Walking Back Human Rights in Europe?
iCourts Working Paper Series, No. 196
31 European Journal of International Law 797–827 (2020)
40 Pages Posted: 16 Jul 2020 Last revised: 11 Feb 2021
Date Written: September 22, 2020
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
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