The Concept of ‘Principled Resistance’ to ECtHR Judgments: A Useful Tool to Analyse Implementation Deficits?

Abstract

Recent years have seen a marked increase in ‘clashes’ between national courts on the one hand and international courts and tribunals on the other hand. This article introduces a new analytical pattern, called ‘principled resistance’, in order to analyse deficits occurring during the implementation phase of a Strasbourg judgment. This analytical concept is contrasted with other most recently developed scholarly concepts (‘reasonable resistance’: Palombino; ‘pushback’ and ‘backlash’: Madsen; ‘principled’ and ‘dilatory non-execution’: de Londras and Dzehtsiarou) in order to show differences and commonalities. Furthermore, the limits of (permissible) ‘disagreement’, as opposed to (impermissible) ‘principled resistance’, are explored from an international law point of view. It will be argued that although cases of principled resistance are extremely rare, the concept has an analytical value in that it prevents us from overestimating divergences between national and international courts and tribunals. At the same time, it will be shown that even where courts and other national actors employ legal arguments for their resistance to the ECtHR, those conflicts should be conceptualized as struggles over the proper allocation of powers between the national level and Strasbourg.