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In this chapter, I lay out a theory cataloguing the conditions under which international courts may be expected to issue audacious rulings. This theoretical framework relies on previous literature and insights gathered from interviews with experts in and around the Court. The necessary condition for audacious courts is a wide discretionary space within which they may act without fearing repercussions from states. Yet, such a wide discretionary space is not always given; when it is given, states might still attempt to influence courts through direct or indirect means. Such means include closing down courts’ discretionary space and widespread negative feedback, as well as related threats. International courts, in turn, are compelled to realign their priorities to react to or pre-empt such measures. This is a form of trade-off whereby courts adjust their behaviour to ensure continued access to resources and to preserve their reputation and public image. The chapter also introduces additional factors that increase the likelihood of audacious rulings (i.e., proposed new understandings’ congruence with changing societal needs, legal developments external to the regime, and civil society campaigns).
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