Walking Back Human Rights in Europe?

iCourts Working Paper Series, No. 196

Forthcoming in European Journal of International Law

Duke Law School Public Law & Legal Theory Series No. 2020-50

40 Pages Posted: 16 Jul 2020 Last revised: 22 Sep 2020

See all articles by Laurence R. Helfer

Laurence R. Helfer

Duke University School of Law; University of Copenhagen - iCourts - Centre of Excellence for International Courts

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS)

Date Written: September 22, 2020

Abstract

Judges and scholars have long debated whether the European Court of Human Rights (the ECtHR or the Court) can only expand, never diminish, human rights protections in Europe. Recent studies have found that political backlashes and national-level restrictions have influenced ECtHR case law. However, analysing whether the ECtHR is shifting in a regressive direction faces an empirical challenge: How can we observe whether the Court is limiting rights over time if the ECtHR has never expressly overturned a prior judgment in a way that favours the government? We gain traction on this question by analysing all separate and minority opinions of the ECtHR Grand Chamber between 1998 and 2018. We focus on opinions asserting that the Grand Chamber has tacitly overturned prior rulings or settled doctrine in a way that favours the respondent state, which we label as ‘walking back dissents’. We find that walking back dissents have become significantly more common in the last decade, revealing that some members of the ECtHR themselves believe that the Grand Chamber is increasingly overturning prior judgments in a regressive direction.

Keywords: European Court of Human Rights, ECtHR, Political Backlash, Human Rights Protection, Interpretation, Minority Opinion

Suggested Citation

Helfer, Laurence R. and Voeten, Erik, Walking Back Human Rights in Europe? (September 22, 2020). iCourts Working Paper Series, No. 196, Forthcoming in European Journal of International Law, Duke Law School Public Law & Legal Theory Series No. 2020-50, Available at SSRN: https://ssrn.com/abstract=3633877 or http://dx.doi.org/10.2139/ssrn.3633877

Laurence R. Helfer (Contact Author)

Duke University School of Law ( email )

210 Science Dr.
Box 90360
Durham, NC 27708
United States
+1-919-613-8573 (Phone)

HOME PAGE: http://law.duke.edu/fac/helfer/

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

University of Copenhagen Faculty of Law
Karen Blixens Plads 16
Copenhagen S, DK-2300
Denmark

HOME PAGE: http://jura.ku.dk/icourts/

Erik Voeten

Georgetown University - Edmund A. Walsh School of Foreign Service (SFS) ( email )

Washington, DC 20057
United States

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