Independent yet accountable
| Author | Andreas Follesdal |
| Published date | 01 August 2017 |
| Date | 01 August 2017 |
| DOI | http://doi.org/10.1177/1023263X17729945 |
| Subject Matter | Articles |
Article
Independent yet accountable:
Stress test lessons for the
European Court of Human Rights
Andreas Follesdal*
Abstract
An important ‘stress test’ for regional human rights courts would be to see how well such courts
perform when faced with authoritarian, human rights-violating regimes that they are supposed to
hinder or constrain. These states are not only subjects of the court, but also its masters insofar as
they enjoy various forms of control and accountability mechanisms that may constrain the court’s
independence. The article argues that, at least in the case of the European Court of Human Rights
(ECtHR), its precarious ‘constrained independence’ should be modified to enhance its impact even
under such circumstances. Such changes could strengthen the ECtHR’s impartial and independent
role without running the risk of turning it into a so-called ‘juristocracy’ - subjecting European states
to the arbitrary rule of international judges.
Keywords
Accountability, independence, European Court of Human Rights, selection of judges, selection of
cases, gender bias, professional background, role of registry
1. Introduction
The European Convention on Human Rights (ECHR) along with its European Court of Human
Rights (ECtHR) were set up after the Second World War to check or constrain the authoritarian
tendencies that had existed in European states.
1
Is the ECtHR well designed for this task?
* Co-Director of PluriCourts - Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order, Professor
of Philosophy, University of Oslo
Corresponding author:
Andreas Follesdal, PluriCourts, University of Oslo, P.O box 6706, St. Olavs plass 5, 0130 OSLO, Norway.
E-mail: andreas.follesdal@jus.uio.no
1. Research for this article was partly supported by the Research Council of Norway through its Centres of Excellence
Funding Scheme, project number 223274 – PluriCourts: The Legitimacy of the International Judiciary. Previous
Maastricht Journal of European and
Comparative Law
2017, Vol. 24(4) 484–510
ªThe Author(s) 2017
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DOI: 10.1177/1023263X17729945
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An important ‘stress test’ for regional human rights courts, such as the ECtHR, would be to see
how well such courts perform under the sort of unfavourable conditions they are supposed to
hinder. Such a stress test might occur as a ‘natural experiment’ as the result of an increase in
governments that are skeptical of delegating some of their authority to international bodies, and
whom are particularly wary of human rights insofar as they threaten traditional community values.
Some argue that this is an accurate description of parts of the present political climate in Europe,
where attitudes toward perceived transnational threats have increased in salience. Political parties
described as traditional/authoritarian/nationalist (TAN)
2
have become more influential in several
countries. Some see a ‘neo-Westphalian’ movement of populations and their governments towards
more traditional, nationalist strategies, including the re-nationalization of previously international/
regionally pooled or delegated sovereignty. This tendency challenges universal and regional
human rights authorities, especially those that protect critical media, or religious, ethnic, sexual
and other minorities to the perceived detriment of the wider national society and its values.
3
Such descriptions are contested,
4
yet the question remains: how well can a regional human
rights court, such as the ECtHR, protect and promote human rights even against the will of several
states? These states are not only subjects of the ECtHR, but also its masters insofar as they enjoy
various forms of control and accountability mechanisms that may constrain the ECtHR’s inde-
pendence. We should not expect the ECtHR to completely prevent authoritarian governments. Yet,
I shall suggest that it may be possible to bolster the ECtHR’s precarious ‘constrained indepen-
dence’ and even enhance its impact under such circumstances. Such changes may strengthen the
ECtHR’s impartial and independent role without running the risk of turning it into a ‘juristocracy’
– that is, subjecting European states to the arbitrary rule of international judges.
One main function of domestic and international courts is to provide a sufficient and impartial
means of settling disputes – including review – on the basis of legal norms established indepen-
dently of the particular case, and then competently applied to the particular case with due consid-
eration of local circumstances.
5
Some disputes take the form of judicial review of legislation and
policies: that is, whether there is a breach of the treaty. Other disputes mainly concern the
application of undisputed legislation. In order to address and sometimes to resolve such disputes
by a court applying pre-existing legal rules, the parties must accept and respect the judgments, even
when some of their claims remain unsatisfied. To serve this role as an umpire, a court must be
perceived by the losers, and by potential losers, to satisfy several desiderata.
The court must be designed, embedded, staffed and operate so as to secure and exhibit several
partially conflicting normative standards or considerations, including independence, impartiality,
competence and accountability.
6
Independence also creates new risks. The international court may
versions were presented at Masaryk University, Brno, 30 May 2014 and in Prague on 16 October 2015. The author is
grateful for the comments received from David Kosarˇ and Aida Torres Pe´rez.
2. L. Hooghe et al., ‘Does Left/Right Structure Party Positions on European Integration?’, in G. Marks and M.R. Steen-
bergen (eds.), European Integration and Political Conflict (Cambridge University Press, 2004), p. 131.
3. S. Hopgood, The Endtimes of Human Rights (Cornell University Press, 2013).
4. T. Landman, ‘Social Magic and the Temple of Human Rights: Critical Reflections on Stephen Hopgood’s Endtimes of
Human Rights’, in D. Lettinga and L. van Troost (eds.), Changing Perspectives on Human Rights: Debating the
Endtimes of Human Rights - Activism and Institutions in a Neo-Westphalian World (Amnesty International, 2014).
5. M. Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press, 1981).
6. Compare, e.g. B.Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004).
Follesdal 485
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