Urfan Khaliq
Populism in Europe, as is the case with all parts of the globe, is nothing new. The ebb and flow of political beliefs and fortunes are cyclical, and it was only a matter of time before populism, in its various forms, reared its head again and entered the mainstream.[1]
There are various European right-wing parties and equally some with a radical left-wing ideology that can be described as populist. Populist movements holding, sharing, or influencing the agendas of domestic regimes in power are no longer aberrations among European states.[2] Populism can be seen as a movement that puts the partial interests of the mobilized above the interests of others, while claiming to represent the entirety of society. It is, as Jan-Werner Müller explains, “a way of perceiving the political world that sets a morally pure and fully unified people against elites who are deemed corrupt or in some other way morally inferior.”[3] Some European populist parties have a very strong aversion to immigrants, in particular Muslims, and this is especially the case in northern Europe (Denmark, Sweden, and Germany, for example), and central, eastern, and southern Europe (Poland, Hungary, and Serbia, for example). This aversion stems ostensibly from a stated desire to preserve national identity and culture. Human rights courts—in particular, international ones—are thus presented as an impediment to the fulfillment of the populist manifesto and the right of the state and its populace to make their own decisions. The Council of Europe (CoE) and above all its European Court of Human Rights (ECtHR) is now caught up in this vortex of forces.
The Council of Europe was established to enforce the relationship between democracy, the rule of law, and human rights in Europe, three pillars that are specified in its statute.[4] The Council’s great contribution to human rights protection has been the European Convention on Human Rights (ECHR) in 1951 and the subsequent establishment of the European Court of Human Rights in 1953.[5] Importantly in this context, the Court’s function has been to deal with human rights; it is not best suited to upholding democracy, or to a lesser extent the rule of law. The rise of populism in Europe has led to the erosion of confidence in politics, government, courts, and the mainstream media. Some citizens certainly feel that democracy, the rule of law, and human rights have not worked for them and are actually working against them.
Where the European experience is distinct from other regions of the globe, however, is that in the past when populism and its manifestations came to the fore in Europe, the repercussions were felt globally. The “World Wars” of the twentieth century were of course European conflicts in origin, but tensions between European states had consequences in many parts of the globe, owing to the expansive colonial empires these states possessed. The suffering in World War II was a primary impetus for the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. It is worth stressing, however, that no matter how “globally diverse” the nine key drafters of that Declaration were in terms of the states they represented, the dominance of European cultural heritage among them is clear.[6] The adoption of the 1948 Declaration has been the basis for the legally oriented global and regional human rights edifice that has been steadily constructed ever since, and those cultural and other assumptions have continued to hold sway.
Broadly speaking, European states since 1948, notwithstanding their actual domestic legislation and colonial practices, have rhetorically been fervent supporters of the adoption of global human rights treaties. This was the case throughout the Cold War and subsequently.[7] How that dynamic played out within Europe, in terms of regional developments, was, of course, determined by politics. European states that were under the yoke of the Soviet Union or a part of its empire were not party to any legally binding human rights obligations and arrangements solely of their own.[8] They preferred to support global treaties addressing human rights issues adopted under the auspices of the United Nations (UN). By contrast, the statute of the Council of Europe, which was established in 1949, had by the end of 1950 been ratified by fourteen states.[9]
The end of the Cold War led to a very significant expansion of the membership of the Council of Europe, which effectively doubled in the 1990s.[10] In this trajectory, the resurgence of populism and the adoption of populist policies in a number of member states—policies that selectively support some human rights but seek to undermine others—are important for a number of reasons. As noted above, since the adoption of the UDHR, European states—more specifically Council of Europe members—have broadly been vocal supporters of human rights treaties at the global level. Member states that are skeptical, if not outright hostile, in global and regional forums relating to the protection of human rights have proved a more novel proposition. If we further consider that legally binding human rights, despite protestations about their universality, essentially reflect a European cultural philosophy, then European states undermining that philosophical basis through their words and actions present more of a threat to the theoretical and philosophical basis of all global human rights instruments than if this undermining occurred in other states.
The current challenges to the consensus that undergirded the European human rights system should, however, be placed in a broader historical context that reinforces two central tenets of this chapter.
First, the protection of human rights must be a long-term strategy infused with pragmatism in the interpretation and application of human rights norms and their implications for collective policies. The adoption and expansion of human rights norms among member states of the Council of Europe occurred because this was not solely an ideological project but equally one of adaptation, mutation, reflection, and evolution. Populism, no matter how pressing a challenge, is simply one of many challenges.[11] The European Court in this context is seen as part of a corrupt and morally inferior elite, who further are “foreign” and thus represent the antithesis of “native” values. For example, Viktor Orbán, president of Hungary and a notorious populist, has attacked the European Court of Human Rights, saying that it should be urgently reformed because its judgments were a “threat to the security of Europeans” and an “invitation for migrants,” whom he referred to as a “Trojan horse of terrorism.”[12] While some member state governments are, as noted, openly hostile to the European Court, others are increasingly skeptical and very few are fully supportive of the Court and Convention system. In recent years, dealing with more assertive, skeptical, hostile, and authoritarian regimes has become unavoidable for the Court.[13] Tensions around its interpretation of the Convention are nothing new, but they have taken on a new urgency with the rise of populist governments and related movements, heightening the challenges to the checks and balances that are key to the domestic protection of human rights. These themes are developed later in the chapter.
The second main tenet of this chapter is that the European Union (EU) may assist in limiting the impact of some of the most pressing challenges to the Council of Europe’s human rights system, in particular from populist regimes.
The (Relative) Success of the ECHR over Time
The view that the European Court of Human Rights is the most successful international human rights court has persisted, despite its failings. In 2008, Michael O’Boyle, then deputy registrar of the European Court and coauthor of the leading English-language treatise on the Court and its jurisprudence, best expressed this perception, noting that there “seems to be unanimous agreement in Europe today that the European Convention on Human Rights . . . is one of the major developments in European legal history and the crowning achievement of the Council of Europe.”[14] This is remarkable given that the Court, “is overwhelmed with cases and takes so long to produce its judgments and decisions in deserving cases.”[15]
The assessment of the Court as so successful has always been relative to the performance of other regional human rights courts in the Americas and Africa. (See chapter 11 by Santiago Canton and Angelita Baeyens, and chapter 12 by Solomon Dersso for discussion of these respective regional human rights systems and the historical and current challenges they have faced.) But on what basis was it the most successful? The European Court has undeniably been a leader in terms of detailed jurisprudence despite the slow pace of judgments in its early years. Can we measure success by compliance? Possibly, but even so, the context was and is important. The European Court did have a “golden era” in the 1970s and 1980s, and arguably in the early 1990s, but by then commentators often noted that it was becoming a “victim of its own success.”[16] It was always suggested that the Court had too many cases to deal with because it was so good at what it did—not because structural problems were endemic in some states and there were egregious and systematic breaches of the Convention in others. Any problems were portrayed as being related primarily to delays within the European Commission on Human Rights and the Court itself, and these became the impetus for Protocol 11, which amended the Convention’s institutional machinery. Entering into force in 1998, Protocol 11 revised the European Convention system, abolishing the Commission and making acceptance of the Court’s jurisdiction and thus the right to individual petition compulsory for all contracting states. Protocol 11 was an important and necessary streamlining of the process for determining a complaint but was never going to be enough.
With the exception of Turkey, which ratified the Council of Europe’s Statute in 1950—and perhaps to a lesser extent Greece, which withdrew before it was expelled in 1969, when it was under military rule, but returned in 1974—the membership of the Council of Europe during the Cold War consisted only of a small group of West European, capitalist states. Throughout the 1950s and 1960s membership of the Council of Europe grew, but slowly, and only extended to like-minded states.[17] Notably, at its founding and until well into the 1960s, member states Belgium, France, the Netherlands, and the United Kingdom still had colonial empires in which they perpetrated gross and systematic violations of human rights, under regimes that perpetuated egregious economic, social, and racial inequalities. The contradictions between those member states having empires and then their relationships with the European Court of Human Rights were elided by Article 1 of the Convention, which (in)famously limits the extraterritorial jurisdiction of the Convention and thus any member state’s responsibility outside the physical territory of that state to exceptional circumstances.[18]
At the end of the Cold War, as the Council of Europe’s membership expanded rapidly, it encompassed a number of new member states that were not well-established democracies. From the outset, protecting human rights at the regional European level was a means to an end, with member states of the Council of Europe remaining nonauthoritarian and democratic. The “common ground” among the member states in the context of the Cold War was defined by considering who and what those states were united against, namely communism and fascism.[19] With expansion, the broader political context in which the Court and Convention functioned changed fundamentally. There were not only the historical abuses within the territories of those new member states, but also their lack of suitable domestic mechanisms and processes as well as the absence of a broader culture that respected individual rights.
By the end of the Cold War, the European Convention system had been evolving—institutionally and jurisprudentially—for the best part of forty years. Prospective member states in the early 1990s were presented with a fully-fledged, mature system, with its own established approach, history, and way of doing things, into which the new members had no input or influence and to which they were compelled to adapt. This was in notable contrast to the UN human rights treaties to which those same primarily central, eastern, and southern European states had from the outset been keen signatories, contributing significantly to their drafting, and to the establishment, and functioning of the treaty bodies.
This is an often-overlooked point. The Council of Europe is a regional human rights system, which, like all such systems, should be finely attuned to the specific vagaries and cultures of that particular region in the context of human rights. Yet, eventually half of all member states from that same geographical region joined the Council of Europe many years after its establishment, not as equals but as the vanquished, and as outsiders still finding their feet in a recalibrated geopolitical environment. Membership of the Council of Europe was a clear goal for many central, eastern, and southern European states as an indicator of a break from their past. Furthermore, membership of the European Union necessitated accession to the European Convention and respect for the rule of law and democracy.[20] Equally, the Council of Europe did not have the means to prevent any backsliding to authoritarianism in these or other member states. The earlier episode with Greek military rule had already highlighted that expulsion from or suspension of membership of an international organization for systematic human rights violations was not an effective method for upholding respect for human rights and the rule of law. This is a point to which the discussion returns later in the chapter.
The Pushback against the European Court
The European Court of Human Rights and its methods of interpreting the Convention have long been strongly contested, but that contestation has been overlooked for far too long. In the seminal case of Marckx v. Belgium, decided in 1979, these tensions were laid bare. Sir Gerald Fitzmaurice, a British doyen of international law, noted in his Dissenting Opinion that the Convention was interpreted by the Court in a manner that was never intended by those who had drafted it.[21] This is a classic issue—original intention or contemporary context—and familiar to scholars of constitutional systems around the world. What Sir Gerald was identifying is what has subsequently become known as the pro homine methodology of interpretation of human rights treaties.[22] This requires that human rights treaties are interpreted in the way that is most favorable to the individual and the protection of human dignity.[23] That can be far removed from what contracting parties actually thought they agreed to.[24] It is related to the European Court’s long-established view of the Convention as a “living instrument” to be interpreted in the light of how society has progressed.[25] This issue becomes particularly important with the rise of populist sentiments among Council of Europe states.
While methodologically complex and not always predictable in its approach in practice, the Court has always argued that the “living instrument” approach has informed the evolution of substantive rights, and that these rights must be seen in the light of the approaches taken by the majority of member states. Thus, in interpreting the Convention, the Court can consider the approaches taken by other member states in determining whether a particular member state is in compliance with its obligations or not. This is the so-called European consensus.[26] If a broadly similar approach to a matter is adopted by some or many other Council of Europe states, then that may require the respondent state in a particular case to come into line with that approach. If there is no such broad identifiable approach, then the respondent state has more discretion in its own approach. This “scope of discretion” is another technique, referred to in the Court’s jurisprudence as the “margin of appreciation.” The margin of appreciation essentially recognizes that states’ parties are sovereign and thus have discretion as to how they protect a right. The Court’s role is to identify the minimum threshold, and if the respondent state’s approach is below that threshold, that will equate to a violation of the right in question. But that minimum threshold will evolve upward over time if society becomes more progressive.[27] Between these various techniques, the Court has arguably overreached its mandate.[28]
Populist regimes may play a disproportionate role in the context of the “margin of appreciation” and “European consensus” in that they are less likely to approach certain rights in a progressive way. Using the “living instrument” approach, the European Court has read rights and obligations into the Convention that simply could not have been envisaged at the time of its drafting. It has done so on the basis of how the laws have progressed in contracting states. It is important to stress that the Court is reactive, as the evolution must have taken place in some states for the Court to be able to justify its approach toward recalcitrant states that are not keeping up with the trend and approach of others. If some or most contracting states have taken a certain approach to a particular matter, then those that are out of line with this approach will have less discretion (margin of appreciation) and may be obliged to comply with the more “progressive” approach. This was precisely the approach used by the Court in Hirst v. United Kingdom, where the Court found, to the U.K. government’s great irritation, that a blanket ban prohibiting all prisoners from voting did not align with the approach taken by most other European states, which allowed many prisoners to vote. Thus, the United Kingdom had a narrow margin of appreciation and was consequently in breach of its Convention obligations.[29] Successive British Conservative governments have refused to comply with the European Court’s judgment. In sum, this means that the Court has less scope to be progressive in certain areas, in particular where some regimes—namely, populist ones—are more socially and culturally conservative. That reticence may prevent a similar approach developing among all Council of Europe states and consequently affording greater discretion among member states on particular matters.
Since the turn of the millennium, there has also been a thorough ongoing review of the activities and functions of the Convention system, and it has been more closely scrutinized than in earlier times.[30] Denmark, for example, is a founding member of the Council of Europe and traditionally portrayed itself as a strong supporter of the European Convention system and human rights instruments globally. Yet in recent years, domestic politics, in particular relating to immigration, and indeed some decisions of the Danish Supreme Court, have seen Danish governments at loggerheads with the Convention system and sometimes stridently critical of it.[31] The Danish chairmanship of the Council of Europe in 2017 was thus an opportunity to act on these frustrations. This manifested itself in an agenda that emphasized a strong desire to reform the Court and Convention system, although there was little tangible change in practice. Some commentators have talked of “principled resistance” to the Court and its jurisprudence—on the basis that the Court has not acted legitimately in certain instances.[32] But the Convention system has wider problems than those articulated above.[33]
The Court now has thousands of applications before it relating to the consequences of Russia’s invasion of Crimea in 2014. This is in addition to the many thousands of petitions already outstanding and stemming from other situations in Russia and a handful of other states.[34] Interstate complaints are also now being used in different ways than previously.[35] The Court and its future legitimacy and viability are continually being challenged. The Brighton Declaration of April 2012, adopted at the initiative of the United Kingdom’s chairmanship of the Committee of Ministers (of the Council of Europe), has had the greatest long-term effect, in its emphasis on the importance of subsidiarity.[36] Subsidiarity in this context is about states parties having the discretion they wish for and thus a recognition of their sovereignty as to how they protect rights. Protocol 15 to the Convention came into force in August 2021.[37] Its Article 1 seeks to rebalance the relationship between the states party to the Convention and the Court by reaffirming that states have “the primary responsibility to secure the rights and freedoms defined . . . and that in doing so they enjoy a margin of appreciation, [namely, discretion] subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.”[38] This is a reassertion of sovereignty, under the guise of subsidiarity. The call for a return of sovereignty—whatever it actually means—is, of course, common to many populist regimes.
As is obvious from the above, challenges to the Court by the member states have been apparent for quite some years. Protocol 15, crafted by the member states, reminds the Court that they are the masters of the Convention, and the Court is there to fulfill the role the member states have assigned to it. Yet, it did not take the Protocol for the Court to turn to conservatism when it came to the “other”—the target of many a populist’s opprobrium. In a series of (in)famous cases, the Court’s regressive attitudes toward the autonomy and rights of Muslim women who choose to wear the hijab are laid bare.[39] In these cases, in particular Leyla Şahin and S.A.S. v. France, the Court upheld national bans on the voluntary wearing of the hijab, as it deemed such dress to be compelled by Islam and pressure from (Muslim) men, and the antithesis of European secular values. In the equally infamous Lautsi judgment, however, the Court’s sensitivities and awareness of certain limits are more than apparent.[40] The Lautsi case raised an objection to the mandatory presence of a crucifix in Italian classrooms; Italy is formally a secular state. The notion that a mandatory crucifix in a classroom is a “passive symbol,” which “cannot be deemed to have an influence on pupils comparable to that of didactic speech or participation in religious activities” lacks credibility, but the Court’s awareness of the vituperative reaction from numerous states meant it had to find a way to ensure crucifixes were permissible in “secular” Italy. The judgments in Leyla Şahin, SAS, and Lautsi highlight in their own ways that while the Court pushes the boundaries of the rights in the Convention, there are limits to what the member states will tolerate. The Court knows not to test those limits. All three cases should have been decided in favor of the applicants if the Court was to uphold the individual rights it had long espoused and to be consistent with its prior jurisprudence. But in each case the Court found for the state—knowing that siding with the petitioners would have been unacceptable to Turkey, France, and Italy, respectively, and that those states simply would not have accepted its judgments.
Pushing Back against Populist Regimes?
While populist regimes pose one of several challenges to the European Court, it has pushed back against some of their practices and policies. Article 18 of the Convention, which had lain dormant, has sprung to life in more recent years. It stipulates that “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” The Court’s leading judgment on Article 18 was Merabishvili v. Georgia, which shed light on how it views the application of the article.[41] The decision, however, rings some alarm bells in terms of holding populist regimes to account. In this case, Irakli Merabishvili, a former Georgian prime minister, was accused of a number of crimes and argued that his pretrial detention had the purpose of ensuring that his political presence and standing were curtailed. In 2014, the applicant was found guilty by a Georgian court of the majority of charges against him. This outcome was challenged before the European Court of Human Rights, which drew distinctions between the ulterior purpose of a restriction from an assessment of measures based upon a plurality of purposes. Here the Court was seeking to examine all the possible motives for imposing restrictions and then to assess the predominant purpose of the measures being contested. This would be done by evaluating all of the circumstances as they evolve over time. If the predominant purpose is deemed illegitimate, then Article 18 is violated.[42] The Court also noted that “the nature and degree of reprehensibility of the alleged ulterior purpose” and the fact that “the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law are key.”[43] In terms of temporality and circumstances, assuming the restrictions stay in place (even if they change in scope), the reasons behind the restrictions may change over time provided their primary purpose remains legitimate.[44]
The obvious associated issues are the burden of proof, and how the predominant reason should be identified and on what basis. The Court, giving itself maximum flexibility and states parties limited clarity, held that it can rely on “information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts;” this could be corroborated and reinforced by third-party reports and judicial decisions, and inferences could be properly drawn from this information.[45] However, the predominant purpose test lacks objective criteria. Equally problematic is the notion that the Court’s approach considers illegitimate purposes tolerable as long as they do not outweigh the predominant purpose, which must at all times be legitimate.
The recourse to Article 18 in Merabishvili v. Georgia is critical as the provision was initially included in the Convention to prevent states from curtailing freedoms and regressing to totalitarianism, thereby limiting the democratic nature of the state. Subsequently, the Court has considered Article 18 in Navalnyy v. Russia. Here matters directly related to the conduct of another populist and repressive regime were again under scrutiny. In this case the Court found it had
How the Court will determine “ulterior purpose” in future petitions remains to be seen. But the reference to pluralism and tolerance as hallmarks of a democratic society cuts both ways, as the hijab cases, for example, have illustrated. What is different in the balance relating to Article 18 and democratic governance is that mainstream opposition parties are more likely to be protected as they are indicative of tolerance. Equally, more unpopular views, especially those associated with the “other,” are likely to be marginalized and unprotected by Article 18, even though they are part of the plurality of views indicative of a tolerant society.
Dealing with the Challenges from Within
Populist movements that are influential at the domestic level, as noted above, are not aberrations among Council of Europe members. Some states are showing all the hallmarks of regressing toward totalitarianism. Then there are others that have never been liberal democracies but have still been admitted to the Council of Europe. It was widely acknowledged that Russia did not meet the criteria for membership, yet it was still admitted in 1996.[47] At the end of the Cold War, the successor state to the Soviet Union was ostensibly subscribing to democracy, the rule of law, and human rights under a capitalist model. The opportunity to engage with it as a member of the Council of Europe and seeing it as a “work in progress” was clearly preferable to keeping it at arm’s length. Belarus, a repressive authoritarian regime, which is not a member of the Council of Europe, is a case in point here. The Council of Europe has minimal influence in relations with this state. If once there had been the Helsinki effect, through engagement with what became the Organisation for Security and Co-operation in Europe (OSCE), it was plausible that membership of the Council of Europe could equally lead to positive developments in terms of the protection of rights and democracy in Russia. Russia clearly has not developed in terms of liberal democracy, the rule of law, or human rights protection in the hoped-for way.[48] It remains within the fold, however, notwithstanding various measures such as sanctions and suspensions of voting rights in the Parliamentary Assembly.[49]
Equally, one could say that Turkey has not developed as was hoped. It has been a member state since 1950 and has engaged in egregious breaches of the Convention relating to its Kurdish minority, as well as the invasion of Cyprus in 1974. The approach toward Turkey (certainly between 1950 and 1988) was informed by Cold War politics; the membership of central, eastern, and southern European states was at that time not even a remote possibility.
Russia is, however, different from all other Council of Europe members. It is enormous in terms of territory, has by far the largest population, is militarily formidable, and has immense natural resources. It was inconceivable that it could become a member of the Council of Europe (which had, of course, originally been a club for a small number of Western liberal capitalist democracies) without fundamentally destabilizing that body in some way and changing its culture and way of doing things.[50] But Russia is now a key actor in the Council of Europe. Its influence and importance are obvious and the choices made to include not just a nondemocratic state but one that has actively attempted to subvert democracy without and outside its borders need to be managed. Significantly, it has always been clear that the European Court, as a retrospective mechanism, cannot compel change in states. It can only fine-tune existing liberal democracies; it has never been able to establish and then sustain them—especially in such a large, powerful, and recalcitrant state as Russia.
With regard to those Council of Europe states that are sliding toward repression, there is greater hope that the European system of human rights can serve as a brake, but what exactly the Court can do is not clear. The careful dismantling of the rule of law in Poland or Hungary suggests that there are no straightforward solutions.[51] In Poland the matter primarily revolves around the independence of the judiciary. A number of judgments have been handed down.[52] In May 2021, for example, a judgment of the European Court considered the unlawful election of a judge to the Polish Constitutional Tribunal to violate Article 6 of the Convention.[53] The appointment of members of the judiciary and the “sovereignty” of governments to appoint judges is a well-known lightning rod for populists. The European Union is also taking a lead here, given that both Poland and Hungary are EU member states. The EU’s mechanisms allow it to use its financial and political levers to ensure that Poland and Hungary uphold the values articulated in Article 2 of the Treaty on European Union (TEU), which refers to respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights.[54]
As concepts, neither democracy nor the rule of law is clearly articulated in international law, nor do they exist as rights per se.[55] Moreover they are distinct from human rights, although related. The EU references democracy and the rule of law in its international relations with third states, and the hazy, indeterminate, and subjective nature of what is meant is more than apparent in its practice.[56] Quite how it will define those terms internally when dealing with a member state necessitates entry into new terrain.[57] Article 2 TEU (all EU states must uphold values such as democracy, human rights, and the rule of law) was inserted precisely because it was foreseen that there might be (back)sliding toward totalitarianism and repression among EU member states (presumably only newer ones). Article 7 TEU outlines the procedure to be followed where it is considered Article 2 TEU has been violated. In December 2017, the European Commission initiated proceedings against Poland, and in September 2018 the European Parliament initiated proceedings against Hungary. At the time of writing, it is still difficult to determine where the Article 7 TEU procedure may be.[58] Much like Article 18 ECHR, Article 7 TEU was designed to provide a bulwark against authoritarianism and must be used in a consistent and coherent manner to be credible.
Conclusions and Recommendations
Many of the problems confronting the European Court and Convention are long-standing, masked for over forty years by the geopolitical context—namely the Cold War. Since the turn of the millennium, their pressing nature has become much more acute and visible. Any established international organization that doubles its membership over a short space of time would face serious issues. One that doubles to accommodate vastly different perspectives, histories, trajectories, and cultures was never going to find it easy. This, compounded by the proliferation of potential applicants, meant the system was never going to cope when there was already a significant problem with delays. Moreover, this crisis in the functioning and efficacy of the European Court, coinciding with already strongly expressed concerns around judicial overreach and legitimacy, was an unhealthy state of affairs. These crises have now coincided with routine and widespread questioning of the legitimacy of all international human rights courts and tribunals. Populists have fed off this energy and narrative. The Brexit slogan in the United Kingdom of “taking back control” was in part aimed, erroneously, at the European Court of Human Rights (and human rights more generally), as well as at the European Union.
But the Court and Convention systems now need to look back at their own past experiences. The Convention system was always informed by a long game, as indicated by the slow building of confidence over time through the 1960s and 1970s, in particular. What is striking is that there is no longer a robust political consensus across Europe around the value and necessity of regional human rights protection for all. This lack of consensus and a perceived lack of legitimacy have had a pernicious effect and may cause the longest-term damage. The hostility toward the Court on the part of some states has not led to stronger support from others; rather, some of the other states have joined the ranks of the skeptical and cynical, if not downright hostile. The hostility to the Court should serve as the canary in the coal mine, warning of the creeping repression in some member states. It is not that populist regimes per se are hostile to international courts and tribunals that protect human rights; rather, it is the narrowness of their views as to which human rights should be protected, for whom, and what the limits of pluralism should be.
Populism and the selective approach to human rights is, of course, not confined to Europe. Owing to the dominance of “European cultural thinking” in the global human rights edifice, a European retreat will be damaging to that international edifice as well as at the regional level. While this may seem alarmist, the risk should not be underestimated. It must be stressed, however, that human rights courts cannot address many of the issues raised by populist regimes. If one considers some of the populist Klaxon calls in European states around immigrants “taking our jobs and houses” or “diluting the Christian nature of Europe,” then what protective role can a human rights court actually play? Key to limiting the pernicious policies of many populist regimes is ensuring that the rule of law is respected and that a vibrant, diverse, pluralist society is maintained. The protection of human rights, democracy, and the rule of law is what will prevent the (back)slide to authoritarianism. That will allow the time—however long it takes—for the challenges presented by populism to pass. The European Court can protect the rule of law in a narrow, technical sense only in terms of the independence of the judiciary. In terms of protecting democracy, it is effectively marginal, although a number of Convention rights do lend themselves to ensuring pluralistic societies in certain contexts. These are shortcomings about which little can be done by the Convention system. The Council of Europe as a whole, however, working with the European Union, may be able to buttress the rule of law and democracy across its member states, and such cooperation and coordination may, therefore, provide a fruitful way forward.
The European Union has a variable record on human rights, democracy, and promotion of the rule of law, but there is a synergy here with the Council of Europe in terms of tackling populism. A clear distinction must be drawn between the two bodies, however. The EU’s powers and influence in dealing with its twenty-seven member states are vastly different from its capacity to influence those twenty-one Council of Europe states that are not also EU members. The EU has the economic, political, and financial clout to compel certain of its twenty-seven members to roll back some of their more flagrant measures such as undermining or inhibiting the rule of law. The Article 7 TEU process was mentioned above, although the strength of the EU’s appetite for invoking it and following it up with effective measures remains to be seen. With regard to the Council’s non-EU member states, the Union’s influence in compelling reform is vastly reduced. Persuasion is key, but that requires engagement in good faith on both sides and should certainly not be taken for granted. Economic and other sanctions are part of the EU’s external armory but it is not known for taking effective and meaningful measures against neighboring states. Less confrontational measures may achieve much more. It has long sought to promote, protect, and fund civil society to safeguard pluralism and vibrant democracies. There is significant scope for the European Union to complement more broadly the work of the Council of Europe, which also promotes democracy and the rule of law, so as to protect and fund the activities of relevant civil society groups. This cooperation will not be a panacea, but it will ensure the viability of pluralism in societies, which is essential for the respect of human rights. We are back to the long game, this time though the players are more diverse and complex.
Notes
1. The literature on populism is now voluminous, but for various definitions and approaches, see the opening chapters of The Oxford Handbook of Populism, edited by Cristóbal Kaltwasser, Paul Taggart, and Paulina Espejo (Oxford University Press, 2019); Jan-Werner Müller, What Is Populism? (New York: Penguin, 2017); and Roger Eatwell and Matthew Goodwin, National Populism: The Revolt against Liberal Democracy (New Orleans: Pelican, 2018). See also chapter 6 by Gerald Neuman in this volume.
2. Such movements can arguably be seen to be strongly influential in domestic politics—at the time of writing—in, among others, the Czech Republic, France, Greece, Hungary, Italy, the Netherlands, Poland, Russia, Serbia, Turkey, and the United Kingdom.
3. Müller, What Is Populism?, pp.19–20.
4. ETS No. 1, Statute of the Council of Europe, entry into force August 3, 1949.
5. The European Convention on Human Rights was adopted under the auspices of the Council of Europe and the Convention established the Court. ETS No. 5, European Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, entry into force September 3, 1953.
6. Eleanor Roosevelt (United States), William Hodgson (Australia), René Cassin (France), Hernan Santa Cruz (Chile), Charles Dukes (United Kingdom), John Humphreys (Canada), and Alexandre Bogomolov (USSR) can all be considered to be of European cultural heritage. The other members were Dr. Peng-chun Chang (China) and Dr. Charles Malik (Lebanon).
7. Reasoning and perspectives differed, of course, but this is in reference to the nine “core” UN human rights treaties. In each of these, the individualistic approach to human rights is clear.
8. Ukraine (Ukrainian SSR) and Belarus (Byelorussian SSR) were founder member states of the UN and alongside the USSR were among those that abstained from signing the Universal Declaration. The three Soviet states and their allies were strong supporters of universal human rights treaties during the Cold War and keen activists with regard to the seven core UN human rights treaties adopted to the end of 1990.
9. See note 4 above. Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden, and the United Kingdom all signed and ratified in 1949. Greece, the Federal Republic of Germany, Iceland, and Turkey ratified in 1950.
10. The notable exceptions are Portugal and Spain, which joined in 1976 and 1977, respectively, and Finland, which did not join until 1989. Eighteen states joined in the 1990s and a further six after the turn of the millennium. There are currently forty-seven member states.
11. See European Populism and Human Rights, edited by Jure Vidmar (Leiden: Brill/Nijhoff, 2020).
12. Sarantis Michalopolous, “Orban Attacks the European Court of Human Rights,” Euractiv, March 30, 2017, www.euractiv.com/section/global-europe/news/orban-attacks-the-european-court-of-human-rights-at-epp-congress/.
13. It is widely considered in Strasbourg circles that many advocates on behalf of Russia before the Court are openly contemptuous of it.
14. Michael O’Boyle, “On Reforming the Operation of the European Court of Human Rights,” European Human Rights Law Review 1, 1 (2008), citing Richard S. Kay, “The European Convention on Human Rights and the Control of Private Law,” European Human Rights Law Review 5 (2006). Also see Laurence R. Helfer, “Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Human Rights Regime,” European Journal of International Law 19, 1 (2008), https://doi.org/10.1093/ejil/chn004, stating that the European Court is the “world’s most effective international human rights tribunal.”
15. O’Boyle, “On Reforming the Operation of the European Court of Human Rights.”
16. For one example from many, see Lynne Turnbull, “A Victim of Its Own Success: The Reform of the European Court of Human Rights,” European Public Law 1, 2 (1995), p. 215.
17. Notably, Austria in 1956, Cyprus in 1961, Switzerland in 1963, and Malta in 1965.
18. The literature on the rather convoluted jurisprudence relating to extraterritoriality is enormous, but the most useful historical discussions behind the relevant provisions are Alfred W. B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2001); and Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation (Oxford University Press, 2010).
19. See Esra Demir-Gursel, “For the Sake of Unity: The Drafting History of the European Convention on Human Rights and Its Current Relevance,” in The European Court of Human Rights: Current Challenges in Historical Perspective, edited by Helmut Phillip Aust and Esra Demir-Gursel (Cheltenham, U.K.: Edward Elgar, 2021), pp. 109 and 123. Demir-Gursel notes that the Council of Europe was against fascism, communism and “Hitlerism.”
20. These were the so-called Copenhagen criteria—as adopted by the European Council held in Copenhagen, June 1993. For these purposes they consisted of stable political institutions and the guarantee of human rights—namely accession to the European Convention—and the rule of law. What the latter, in particular, requires is open to debate. The decision on whether candidate states for membership fulfilled the Copenhagen criteria has always been a political one.
21. Application 6833/74, Marckx v. Belgium, June 13, 1979, para. 7 of Dissenting Opinion. Sir Gerald had expressed similar views in an earlier key case, Application 4451/70, Golder v. United Kingdom, February 21, 1975. See para. 40 onwards of his Opinion.
22. For a useful overview of the issues, see Steven Wheatley, The Idea of International Human Rights Law (Oxford University Press, 2019), pp.109ff.
23. Ibid.
24. There is a much wider issue here, as to the inflation and expansion of human rights in treaties and by courts and tribunals, which was first flagged in Philip Alston, “Conjuring Up New Human Rights: A Proposal for Quality Control,” American Journal of International Law 78, 3 (1984), p. 607, https://www.jstor.org/stable/2202599.
25. Notably set out in Application 5865/72, Tyrer v. United Kingdom, April 25, 1978, para. 31.
26. Although the term is actually a misnomer as there is no consensus per se. See broadly Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the European Court of Human Rights (Cambridge University Press, 2015), and further Building Consensus on European Consensus, edited by Panos Kapotas and Vassilis Tzevelekos (Cambridge University Press, 2019).
27. For an example of the Court’s evolutionary approach over time to a particular issue, consider its approach to transgender (referred to in the cases as transsexual) rights in a series of cases against the United Kingdom. In Rees v. United Kingdom [1986] ECHR 11, for example, a female-to-male “transsexual” complained that British law did not allow him to have his birth certificate issued (at the time of birth) amended to show his new gender. The Court did not find a violation of the Convention. By 2002, however, in Christine Goodwin v. United Kingdom [2002] ECHR 588, the Court held, in a broadly similar case, that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, “owing to a clear and continuing international trend towards legal recognition of the new sexual identity of post-operative transsexuals.”
28. Meetings with legal advisers from various European foreign ministries suggest that even twenty years ago it was commonplace to hear that State X or Y would never have ratified the Convention and accepted the system and limitations on its own powers, if it had known the eventual outcome. On the “margin of appreciation” and how it has been deployed by the Court over time, see George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2009), as well as the citations in note 27 above.
29. Application 74025/01, Hirst v. United Kingdom (No. 2) judgment, Grand Chamber, October 6, 2005.
30. See Steven Greer, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, 2006), pp.136ff.; and further, Steven Greer, Janneke Gerards, and Rose Slowe, Human Rights in the Council of Europe and the European Union: Achievements, Trends and Challenges (Cambridge University Press, 2018), pp. 90ff.
31. See Jacques Hartmann, “A Danish Crusade for the Reform of the European Court of Human Rights,” https://www.ejiltalk.org/a-danish-crusade-for-the-reform-of-the-european-court-of-human-rights/ and the so-called Elsinore Reform Process, as set out at the conclusion of the Chairmanship.
32. See Principled Resistance to ECtHR Judgments—A New Paradigm?, edited by Marten Breuer (Berlin/Heidelberg: Springer, 2019) for an excellent set of essays with many national reflections. Also see The European Court of Human Rights and Its Discontents, edited by Spyridon Flogaitis, Tom Zwart, and Julie Fraser (Cheltenham, U.K.: Edward Elgar, 2013) for a variety of perspectives on the Court.
33. For a much broader view, see Aust and Demir-Gursel (eds.), The European Court of Human Rights.
34. At the end of 2020, there were over 13,000 cases pending for Russia, just under 12,000 for Turkey, over 10,000 for Ukraine, and over 7,500 for Romania. These four states represented over 70 percent of all pending cases. See further “The ECHR in Facts and Figures—2020,” https://www.echr.coe.int/Pages/home.aspx?p=reports/factsfigures&c=.
35. See, for example, App. 38263/08, Georgia v. Russia (II), Judgment Grand Chamber January 21, 2021, and Apps 20958/14 and 38334/18 Ukraine v. Russia (re Crimea). In August 2020 the Netherlands also brought an interstate application against Russia over the downed Malaysia Airlines flight MH17 over Ukraine in 2014. On how the interstate application system had been used until recently, see Isabella Risini, The Inter-State Application under the European Convention on Human Rights (Leiden: Brill/Nijhoff, 2018).
36. European Court of Human Rights, “Brighton Declaration,” High Level Conference on the Future of the European Court of Human Rights, 2012, www.echr.coe.int/Documents/2012_Brighton_FinalDeclaration_ENG.pdf. The Brighton Declaration built upon earlier conferences, namely the High-Level Conference on the Future of the European Court of Human Rights, organized by the Swiss Chairmanship of the Committee of Ministers, Interlaken, Switzerland, February 18–19, 2010; and a further High-Level Conference on the Future of the Court, organized by the Turkish Chairmanship of the Committee of Ministers at Izmir, Turkey, April 26–27, 2011.
37. Protocol 15, amending the Convention on the Protection of Human Rights and Fundamental Freedoms, ETS 213. Protocol 15 makes a few small changes to the Convention relating in the main to the age of judges and the period of time within which petitions must be submitted.
38. Ibid. Emphasis added.
39. Namely, Application 42393/98 Dahlab v. Switzerland ECHR 2001-V; Application 44774/98 Leyla Şahin v. Turkey; and Application 43835/11 SAS v. France [2014] ECHR 695. The Court’s regressive approach in SAS can be contrasted with that of the Human Rights Committee in Communication 2807/2016, Hebbadj v. France; and Communication 2747/2016, Yaker v. France, views of July 17, 2018, where on almost identical material facts the HRC found that France was in breach of its obligations under the ICCPR.
40. Application 30814/06, Lautsi & Ors v. Italy, Grand Chamber, March 18, 2011.
41. Application 72508/13, Merabishvili v. Georgia, November 28, 2017.
42. Ibid., para. 305.
43. Ibid., para. 307
44. Ibid., para. 351.
45. Ibid., para. 317.
46. Application 29580/12, Navalnyy v. Russia, Grand Chamber, November 15, 2018, para. 175.
47. Article 3 of the Statute of Council of Europe identifies these as accepting: “The principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realization of the aim of the Council.” In practice a detailed analysis is undertaken of the conditions in a state that seeks membership but there is significant scope for subjective assessment and political considerations to play a role. On Russia’s entry, see Council of Europe, Doc. 7463, January 18, 1996 and Opinion 193 (1996) of rapporteur Mr. Binding at http://assembly.coe.int/nw/xml/xref/xref-xml2html-en.asp?fileid=13932&lang=en.
48. See Parliamentary Assembly, Council of Europe. AS/Jur (2020) 05, February 4, 2020 ajdoc05 2020 Committee on Legal Affairs and Human Rights Implementation of the Judgments of the European Court of Human Rights, 10th Report: Russian Federation, which highlights serious concerns about the situation in Russia.
49. See Resolution 1990 (2014), “Reconsideration on Substantive Grounds of the Previously Ratified Credentials of the Russian Delegation,” Council of Europe, http://www.assembly.coe.int/LifeRay/APCE/pdf/Communication/2014/20140410-Resolution1990-EN.pdf. Russia is one of the five largest contributors, at €33 million per year, and its suspension created a considerable budgetary challenge, as it responded by ceasing its payments to the Council in June 2017. This interruption in financial contributions cost the Council of Europe around €90 million over the period 2017–2019, forcing it to propose severe budgetary cutbacks in 2020–2021.
50. Russia has, of course, played the role of a spoiler by refusing to agree to certain initiatives. See further, Russia and the Council of Europe: 10 Years After, edited by Katlijne Malfliet and Stephan Parmentier (London: Palgrave, 2010).
51. On the limits of rule of law in terms of the ECHR, see Geranne Lautenbach, The Concept of the Rule of Law and the European Court of Human Rights (Oxford University Press, 2013).
52. For example, Application 43447/19, Reczkowicz v. Poland 22 July 2021.
53. Application 4907/18, Xero Flor w Polsce sp. z o.o. v. Poland, May 7, 2021. Article 6 of the European Convention protects the right to a fair hearing and also seeks to ensure tribunals and courts are independent and impartial.
54. The Treaty on European Union (TEU) is the foundational treaty establishing the EU. More generally see Laurent Pech and Kim Scheppele, “Illiberalism Within: Rule of Law Backsliding in the EU,” Cambridge Yearbook of European Legal Studies 19 (2017), p. 3, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3009280.
55. For overviews of both concepts, see, respectively, Jure Vidmar, “Judicial Interpretations of Democracy in Human Rights Treaties,” Cambridge Journal of International and Comparative Law 3 (2014), p. 532, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2426318; and Robert McCorquodale, “Defining the International Rule of Law: Defying Gravity?,” International and Comparative Law Quarterly 65, 2, p. 277, doi:10.1017/S0020589316000026.
56. For an overview, see Urfan Khaliq, Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal (Cambridge University Press, 2008).
57. The process is set out in Article 7 of the TEU.
58. See General Affairs Council, 3674th Council meeting, Brussels, February 19, 2019, Doc. 6547/19. Also see Interinstitutional File: 2018/0902(NLE) Brussels, September 20, 2018 (OR. en) 12266/1/18 REV 1. Also see 2021 Rule of Law Report: The Rule of Law Situation in the European Union, Brussels, 20.7.2021, COM(2021) 700 final, which is scathing about the situation in a number of member states.
