When institutions take on too much power, it’s hard to miss. Whether it be through mission creep or activism, all eyes are on them as they go down paths that were not foreseen by their designers. But, has an institution ever left power unused, still sitting on the table? Between Forbearance and Audacity: The European Court of Human Rights and the Norm Against Torture (Cambridge University Press, 2023) tells a story of when this happens and, more importantly, who wins and who loses when institutions do not take on all the powers that they are given—that is, when they show forbearance.
When states join a human rights treaty with supranational supervision, they choose to give up some of their sovereignty. Their actions within their borders become subject to supranational review. But they all have a breaking point—some upper limit of how much sovereignty cost they are willing to accept before they push back. The European Court of Human Rights understands this. In response, its strategy has been to under-utilize its power when necessary. Instead of progressively developing human rights norms to the maximum, it sometimes shies away from doing so, even showing deference to states and ruling in their favor. This balancing act keeps member states committed to compliance and ensures continued membership. However, when the Court shows forbearance, their core beneficiaries lose out: the victims. If the Court exceeds its mandate, it may be costly to the states, but when it falls short, justice eludes the complainants, and future victims lose vital protection.
Between Forbearance and Audacity explains this delicate balance by focusing on five decades of the European Court’s case law on the prohibition of torture and inhuman or degrading treatment. Relying on expert interviews and a combination of social science and legal methods, I find that the Court has walked back on rights afforded to refugees, asylum seekers, or irregular migrants. It has been particularly lenient towards Western European states when assessing their acts and policies against the nonrefoulement principle, which specifies that member states may not return or expel persons to a country where there is a significant risk of torture or ill-treatment.
Regressive and progressive trends at the European Court of Human Rights
In order to historicize the Court’s changing attitudes towards the nonrefoulement principle and other specific obligations under the prohibition of torture and inhuman or degrading treatment, I have mapped out the Court’s anti-torture jurisprudence between 1967 and 2016. Specifically, I have carried out a systematic analysis of nearly 2,300 rulings related to this prohibition. I separated cases by issue area and tracked the progressive and regressive trends for each one. The trends observed in this analysis are corroborated by expert interviews with current and former judges, law clerks, and civil society groups. In fact, these interviews show that the Court’s attention to state sensitivities has been a constant driver of these changing attitudes. This relationship has sometimes compelled the Court to show forbearance and backtrack from its progressive tendencies when tackling issues that are a target of member states’ concerted criticism and backlash. Interestingly, this strategic trade-off affected the Court’s treatment of an absolute norm like the prohibition of torture and inhuman or degrading treatment, from which states cannot seek exemptions even during wars or due to national security crises. Hence, under normal circumstances, one would not expect to see any sign of deference when it comes to the Court’s treatment of obligations falling under this prohibition.
However, my analysis shows clear instances of forbearance. As a matter of fact, the Court has operated at two speeds to prevent and mitigate backlash from states and stay in their favor. On the one hand, it has audaciously developed certain obligations under this norm, such as the elimination of police brutality or the provision of legal protection and remedy. On the other hand, it has visibly shown forbearance when treating claims touching upon sensitive state interests, such as the rights of immigrants, asylum seekers, and refugees. It has done this by excluding some claims from the scope of its review or by finding states in violation less frequently for some claims than for others.
The Court may disregard violations of absolute prohibitions by ‘good faith interpreters’
The Court has treated Western European countries more favorably when it comes to reviewing their treatment of refugees and asylum seekers as well as their policies that undermine the nonrefoulement principle. This essentially meant that the Court issued fewer violation rulings against Western European countries and showed deference towards the decisions of their domestic courts and institutions (procedural deference). Indeed, the Court’s favorable treatment of Western European countries that are known to be the “good faith interpreters” is recognized in the literature. What I find in this study supports these claims and indicates the Court’s willingness to show deference even in the context of an absolute prohibition, which normally should not leave much room for deference.
This behavior is in direct response to the overlapping grievances expressed by the Court’s long-time allies, such as the United Kingdom, Denmark, and Switzerland. They expressed these grievances in a concerted manner during the High-Level Conferences on the Future of Europe—a series of meetings organized in Interlaken (Switzerland), Izmir (Turkey), Brighton (the UK), Brussels (Belgium), and Copenhagen (Denmark) between 2010 and 2018. These High-Level Conferences were consequential in restructuring the European human rights regime, addressing the Court’s growing caseload. Organized at the initiative of the Swiss, Turkish, British, Belgian, and Danish Chairmanships of the Council of Europe, these conferences presented member states with a venue to express their criticisms, targeting the Court’s most progressive rulings and audacious approach to human rights protection. These criticisms served as nudges (gentle or otherwise), signaling the Court in a desired direction. These nudges worked because, after that, the European Court took a step back from progressive rulings on the rights of refugees and asylum seekers.
State dependency and backlash politics threaten human rights protections
What does this finding mean for the discussions about the costs and consequences of backlash against liberal institutions? The European Court’s deferent attitudes to (mostly Western) European states when treating claims related to the nonrefoulement principle serve as a good illustration of how backlash operates and undermines liberal institutions’ progressive policies and outputs. Indeed, the recent surge of backlash is having tangible adverse effects on the protection of vulnerable groups such as refugees and asylum seekers both in Europe and elsewhere. As we see in this case, when states attempt to influence the courts’ interpretive choices and decisions through backlash and concerted criticism, this frequently leads to detrimental outcomes for such vulnerable groups.
While abolishing courts or making them dysfunctional is reserved for extreme cases, a more mundane and common effect that states seek is to influence their decision and encourage more state-friendly outcomes. States have such an influence on international courts because international courts depend on states. The importance of states’ positive appraisal of them is the Achilles’ heel for international courts. They need states to enforce their decisions, uphold their legitimacy, and fund their operations and personnel. The healthy operation of international courts indeed depends on states. This dependency means that sometimes courts need to offer trade-offs or resort to avoidance to cultivate state support. International courts and their missions are at the most risk when the courts’ need for trade-offs increases. It is under such circumstances that we can truly observe how state power operates behind the scenes to determine which victims deserve protection and how much protection they deserve.
Autonomy and authority for courts breed judicial courage
International courts can also work audaciously by pushing for progressive understandings of existing norms and by enhancing protections afforded to victims. Such instances of judicial courage and audacity also exist in the European Court’s history and in its jurisprudence on the prohibition of torture and inhuman or degrading treatment. Looking at the case of the European Court, one can identify the ideal settings for audacious court rulings. Judicial courage tends to flourish in favorable institutional setups (those that yield higher degrees of autonomy and authority for courts) and supportive discursive environments (that are not tainted by concerted attacks and backlash against progressive rulings). The history of the European Court teaches us that it matters a great deal to give courts spaces to flourish with limited to no control over their operations and decisions. Adopting such favorable institutional design features when creating and reforming international courts and court-like bodies can make all the difference for an independent judiciary and the protection of the most vulnerable groups’ rights.
About the Author:
Ezgi Yildiz is an Assistant Professor of International Relations at California State University, Long Beach and a Research Associate at the Global Governance Center of the Geneva Graduate Institute. She conducts interdisciplinary research on international relations and international law and specializes in international courts, human rights, and ocean governance. You can read more about her research at www.ezgiyildiz.com. She tweets at @ezgiyyildiz, and you can connect with her on LinkedIn. This think-piece is based on her book Between Forbearance and Audacity: The European Court of Human Rights and the Norm Against Torture (Cambridge University Press, 2023) (open access).
The views and opinions expressed in this think-piece are those of the authors and do not necessarily reflect the official policy or position of SIPA or Columbia University.