The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash

Abstract

This article examines the changing authority of the European Court of Human Rights (ECtHR) since its establishment in 1959. The first part focuses on the particular challenges the Cold War period posed for the Court and its constituencies. A second part considers the post-Cold War period in which the Court was fundamentally transformed from an ad hoc tribunal to becoming a permanent international Court for some 800 million Europeans. It argues that it was not until the mid- to late 1970s that the authority of the ECtHR expanded beyond a rather narrow group of litigants. The very limited case-load of the first fifteen years of operation made the Court of little or no importance to states other than those immediately involved in the scattered cases. Over time the ECtHR developed extensive authority, becoming a de facto supreme court of human rights in Europe. The European Court of Human Rights had a steady and growing business, and despite occasional counter-reactions to its expanding jurisprudence member states generally comply with its judgments. However, in recent years the European Court has come under repeated attack by new and old member alike, and especially the United Kingdom and Russia. It argues in conclusion that in recent years the authority of the Court has become increasingly uneven and partial and, in light of the 2012 Brighton Declaration, perhaps it has even started shrinking.