The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash

Law and Contemporary Problems, Mar 2016

Mikael Rask Madsen

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The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash

THE CHALLENGING AUTHORITY OF THE EUROPEAN COURT OF HUMAN RIGHTS: FROM COLD WAR LEGAL DIPLOMACY TO THE BRIGHTON DECLARATION AND BACKLASH MIKAEL RASK MADSEN 0 1 0 Copyright © 2016 by Mikael Rask Madsen. This article is also available at 1 Professor of Law & Director of iCourts, Faculty of Law, University of Copenhagen. A special thanks to Ioannis Damastianos Panagis for providing fresh and unbiased data on the ECtHR and to Karen Alter, Shai Dothan, Laurence Helfer, and Alexandra Huneeus for their excellent comments on this article. This research is funded by Danish National Research Foundation Grant No. DNRF105 and conducted under the auspices of iCourts, the Danish National Research Foundation's Centre of Excellence for International Courts. 1. See generally ED BATES, THE EVOLUTION OF THE EUROPEAN CONVENTION ON HUMAN I - 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 tenthousandth 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, Helfer, 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 32 LAW & SOC. INQUIRY 137 (2007) (discussing the process that shifted the Court to its current position as the supreme European human rights court). 3. EUROPEAN COURT OF HUMAN RIGHTS OVERVIEW 1959–2014, 4 (2015), http://www.echr .coe.int/Documents/Overview_19592014_ENG.pdf. 4. This number is current as of December 31, 2014. See EUROPEAN COURT OF HUMAN RIGHTS, ANALYSIS OF STATISTICS 6 (2014), http://www.echr.coe.int/Documents/Stats_analysis_2014_ENG.pdf. 5. See generally Karen J. Alter, Laurence R. Helfer & Mikael Rask Madsen, How Context Shapes the Authority of International Courts, 79 LAW & CONTEMP. PROBS., no. 1, 2016, at 9–12. 6. In their framework, they also include two additional types of authority: no authority and popular authority. These two types are not considered in this analysis. Id. at 9, 11–12. 7. Id. at 10. 8. Id. 9. Id. 10. Id. at 10–11. 11. Id. at 16, tbl. 1. 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.14 During this period, the Court, with a steady and growing docket, became the de facto Supreme Court of human rights in Europe.15 Even though there were negative reactions to the Court’s expanding jurisprudence and power—first in the United Kingdom, and then in France16—member states generally accepted ECtHR judgments, altho (...truncated)


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Mikael Rask Madsen. The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash, Law and Contemporary Problems, 2016, Volume 79, Issue 1,