The Failure to Destroy the Authority of the European Court of Human Rights

What is it about?

From 2010 to 2018, some Member States of the Council of Europe engaged in an unprecedented attempt to undermine the authority of the European Court of Human Rights (ECtHR). The United Kingdom and Denmark, supported by critics in academia, led efforts to weaken the ECtHR by giving states greater control over the Court and broader leeway in interpreting rights identified in the European Convention on Human Rights. In a series of High Level Conferences, a large majority of Member States repudiated these efforts, leaving the basics of the Court’s powers intact. Some observers have argued that, reacting to initiatives designed to subordinate it, the Court “walked-back” (that is, retreated) on rights or from its basic jurisprudential orientations. In fact, the Court did the opposite: it reaffirmed its authority and independence. Instead, the Court has sought to address its most pressing challenge – its “dilemma of effectiveness” – through inter-judicial dialogue and complex forms of proceduralisation.

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Photo by Rene Böhmer on Unsplash

Photo by Rene Böhmer on Unsplash

Why is it important?

Some observers have argued that the backlash expressed at the High Level Conferences by certain member states induced the European Court to retreat from its mission of expanding rights protections. Our analysis shows, instead, that the Conferences produced a full-bodied vindication of the Court’s approach to human rights. Recent shifts in the doctrine and practice of the Court have aimed not at placating critical member states but at dealing with the Court’s massive case overload.