We may doubt whether human rights are still the focus of debate in European societies. Other topics such as climate change and loss of natural resources have started dominating the headlines; end-of-the-world-scenarios drive people on the streets. A single new right – the ‘right to survival’, seems to replace the panoply of human rights that have developed over centuries.

However, even if superseded by more urgent and more universal political questions, human rights discourse is vivid, powerful, and controversial. It is, however, no longer a clear pro-human-rights discourse. More and more loud voices with an anti-human rights agenda emerge, a famous example being the debate surrounding Lord Sumption’s Reith lectures published in 2019 under the title ‘Trials of the State’. According to him there are not only ‘human rights’, but also ‘human wrongs’. He – a former UK Supreme Court judge – prominently argues that higher values fixed in constitutions or treaties are basically incompatible with a free play of forces in democracy. ¹

Theoretical debates mirror challenges for practitioners. Human rights jurisprudence is put to the test in two very different ways. On the one hand, the human rights situation in some parts of Europe is so dire and desperate that a court such as the European Court of Human Rights (‘Court’) cannot do more than spread a bit of water on a burning forest. On the other hand, the system is being stretched far beyond its limits and deals with issues it was not set up for. In the eyes of critics like Lord Sumption, human rights jurisprudence thus loses its legitimacy:

…most of the rights which the Strasbourg Court has added to our law are quite unsuitable for inclusion in any human rights instrument. They are contentious and far from fundamental. This has transformed the Convention from an expression of noble values, almost universally shared, into something meaner. It has become a template against which to assess most aspects of the ordinary domestic legal order, including some highly disputable ones. The result is to devalue the whole notion of universal human rights. ²

The challenge for the Court is thus twofold. It has to find effective remedies against very basic human rights violations in systems that can hardly be called ‘democratic’. At the same time it has to use the ‘living instrument’ doctrine in such a way as to respond to legitimate queries, but not to constrain and frustrate community-building democratic debate on controversial issues in the Convention States.

The first problem is mirrored in the Court’s exponentially growing jurisprudence on Article 18 of the Convention. ³ This is considered to be the ‘nuclear option’ in the Court’s arsenal. Finding a violation of Article 18 means not only criticising specific measures as incompatible with the Convention, but also reproaching the respondent state for acting with bad faith. For a number of decades the Court was reluctant to find a violation of Article 18 of the Convention; its interpretation was overtly restrictive, demanding ‘incontrovertible and direct proof’ of abusive behaviour on the part of the authorities. ⁴ Furthermore, the ‘ulterior purpose’ of the measure had to be exclusive and present from the beginning to the end. ⁵ This restrictive approach was modified step by step, applying the same standard of proof as in other cases, and allowing the application of Article 18 even where there is a ‘plurality of purposes’. ⁶ As a result, in the last ten years in twelve high-profile cases against Russia, Azerbaijan, Turkey, Ukraine and Georgia violations of Article 18 have been found – six times more violations in the last decade than in the five preceding decades. The change of approach was based on a multitude of dissenting and concurring opinions urging the Court to call a spade a spade and to clearly signal a difference between ‘normal’ human rights violations and purposeful abusive behaviour.

The effects of this new jurisprudence remain to be seen. In the case of Mammadov v Azerbaijan the Court’s judgment was not implemented over many years despite the red signal of an Article 18 violation. A procedure under Article 46 para 4 of the Convention was necessary in order to finally stop what was criticised to be an arbitrary detention for ulterior political purposes. ⁷ It is also true that in other cases, sadly, the finding of an Article 18 violation is not necessarily enough to bring about a change in a recurrent pattern of State action. That is why there is a danger that Article 18 violations might soon be understood as everyday criticism, and lose their special effect of ‘blame and shame’.

The response to the second problem is strengthening the principle of subsidiarity in the Court’s jurisprudence. This was high on the agenda during the debate on the adoption of the Copenhagen declaration and – after fierce debate – let to generally acceptable results. With the entry into force of Protocol 15, the principle of subsidiarity will be explicitly taken up in the Preamble to the Convention. Whether this reform is accompanied by a subsidiarity trend in the Court’s jurisprudence is, however, doubtful. It is true that the Court has given leeway to national specificities in important cases, especially those concerning controversial ethical questions or the relationship between the state and religious communities. ⁸ Yet, the interpretation of the formula ‘necessary in a democratic society’ is as differentiated and nuanced as it has always been and does not allow for discerning a pattern of reduced control. The main effect of the reform might be a sincere reflection on the question of whether ‘more’ is always ‘better’ in the field of human rights.