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The Narrowing of the European Court of Human Rights? Legal Diplomacy, Situational Self-Restraint, and the New Vision for the Court

In: European Convention on Human Rights Law Review
Author:
Mikael Rask MadsenProfessor of European Law and Integration; Director of iCourts, Centre of Excellence for International Courts, University of Copenhagen, Copenhagen, Denmark, mikael.madsen@jur.ku.dk

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Abstract

In recent years, the European Court of Human Rights (ECtHR) has faced a growing number of challenges, stemming, among other reasons, from problems with the implementation of some of its judgments, an upsurge of sovereigntist sentiments in some member states, and the rise of de facto illiberal democracies within its jurisdiction. This article examines the effects that these changing contexts have had on the operation of the ECtHR. In very general terms, the article finds that the ECtHR has become increasingly more restrained, but that this restraint plays out in multiple different ways which reflect the structural differences among the member states with regard to the protection of human rights. The article argues that the ECtHR has developed a new and differentiated legal rationality that combines elements of its original legal diplomacy with new forms of self-restraint and a new, revised vision for its overarching role in the protection of European human rights. The overall result is a narrowing of the role of the Court.

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