research was primarily grounded in qualitative methodology, including participant observation, interviews, and archival work in Turkey and the UK.Footnote ¹³ I conducted 12 months of fieldwork over the period from 2013 to 2018. I conducted semi-structured interviews with 65 labor activists, lawyers, and scholars involved in international litigation.Footnote ¹⁴ I also undertook participant observation in conferences, meetings, dinners, and protest activities. In addition to formal meetings, I attended seminars and workshops composed of training sessions organized by lawyers and legal advocacy organizations to inform workers and trade unions about human rights law and of conferences or talks organized by academics, politicians, and legal experts. While all fieldwork data provided insights on international legal mobilization, I draw more heavily on interviews with lawyers here since they are more knowledgeable about the legal remedies offered by different international institutions and lead litigation efforts. Additionally, I conducted process tracing of landmark cases from Turkey and the United Kingdom (Reference Bennett, Checkel, Bennett and CheckelBennett & Checkel, 2014). I analyzed documents related to labor activists and lawyers' efforts prior to filing a case at an international court, including litigation processes at domestic courts. I also documented the major political events that triggered a change in activists' litigation strategy and international institutions' responses to trade union rights cases.

Previous studies suggest that there is often variation among unions' attitudes toward litigation. Some unions may be resistant to litigate on thorny issues, such as pay equity, due to their members' interests (Reference GuillaumeGuillaume, 2015), others may contend that litigation detracts from the rank-and-file mobilization that unions have traditionally used (Colling 2006; Lavage 2009). Yet other studies have shown that labor activists may pursue litigation strategically despite being aware of the limitations of legal remedies (Reference KahramanKahraman, 2018; Reference McCannMcCann, 1994; Reference McCann and LovellMcCann & Lovell, 2020; Reference MeakinMeakin, 2020; Reference O'Sullivan, Turner, Kennedy and WallaceO'Sullivan et al., 2015). I bracket these questions on unions' divergent attitudes towards litigation, since the purpose of the article is to understand how unions navigate among different options at the international level rather than why they turn to international law. The analysis, therefore, focuses on those unions that are willing to engage in international litigation.

SELECTION OF CASE STUDIES ON TRADE UNION ACTIVISM

I chose Turkey and the United Kingdom due to the frequency and importance of trade union rights cases they bring before international institutions (Table 4 and 5). Activists from Turkey have brought the highest number of cases before both the CFA and the ECtHR in the post-1990 period. Cases from the United Kingdom rank second after Turkey before the ECtHR and fifth after Turkey before the CFA. Russia or Spain could potentially be good candidates for a paired study with Turkey. The focus on the United Kingdom allowed me to analyze labor lawyer and activists' attitudes towards the ECJ during the period covered in this study, though the United Kingdom formally ended its EU membership at the end of 2020.Footnote ¹⁵ More importantly, the cases brought by Turkish and British activists before the ECtHR have reshaped the trade union rights jurisprudence of the ECtHR. The United Kingdom is the site of the first challenge at the ECtHR to successfully elevate trade union issues to a new level (Wilson v. the UK, 2002). Turkish unionists have taken the overwhelming majority of trade union cases before the ECtHR, including the landmark Demir and Baykara v. Turkey (2008) case, which marked the peak of labor rights jurisprudence at the ECtHR. Table 5 shows that Turkish and British activists brought the highest number of cases setting precedents at the ECtHR.

TABLE 4

Trade union rights cases before the ILO's CFA 1980–2020

Note: Total number includes all applications made by workers' organizations.

Source: Data compiled by the author from Normalex.

TABLE 5

Trade union rights cases before the ECtHR 1980–2020

Note: Total number includes all judgments and decisions. All decisions were declared inadmissible or were struck out of list. A-11 violation includes all judgments where there has been an Article 11 violation in the post-1990 period. Most important cases refer to the key cases and high importance cases in the post-1990 period. The Court assigns importance level to its own case law based on the significance of a given judgment or decision in developing the existing case law. Key cases are cases that set precedents since the inception of the new Court in 1998. High importance refers to cases that make a significant contribution to the development of the case law. The rest are medium and low importance cases.

Source: Data compiled by the author from HUDOC.

Turkey and the UK have some fundamental differences. The UK is a liberal democracy and an advanced liberal market economy. Turkey, on the other hand, is an emerging market economy with a spotty record of respect for basic rights and freedoms. Yet in both countries, neoliberal policies drove labor activists to look outside of the domestic structures to voice their demands in the post-1980s period. Due to the level of repression they faced domestically, the number and importance of cases from Turkey surpass trade union rights cases from all other European countries, including the United Kingdom. In my analysis in Turkey, I focus on the legal mobilization of public sector workers that established the trade union confederation KESK (Kamu Emekçileri Sendikası Konfederasyonu) in 1995. KESK unions brought 72 out of 93 cases from Turkey before the ECtHR and six out of 27 cases before the CFA. Overall, private sector unions from Turkey used international law much less frequently; altogether they brought 16 cases before the ECtHR and 13 cases before the CFA.Footnote ¹⁶

CHANGING LEGAL AND POLITICAL OPPORTUNITIES FOR ORGANIZED LABOR

In Turkey, the implementation of neoliberal policies took place within the context of the chilling effect of the 1980 military coup. Amidst the violence and chaos in 1982, the military passed a new constitution. Although the constitution brought severe restrictions on all rights and liberties, including trade union rights, it gave direct impact to ratified international laws at the domestic level. This opening unintentionally set the ground for public sector workers' unionization in later years. In the United Kingdom, as a result of the neoliberal policies initiated under Margaret Thatcher's leadership and continued thereafter, trade union density has halved since 1979 and collective bargaining coverage has shrunk even more drastically (OECD Stat., 2018).

During the 1990s, both the United Kingdom and Turkey moved towards Europeanization which created new legal opportunities for workers to claim their rights as human rights. Unlike the Conservatives' rather defiant attitude towards international law, under Blair's leadership, the United Kingdom strengthened its ties with Europe. In 1998, the government passed the Human Rights Act (HRA). While the ECtHR rulings were already legally binding in the United Kingdom, the HRA put in stronger measures for domestic institutions to comply with the European Convention articles and protocols. Under the HRA, judges are to interpret UK legislation in a way that protects the European Convention rights.

Similarly, the Turkish government took concrete steps towards Europeanization starting in the late 1980s. Turkey applied to become a member of the European Economic Community, the predecessor of the EU, in 1987. The EU accession period had a significant impact on Turkey's democratization process and prompted Turkey's commitment to numerous international human rights obligations. The same year, Turkey accepted the right of individual petition (Article 25) to the ECtHR. Then, in 1989, Turkey ratified the ESC, albeit with major reservations, including the right to organize (Article 5) and the right to collective bargaining (Article 6). In 1993, Turkey ratified ILO Convention 87 on the freedom of association and the right to organize.Footnote ¹⁷ Turkey's efforts finally came to fruition during the Helsinki Summit in 1999 when it was recognized as a candidate for full EU membership, with formal negotiations to begin in 2005. While the ECtHR is a completely different institution than the EU, Turkey's compliance with the ECtHR rulings became an important indicator of its human rights performance in the EU accession reports. Just as in the United Kingdom, these new international commitments, coupled with the constitutional empowerment of ratified international laws at the domestic level opened a new avenue for Turkish workers.

STRATEGIC LITIGATION: NAVIGATING AMONG MULTIPLE OPTIONS AT THE INTERNATIONAL LEVEL

With better de jure rights protections for workers, the ECJ (for British unions) and the ILO seemed more promising for unions than the ECtHR in the 1990s. This section analyzes the qualitative case study data to show why these institutions proved to be less attractive for unions and how the British and Turkish unions' legal mobilization efforts made the ECtHR into a labor court.

CONCLUSION

This research contributes to the growing field of studies on legal mobilization by theorizing the dynamics of how activists mobilize the law at the international level when there are multiple avenues available. While the extant research documents the role of activists and lawyers at a single international court, findings here suggest that activists initially probe various institutions and target the legal institution with the highest judicial authority and responsiveness to their claims. Unlike studies which suggest that legal stock or de jure rights will determine activists' decision to turn to international legal mobilization (Reference Alter and VargasAlter & Vargas, 2000; Reference ConantConant, 2006; Reference HilsonHilson, 2002), I do not find de jure rights to be a determining factor in shaping activists' choice. Given that the strategic objectives of activists pursuing international litigation are to leverage structural reforms and to set new international norms through precedents, the ability of their target institution to induce compliance from member states as well as its extensive authority are significant for activists. Aided by their lawyers, activists made the strategic determination that the judicial authority and responsiveness of the ECtHR—despite its weak protection of de jure rights and its unfavorable caselaw—presented an opportunity for this court to be made into a labor court. This research, therefore, builds upon and adds nuance to the argument that legal norms and institutions can be shaped by bottom-up mobilization.

One implication of probing several international institutions for social justice litigation is that, over time, we observe activists gravitating towards certain international adjudicative institutions over others. This research shows that the ECtHR and the ILO have become such target institutions for trade union rights, while other international institutions identified in Table 1 have become mostly obsolete for Turkish and British labor activists. Two exceptions may disrupt this trend. First, although measures such as overall compliance rates and references made to an international court's jurisprudence by other institutions provide objective assessments of judicial authority, exceptions based on country-specific features are possible. Some member states take certain international institutions more seriously than others. While the judicial authority of the ECtHR is higher than the ILO, it is possible, for example, that Spanish domestic courts take ILO rulings more seriously than other countries' courts and, hence, Spanish trade unions would prefer the ILO over the ECtHR.Footnote ³⁵

Second, the judicial authority and responsiveness of institutions can change based on political developments at the international level and ultimately affect activists' attitudes toward international litigation. The recent backlash against international organizations in Europe presents serious challenges against the judicial authority and the judicial responsiveness of these institutions. Both the ILO and the ECtHR have been under pressure within the past few years on trade union rights. The ECtHR's pro-union rulings emerged and developed in a political environment where the ECtHR was on the rise. Recent developments, however, indicate that the tide may be turning. The United Kingdom has been the most vocal critic of the ECtHR among the liberal democracies. New research shows that the court has been especially deferential against the United Kingdom, evidenced by the significant drop in its violation judgments since the mid-2000s (Reference Stiansen and VoetenStiansen & Voeten, 2020). The ILO has similarly been under fire. In 2012, the International Organization of Employers, which composes one leg of the tripartite supervisory body of the ILO, challenged the right to strike.Footnote ³⁶ Some observers viewed this move as a backlash against the ECtHR's rulings in which the Court referenced ILO Conventions in acknowledging basic trade union rights (Reference Bogg and EwingBogg & Ewing, 2014; Reference FudgeFudge, 2015).

This controversy came up in RMT v. UK (2014) where the UK government asked the Court to reconsider the right to strike, given the ongoing disagreement referencing the ILO Convention 87. Though the Court refuted the United Kingdom's argument and reaffirmed the right to strike under Article 11, it found no violation. According to Hendy, the decision “was not made on jurisprudential basis but purely an appeasement of the UK government's threat to leave the European Convention. So, one can have no faith now that a good case is going to win at the European Court. It will be dictated by politics.”Footnote ³⁷ Skepticism of the British lawyers stems from the UK's public outcries against a few ECtHR rulings and threats to withdraw from the human rights system altogether. These claims were particularly heightened in the run-up to the 2015 elections and have recently been revived in 2022 by the Tories under Boris Johnson's leadership. As backlashes against international institutions are on the rise not just in Europe but across the world, we can expect that activists' ability to use litigation strategy will be hampered. There is a growing number of studies investigating the effects of this backlash (Reference Alter, Helfer and MadsenAlter et al., 2016; Reference HillebrechtHillebrecht, 2021; Reference Madsen, Cebulak and WiebuschMadsen et al., 2018). Further research can demonstrate how activists respond to these challenges.

Finally, country and region specific differences call for further case studies to examine how activists navigate various challenges and choices at the international level. Europe is a rich region in terms of the availability of international institutions that provide remedies on a wide range of human rights issues. Different types of international legal remedies, including transnational legal remedies, such as filing cases at domestic courts abroad that have universal jurisdiction on human rights claims, may be available for activists in other parts of the world (Reference HolzmeyerHolzmeyer, 2009; Reference Kahraman, Kalyanpur and NewmanKahraman et al., 2020). Research from other regions and on other issue areas can shed light on how judicial authority and responsiveness factor into activists' decision-making processes.