Title: The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash
Abstract: I INTRODUCTION History is a key context for understanding the authority of the European Court of Human Rights (ECtHR or Court). (1) This half-century old international court (IC) has operated in contexts as different as the Cold War and decolonization, the emergence of the political and economic process of European integration, the post-Cold War period and, most recently, the geopolitical power shift that has prompted new transnational projects and alliances beyond Europe. The ECtHR's long period of operation and the different socioeconomic and geopolitical conditions under which it has evolved are also reflected in the institutional evolution of the Court from a traditional, nonpermanent IC that met occasionally in smaller premises to a permanent court proudly perched on the River III in Strasbourg, France. Moreover, the ECtHR has changed from being the product of a Cold War political compromise to a high-profile and influential IC with de facto supreme jurisdiction over European human rights. (2) The Court's transformation has contributed to an explosive growth in its caseload, most notably since 2000. In its first decade of operation, 1959 to 1969, the Court delivered ten judgments; in 2008, the ECtHR delivered its ten-thousandth judgment. (3) Its current docket includes some 70,000 pending applications and it delivered 891 judgments in 2014 alone. (4) Thus, when examined solely at the level of institutional and legal development, the ECtHR has undergone a wholesale metamorphosis--a development that its advocates and architects could hardly have anticipated. This article uses the theoretical framework laid out by Alter, Heifer, and Madsen to analyze the transformation of the authority of the ECtHR since its genesis. (5) Their framework lays out a set of different types of authority in fact: from narrow, to intermediate, to extensive authority. (6) The extent to which a court's constituencies recognize IC decisions as binding and take consequential steps to implement those decisions reflects the type of authority an IC wields. (7) Narrow authority concerns the immediate parties of a given case. (8) Intermediate authority concerns the larger group of actors similarly situated to the parties of a given case, such as potential litigants and government officials charged with implementing IC decisions. (9) Extensive authority concerns the broadest range of actors that engage with the IC--including NGOs, legal professionals, academics, and business actors. (10) An IC with extensive authority will typically be a key institution in developing law and politics within its area of legal authority. There is no teleology implied in this theory and different types of authority can coexist. Also, the authority of the Court can vary across member states. From its inception until the mid-to-late 1970s, the ECtHR struggled to maintain narrow legal authority. The Court's judgments influenced the litigants involved in these disputes but did not cast a broader normative shadow beyond the target state and the specific case. (11) The ECtHR's limited influence was an artifact of its very small caseload during its first fifteen years of operation and the reality that key member states of the European Convention on Human Rights (the Convention or ECHR)--notably France and the United Kingdom--were unwilling to accept the Court's jurisdiction out of fear that it would meddle in the decolonization struggles of the period. (12) The Court responded by deploying a relatively restrictive and often state-friendly interpretation of the Convention to facilitate states' acceptance of the system. This diplomatic approach to the Convention had, however, the negative consequence that civil society groups, typically litigation-oriented NGOs, found the Court to be of little use. (13) Both the Court's caseload and civil society engagement with the Court changed throughout the late 1980s and the 1990s when the ECtHR gained intermediate and extensive authority. …
Publication Year: 2016
Publication Date: 2016-01-01
Language: en
Type: article
Access and Citation
Cited By Count: 26
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot