Resistance to the European Court of Human Rights: The Institutional and Sociological Consequences of Principled Resistance

Abstract

The European Court of Human Rights (ECtHR/Court) has from time to time has faced resistance. This critique has come from a host of actors in the Member States, ranging from the highest courts to politicians, academics and individual lawyers. Even public opinion has also voiced critique of the Court. Resistance to the ECtHR is however neither new nor unique. From the Greek exodus from the European Convention system in the late 1960s, over the British critique under Prime Minister Thatcher during the 1980s to current Strasbourg bashing, criticism of the Court has been a recurrent phenomenon. But how do we make sense of these different and scattered examples of resistance across different Member States without lumping together all kinds of critique under the header of backlash? Engaging with the notion of principled resistance developed by Marten Breuer, this paper explores the sociological dimensions of resistance to international courts. Using this more sociological approach, the chapter suggests that what in practice ends up as principled resistance to the ECtHR does not necessarily involve higher order normative clashes in a legal sense. Instead, what in practice can be observed is how small scale conflicts over ordinary legal provisions and practices can escalate into principled disagreement with serious implications for an international court such as the ECtHR.