Abstract The European Convention of Human Rights system was originally created to sound the alarm if democracy was threatened in the member states. Yet, it eventually developed into a very different system with a focus on providing individual justice in an ever growing number of member states. This transformation has raised fundamental questions as to the level of difference and diversity allowed within the common European human rights space. Was the system to rest on minimum standards with room for domestic differences, or was it to create uniform standards? These questions have come up as increasingly contentious issues over the past years and have triggered a number of reforms seeking to introduce more subsidiarity in the system, striking a different balance between the European and national oversight of human rights. The article analyses this turn to subsidiarity by exploring whether the reform process has introduced new forms of difference and diversity within the common space of European human rights. Covering the period from 2000 to the end of 2019 and using a dataset of all judgments of the period, the article provides a structural analysis of developments in reference to the margin of appreciation which is the European Court of Human Rights' long-standing tool for balancing the common standards, yet leaving space for individual member states to find local solutions to implementing those standards. It concludes that recent developments have contributed to a more federal-style construction of European human rights with more space for differences within the common general standards.
in: Madsen, Mikael and Mayoral, Juan A. and Strezhnev, Anton and Voeten, Erik, Sovereignty, Substance, and Public Support for European Courts' Human Rights Rulings, American Political Science Review (forthcoming)
Is the public backlash against human rights rulings from European courts driven by substantive concerns over case outcomes, procedural concerns over sovereignty, or combinations thereof? We conducted preregistered survey experiments in Denmark, France, Poland, Spain, and the United Kingdom using three vignettes: a foreigner who faces extradition, a person fighting a fine for burning Qurans, and a home owner contesting eviction. Each vignette varies with respect to whether a European court disagrees with a national court (deference treatment) and whether an applicant wins a case (outcome treatment). We find little evidence that deference moves willingness to implement judgments or acceptance of court authority but ample evidence that case outcomes matter. Even nationalists and authoritarians are unmoved by European court decisions as long as they agree with the case outcome. These findings imply that nationalist opposition to European courts is more about content than the location of authority and that backlash to domestic and international courts may be driven by similar forces.
Are international institutions more prone to face backlash politics than domestic ones? Are international institutions easy targets for satisfying domestic political interests? Using the case of the recent criticism of the European Court of Human Rights, the article explores whether international institutions are more susceptible to face backlash politics than domestic ones due to the dual nature of international politics. The empirical study, focusing on the reform of the European Court of Human Rights through the 2018 Copenhagen Declaration, suggests that pre-existing commitments to international institutions might be given up rapidly when significant domestic interests collide with international institutions and their practices. The analysis, however, also shows that backlash politics against international institutions is transformed when seeking institutional reform. Entering a collective bargaining process, backlash objectives are changed by the logic of diplomatic negotiation, academic scrutiny and the interests of the other member states and civil society. This suggests that the two-level logic of ordinary international politics has a mediating effect on domestically fuelled backlash campaigns.