Introduction: The democratic ambivalence of the European Court of Human Rights
[T]his House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.
Thus opened a debate on the issue of prisoner voting in the UK in the lower house of the UK legislature on the 10th of February 2011. It was one step in a well-known and increasingly bitter argument between the Strasbourg Court and national UK institutions provoked by the Court’s ruling in 2005 that the UK legislature’s undifferentiated ban on voting for most prisoners regardless of the offence committed or the length of the sentence was a breach of the right to vote protected by Article 3 of the 1st Protocol (P1) of the Convention.Footnote 1 The judgement also provoked strong reactions in other quarters of the British establishment, with then UK Prime Minster David Cameron declaring that the matter of prisoner voting was for the ‘[UK] Parliament to decide, not a foreign court’Footnote 2; members of a Parliamentary Committee on the matter arguing that in the Hirst decision the ECtHR had ‘exceeded its mandate in seeking to dictate to a democratically elected legislature the detailed arrangements regarding prisoner voting’Footnote 3 noting the need for ‘further reform of the Court and in particular of its relationship to democratically elected national legislatures’ Footnote 4; and individual politicians and even senior members of the judiciary arguing that the UK should ‘stand firm … to prevent future incursions into the sovereignty of our democracy [sic]’Footnote 5 or calling for the possibility of a ‘democratic override’ of decisions from the ECtHR,Footnote 6 based on the fact that such decisions coming from a ‘foreign court’ suffered from a ‘democratic deficit’. Footnote 7
This is but one discrete example of a broader trend over recent decades, where prominent actors of Convention Signatory states across Europe have attacked the Court for undermining national democracy.Footnote 8 As can be clearly seen in the prisoner voting example, the common theme in these attacks is that the decisions of the ECtHR, an international court, undermines national democracy by challenging law and policy produced by national democratically representative bodies upheld by national courts, something which has only intensified even more recently in respect of the Court’s decisions impacting upon national immigration policy.Footnote 9
There is, of course, an irony in the UK’s reaction to the Court’s decision on prisoner voting: whereas the decision was decried as a threat to democracy, the substance of the ECtHR’s decision itself was to extend the franchise to hitherto excluded members of the society. On its face, then, the decision could be interpreted as emphatically promoting rather than undermining national democracy. Indeed, democracy promotion is something the Court itself has seen as part of its mission since its foundation. The fact that, in the words of one former president of the Court, ‘[t]he democratic ideal permeates the Convention in every respect – its historic origins, its spirit and … the case law of the court’Footnote 10 is something that has dominated the self-understanding of the Court since its inception.Footnote 11 It was there in the drafting of the Convention itself, with delegates arguing that the Convention was necessary to ‘ensure that the States of the Members of the Council of Europe are democratic, and remain democratic’Footnote 12; that the Convention would provide a ‘code of law for the democracies’Footnote 13; and that the rights and freedoms protected by the Convention were those considered ‘essential for a democratic way of life’.Footnote 14 It is reflected in recital 5 of the preamble to the Convention, which states that the ‘best’ way to protect the Convention’s ‘fundamental freedoms’ (which, the recital maintains, are the ‘foundation of justice and peace in the world’) is to maintain ‘an effective political democracy’.Footnote 15 Furthermore, many of the rights protected by the Convention have, in one way or another, been identified by the Court as having a close association with the value of democracy, chiefly among them the ‘political’ rights protected in Articles 8–11 and the right to vote and stand for election protected by Article 3 of the first protocol of the Convention, allowing the Court to conclude that ‘[d]emocracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it’.Footnote 16
Alongside the democracy-enhancing features of particular rights contained in the Convention, the Court has furthermore emphasized the relationship between the Convention and democracy in its interpretation of the restrictions in the ‘political rights’ contained in Articles 8–11. Each of these articles in their second-paragraph restrictions explicitly envisages a particular conception of ‘democratic society’ which can make a particular restriction on, say, the freedom of expression, ‘necessary’ for the purposes of the Convention.Footnote 17
The role of the ECtHR in democracy promotion within its signatory states, therefore, is ambivalent, with both sides in the contemporary political debate – national officials and the Court – claiming to uphold the value of democracy.Footnote 18 On one side of the debate, that promoted by national actors, notwithstanding divergences between different constitutional systems, the basic idea of democracy at stake is a relatively intuitive one which almost seems to defy justification: democracy means whatever national self-styled democratic constitutional arrangements prevail in the national constitutional settlement. This involves, paradigmatically, and perhaps most obviously, representative assemblies (potentially supported by national constitutional courts), which make the laws that apply within their jurisdiction in the pursuit of the ideal of self-legislation.Footnote 19 While the idea of a representative law-making assembly intuitively seems like a sine qua non of any arrangement which can be plausibly considered democratic, this, rather simple, understanding of democracy struggles with the idea of a role for an international human rights court in reviewing national democratically produced laws. Indeed, as we have seen, this understanding of democracy leads to a defensiveness with regard to the rulings of an international human rights court, where democracy functions as a sort of shield against perceived overreach in the rulings of the Court.Footnote 20 On the other side of the debate, of which the ECHR’s rhetoric around democracy is representative, a more substantive conception of democracy is in question.Footnote 21 On this view, democracy requires, alongside representative law-making institutions, respect for certain substantive features of political processes, including deliberation,Footnote 22 pluralism,Footnote 23 tolerance and broadmindedness,Footnote 24 and dialogue and a spirit of compromise,Footnote 25 all supervised by an international human rights court such that national democratic decision-making and rights protection go ‘hand in hand with European supervision’.Footnote 26
Ambivalence is not, by itself, a bad thing. Bauman famously defended ambivalence,Footnote 27 and in a complex constitutional architecture such as that involving the ECHR and national constitutional systems, a measure of ambivalence can ‘grease the wheels’ of the functioning of the Convention. However, the ambivalence prompted by the democratic role of the Court in the past two decades has arguably had significant negative repercussions for the Court. The tenor of many of the political disagreements with the Court’s decisions have strayed well beyond legitimate, good faith, critique of the Court when it makes mistakes or potentially overreaches, marshalling the idea of democracy into a weapon to attack the very authority of the Court and its role in interpreting and adjudicating upon the rights contained in the Convention in a context of political polarization and increasing extremism in national democracies more generally.Footnote 28 This can have implications not only for the protection of rights in its signatory states, quite obviously, but also, potentially, for national democracy too.
This imbalance in political debates about the role of the Court in promoting democracy within its signatory states is not entirely attributable to national political actors; the Court itself has often struggled to provide a substantive justification for its role in democracy promotion beyond simple, and perhaps simplistic, rhetoric.Footnote 29 The aim of the current contribution, then, is to contribute to academic scholarship aimed at ‘raising the level’ of political debates involving the complex question of democracy within the Convention system,Footnote 30 based on the republican democratic theory of Phillip Pettit.Footnote 31 It does this by clarifying particular reasons for a democratic role for the Court which, as we have noted, have been relatively absent from the contemporary political debate on the Court.Footnote 32
As we will see, Pettit’s republican account of democracy provides a particularly useful way of understanding the ways in which the ECtHR can contribute to the promotion of democracy in that it envisages a democratic role for non-representative institutions such as courts and shows how they can contribute to strengthening the practice of democracy in two significant ways: they can contribute to ‘testing’ the decisions of electoral institutions such as legislatures to ensure popular influence on government; and they can also help ensure the popular direction of government by contributing to the development and maintenance of fundamental norms of public acceptability expressing this popular direction in tandem with national institutions, including national courts.Footnote 33 The paper goes on to examine the role of the ECtHR as a potentially important institution in promoting and upholding this republican account of democracy in respect of state parties to the ECHR. It emphasizes two features of the Court’s practice in this regard: its robust independence from domestic electoral institutions when compared with national courts helping ensure the popular influence of government and the role of its interpretative doctrines – particularly its evolutionary approach to the interpretation of Convention rights – in shoring up the norms which guide government in a popular direction.
The paper will proceed as follows: Part II reviews and highlights the key elements of Pettit’s theory of republican democracy relevant to a democratic role for the ECtHR; Part III draws on comparative constitutional scholarship to provide an analysis of elements of the organization and work of the ECtHR in the light of Pettit’s republican democracy; and Part IV concludes.
Pettit’s republican democracy
As we can see from the debates involving the ECtHR, the value of democracy is a contested one. In Gallie’s exploration of the idea of an ‘essentially contested concept’, he offered the concept of democracy as an essentially contested concept par excellence. Footnote 34 We have, therefore, in democratic theory, a wide variety of definitions and conceptions to choose from. However, in thinking about the democratic ambivalence surrounding the ECtHR and exploring ways of further clarifying the role of this international human rights court in democracy promotion, we are not concerned with an account of democracy in the abstract, necessarily, but rather with a conception of democracy which can function and make sense under the current political and institutional arrangements in our area of interest: Europe’s composite system of rights protection and democracy promotion made up of national institutions as well as the ECHR. We are, in Pettit’s words, therefore, interested in ‘realistic’ rather than ‘other-worldly’ theories of democracy: ones that can ‘inform politically serious contemporary debate’Footnote 35 such as those surrounding the role of the ECtHR in the national democracies of its signatory states. The focus of this particular democratic debate, then, is on institutions: which institutions – legislatures, courts, international courts – can claim to have a legitimate role in promoting and shaping national democracy and which cannot.
What makes Pettit’s republican account of democracy particularly suited to our task, then, is its institutional focus right down to the key value of his account – his republican conception of freedom. In particular, three dimensions of Pettit’s account are important for this purpose: his definition of republican freedom, his account of the control necessary for this freedom and his institutional prescriptions of how that control and therefore freedom can be achieved. Whereas these elements of Pettit’s work have received considerable attention in the literature,Footnote 36 it is worth dwelling on them momentarily in order to help clarify the ECHR’s potential democratic credentials.
Republican freedom
Pettit’s institutional focus goes all the way down in his account, beginning with the very basic value which justifies democratic governance: freedom. Freedom, on Pettit’s republican account, is not the negative freedom associated with classic liberal understandings of the idea such as those associated with Thomas Hobbes or Isiah Berlin, where freedom is defined as the absence of ‘hinderance’ or ‘non-interference’.Footnote 37 Drawing on the classical republican tradition, Pettit argues that freedom involves the idea of non-domination. Domination occurs, for Pettit, where one agent has a certain power over another ‘in particular a power of interference on an arbitrary basis’.Footnote 38 Thus, on the republican account of freedom as non-domination, even if a slave-owner, colonial metropole or political authority is generally well disposed to a slave, colony or subject, treats them well and, for much of the time, does not interfere with their choices, the latter are perpetually susceptible to their choices being interfered with by the former on terms which they cannot control. Freedom, on this view therefore, involves a type of ‘structural’Footnote 39 independence of agents where law and institutions have a particularly important role.Footnote 40
In the context of political authority, this republican account seeks to establish the types of institutions and inter-institutional relationships necessary to preserve this ideal of freedom as non-domination. Here, the issue of domination relates to how one can be subject to political authority, including to a decision which they do not endorse and yet still somehow avoid being dominated: that is, avoid interference on an arbitrary basis. Pettit squares this circle through the idea of control. If domination on the republican account is uncontrolled interference, including by a political authority, where the interference by the political authority is controlled by the political subject, then domination does not occur. This is the key ingredient of Pettit’s republican account of democracy.Footnote 41
Control as influence and control as direction
Of particular relevance to the institutional prescriptions necessary to preserve republican freedom, Pettit considers the issue of the subjection of political power to popular influence and popular direction as central to securing control on this republican understanding.Footnote 42
With regard to the question of influence, control must, for Pettit, be ‘individualized appropriately’ in the sense that everyone subject to the authority is given an ‘equal share’Footnote 43 in the control of the government. Such individualized control must also be ‘unconditioned’ in character in the sense that it is not granted as an indulgence or on the whim of another.Footnote 44 Furthermore, equally shared influence requires equal access to the system of popular influence rather than equal actual influence. What is required is ‘an opportunity for participation in that system that is available with equal ease to each citizen’.Footnote 45
With regard to the question of the direction dimension of control, he argues that a non-dominating political authority must achieve a result in the form of, say, legislation that ‘each is ready to accept; that each is disposed to find acceptable’Footnote 46 at least to those ‘who are willing to live on equal terms with others’.Footnote 47 It is in these twin requirements of access and acceptability, of popular influence and popular direction, that the key institutional prescriptions of Pettit’s account emerge.
Mechanisms of popular influence
Here, Pettit argues that the mechanisms through which popular control is retained over government are varied. A clear prerequisite for achieving the republican goals of influence is electoral institutions such as democratically elected representative legislatures.Footnote 48 However, while ‘essential in practice’, Pettit argues they ‘do not suffice on their own to maintain a suitable system of popular influence’.Footnote 49 This is because a singular institution cannot, by itself, secure the conditions of republican democracy, even where it is an electorally representative one. There must be, Pettit argues, alternative means of engagement by individuals with the system to allow them to test the laws or proposals produced for compliance with the value of equal access to influence and the value of equal status.Footnote 50 It is, he argues, required by the individualization of influence.Footnote 51 ‘To deny voters the right to invoke the value of equality in critique of a system that is chosen for its promise of delivering equality’, Pettit argues, ‘would be to fail to honour that very value’.Footnote 52 Allowing the testing of a system of egalitarian decision-making to ensure that it actually practises the equality it preaches requires a ‘recursive procedure’Footnote 53 which shapes not just the issues the system addresses, but also the very form of the system itself.
Can such an alternative institution be another electorally representative assembly such as the upper house in a bicameral legislature? In terms of the types of institutions that can effectively test decision-making procedures and lead the ‘recursive procedure’, to use the self-same decision-making procedure – majority vote in a legislature for example – to remedy any deficiencies in equality would be problematic, Pettit argues. Whereas majority rule in a representative assembly is an important feature of the republican account of democracy, he argues that ‘[t]o canonize majority rule – to give it sacred and unquestionable status – would be to deny the possibility of recursion and, inevitably, the possibility of reforming the system itself’.Footnote 54 To overcome this problem, Pettit sees ‘only one realistic possibility’, which is ‘a system of individualized contestation that parallels the collective challenge that elections make possible’ in which individuals gain an ‘impartial hearing’.Footnote 55 Pettit endorses the ‘traditional’ republican view that a ‘system of courts and other tribunals in which challenges to laws can be heard and decided’ in order to recognize the ‘constraints of the rule of law and due process that authorities ought to be held to account for breaching’ is a particularly prominent way of ensuring that the ‘channels of consultation and appeal between the public and the legislature’ are opened up.Footnote 56 Such a system, as a key feature of the recursive mechanism to test and ensure the egalitarian credentials of representative legislatures, requires an ‘overtly impartial system of adjudication and resolution’.Footnote 57 Such impartiality can only be achieved pursuant to a process of appointment ‘under constraints that give them general credibility; for establishing the independence of those authorities, and for providing plaintiffs with the opportunity to launch appeals against the decisions of those authorities themselves’.Footnote 58 This, for Pettit, is part and parcel of a mixed constitution and contestatory citizenship under an unconditioned and robust popular influence on government.
Mechanisms of popular direction
Whereas popular influence is important for Pettit’s republican conception of democracy, it is, by itself, insufficient. To ensure that freedom as non-domination is secured, it is necessary to also ensure that the government follows a popular direction. Footnote 59 That is, the government is responsive to the needs of the people when in power, and not just at the point of election. The popular direction necessary for legitimate republican government, Pettit argues, equates broadly with the ‘public good’ or the ‘public interest’. That is, the direction of governing power should aim at the purpose of peaceably living together as equals notwithstanding divergences in private interests and pursuits.Footnote 60
For Pettit, the popular direction of government is best secured through a series of fundamental norms which direct and constrain the actions of government. These norms are, in turn, guided by a ‘norm of norms’Footnote 61 in the form of the idea of public acceptability. Public acceptability, Pettit argues, constitutes a type of public reason in the, perhaps more familiar, Rawlsian sense.Footnote 62 The reasons that are relevant to the popular direction of government, in this vein, are those which all can regard as relevant: those which are acceptable to all. The norms of public acceptability diverge from Rawlsian public reasons, however, in the sense that they do not emerge out of some sort of ‘original position’. They develop, rather, through the ordinary practices of political decision-making: that is, in the formulation, deliberation, contestation and adoption of ordinary law and policy.Footnote 63 Over time, certain norms which have gained widespread acceptance will constitute ‘points of reference’ that are ‘manifestly’ relevant to public policy.Footnote 64 This will, in turn, give rise to specific norms of argumentation and deliberation as a ‘by-product’ of the iterative practice of providing publicly acceptable reasons. These will, over time, Pettit argues, develop into ‘society-wide’ shared norms.Footnote 65
Furthermore, as we would expect from norms which emerge in the practices of ordinary politics, they are not static and can evolve and change through changes in the membership of the political community as well as through the introduction of new facts or issues that feed into policy choices.Footnote 66 As Pettit argues, such norms:Footnote 67
will never constitute a closed set, fixed once and for all. They will be subject to constant development, as deliberative innovators manage to gain acceptance for novel sorts of argument, perhaps by extending the reach of recognized arguments to new domains, perhaps by coming up with new arguments that gain acceptance by others. Such innovations are likely to be triggered by changes in the dispositions of the existing membership and, of course, by changes of members that occur at any time and across different times. As new norms evolve in this way, others may decay and lose potential, say because they are not acceptable to some members in the changed society.
However, such change will be iterative and incremental and build upon the sediment of previous norms laid down according to the ‘norm of norms’ of public reason. Whereas the specific content of such norms will vary, some indicative features of such norms will include, Pettit argues, equality of influence, norms emanating from equal respect and norms prescribing freedom in a sphere of personal choice. These norms, moreover, will influence institutional arrangements to ensure their respect such as the impartiality of the judiciary and the separation of powers.Footnote 68
As such norms develop over time, and often off-stage, ‘silent as gravity’ when compared with the ‘fast democracy’ of electoral contestation, they operate to impose a ‘slow, long-haul direction on government’.Footnote 69 Significantly, then, these norms have a ‘constraining’ or ‘guiding’ effect on policy-making, which ensures that they are respected in whichever policy proposals are adopted by taking norm-incompatible policies and processes ‘off the table’.Footnote 70 This permits a wide berth for divergence and even adversarial and agonistic struggle on matters of policy. However, the norms of public acceptability constrain the policies and processes available to be adopted as decisions.Footnote 71
These norms feature as part of a ‘dual aspect of democracy’ encapsulating the ‘fast democracy’ of legislative electoral politics and the more incremental development of common democratic norms of acceptability. This dual model of democracy relies on a plurality of governing institutions in a ‘mixed constitution’, including courts, which lend coherence to governing practice, including through ensuring conformity to norms of public acceptability.Footnote 72
This model of popular influence and popular direction, then with its institutional prescriptions and its identification of key fundamental norms, is – Pettit concludes – thoroughly democratic. The people, Pettit argues, are:
present or represented at each of the mutually checking centres whose interaction within a mixed constitution generates the public laws and policies under which everyone lives. The river of their influence washes into every corner where decisions are taken in their name, and it has the effect of directing those decisions towards the satisfaction of popular policy-making norms.Footnote 73
Non-domination and the European Court of Human Rights
If we consider the role of the ECtHR through the lens of Pettit’s framework of republican democracy, we can gain clarity with respect to the ways in which it can be said to contribute to achieving the ideals of republican democracy both structurally and in its practices and doctrines. This, then, helps clarify reasons for thinking about the positive contribution it can make to democracy promotion within its signatory states and therefore enrich and enhance political debates surrounding the role of the Court in national democracy.
Perhaps most obviously, the ECtHR can be understood to feature as part of the more general ‘recursive’ procedure to test the equality of influence of law-making assemblies in Pettit’s account. However, it can also, it is argued, contribute to the development of norms of public acceptability in the ways in which it interprets the rights contained in the Convention.Footnote 74 In order to understand the credentials of the ECtHR as a feature of this republican account of democracy, it is necessary to examine the features of the ECtHR as one of the institutions of the republican ‘mixed constitution’, which speak to these elements of Pettit’s account. Here, we will focus on two particular features of the Court and its work within this broader enterprise: the Court’s role in securing the popular influence of national decision-making as an independent actor in this process; and its contribution to the securing of the popular direction of national decision-making through its interpretation and development of Europe-wide norms of public acceptability.
Ensuring popular influence: The ECtHR’s radical judicial independence
In terms of a role for the ECtHR in securing the popular influence of national decision-making on a republican democratic scheme, it is important that the appointment of the ECtHR judiciary takes place, in Pettit’s terms, ‘under constraints that give them general credibility for establishing [the Court’s] independence’Footnote 75. As we will argue, to the extent that the republican case relies on the independence of the judiciary as part of a ‘recursive’ procedure of republican democracy, the ECtHR can play a particularly significant role, in some cases more significant than national judiciaries, in the achievement of the popular influence of national decision-making, given its enhanced independence from national majoritarian institutions.Footnote 76 However, in order to understand this potential role for the ECtHR, we need to understand what independence means in this context. To do this, it is useful to contrast the model of independence envisaged by the account of republican democracy we are considering here with actual examples of a compromised, i.e. non-independent, judiciary. Unfortunately, we have a plethora of recent examples to choose from in thinking about indicators of non-independent courts drawn from recent illiberal populist constitutional reforms.Footnote 77
A particularly salient method of undermining the independence of a Court and therefore undermining its ability to contribute to the republican ideal of democracy is through outright manipulation and threats on individual judges. As Dixon and Landau note, this has been a successful, if somewhat extreme (and thankfully rare), method of compromising a court’s independence.Footnote 78 Beyond outright threats and intimidation, Dixon and Landau classify methods to undermine the independence of a court in terms of two broad categories: court ‘packing’ and court ‘curbing’.Footnote 79 Court packing can be understood in terms of the irregular reform of the judiciary with the aim of installing judges loyal to a particular political party or political agenda.Footnote 80 It can occur in a variety of different ways including the manipulation of various procedural rules around the appointment and dismissal of the judiciary as well as the operation of the court, including the retirement age of judges,Footnote 81 the promotion of judges,Footnote 82 the taking of annual leave,Footnote 83 the size of the court, rules on the appointmentFootnote 84 and impeachmentFootnote 85 of judges, rules around case distribution, case load and docket control,Footnote 86 the composition of individual judicial panels,Footnote 87 and rules around quorum and the types of majority necessary for a formal ruling.Footnote 88 Examples of court ‘curbing’ involve the undermining of the independence of courts through measures external to the composition of the court itself such as the manipulation of the funding of courts, jurisdiction-stripping through ‘ouster clauses’,Footnote 89 restricting court access,Footnote 90 the passing of immunity rules, manipulating the publication of judgementsFootnote 91 or failure to respect court rulings.
In thinking about the role of the ECtHR as an independent agent to engage in the contestation required of our republican account of democracy, then, we have some general indicators as to what independence requires on this metric. In its easy formulation, independence requires a not-packed and not-curbed court along the lines summarized above. In this respect, we can point to two general features of the ECtHR system which highlight its robust structural independence: its international nature founded in an international treaty – the European Convention on Human Rights – and its pluralistic appointments process and independent governance, making the undermining of its independence along the lines of court ‘packing’ and court ‘curbing’ highly, if not, as we shall see, completely, unlikely.
In terms of judicial appointments, the fact that the Court is made up of judges from each of the Contracting Parties under Article 20 ECHR makes the kind of manipulation of judicial appointments documented by Dixon and Landau among others quite difficult. Even if, as has been well documented, individual member states can ‘game’ the formal rules of appointment by designing the list of three candidates required in Art. 22(2) ECHR in such a way that makes the appointment of their preferred candidate virtually inevitable,Footnote 92 and the fact that the stages of the appointments process are relatively cursory,Footnote 93 the Court remains a very difficult one to pack. A single rogue judge, doing the bidding of its national paymaster, is unlikely to compromise the overall independence of the Court in a significant way.Footnote 94 What would be required to really compromise the independence of the Court in the manner outlined above would be an international coalition of states, hell-bent on undermining the independence of the Court, co-ordinating the manipulation of the judicial appointment process by promoting candidates who will faithfully carry out the ideology of whatever coalition is built. Whereas such supranational illiberal coalitions are not impossible,Footnote 95 it is much more difficult to achieve than the kind of domestic coalition necessary to pack a domestic judiciary in a national legislature with strong party discipline.Footnote 96 In respect of judicial appointments, then, given its international nature, the ECtHR is arguably more robustly independent of national legislatures than national courts in a way which can more effectively contribute to securing the popular influence of national decision-making on our republican scheme.
With respect to the terms of employment of ECHR judges, the fact that they are independently remunerated from the Council of Europe budget and not by national authorities (or at least not directly)Footnote 97 makes it harder for individual national governments to manipulate their terms of employment.Footnote 98 Similarly, Art. 23 ECHR takes the question of dismissal out of the hands of national governments and places it squarely with ECHR judges themselves, requiring a two thirds majority of judges to dismiss an individual judge for failing to fulfil the conditions required of ECHR judges in Art. 21 ECHR. Questions of retirement are also regulated by the Convention under Art. 23 ECHR. Furthermore, the fact that the Court can adopt its own rules of procedure under Articles 25–29 ECHR, including the management of case distribution and configuration of the bench for individual cases, provides a large degree of independence from interference by national governments.Footnote 99
A potential disadvantage of the Court being an international court from the viewpoint of judicial impartiality,Footnote 100 in contrast to national courts, is the threat of a nationalist impulse interfering in judicial decision-making when a judge hears a case from their appointing state. Notwithstanding the requirements in Art. 21 ECHR that judges sit on the Court in an individual capacity, and the fact that they are not to engage in activity when in office which might compromise their independence and impartiality,Footnote 101 it is possible that when their state is in the dock, the temptation by a national judge to soft-pedal scrutiny or critique, or excoriate decisions against their home state in a dissenting judgement, can be very difficult to resist. This is clearly a risk that arguably affects national courts less.Footnote 102 However, studies have shown that this potentially major factor compromising the impartiality of an international court like the ECtHR is not generally borne out in practice.Footnote 103 One area where national bias could have emerged was with regard to the tenure of the judiciary. Until the entry into force of Protocol 14 ECHR in 2010, the tenure of judges was renewable once. There was some evidence that judges would ‘play to the national gallery’ at times in order to secure re-election to the Court.Footnote 104 However, since 2010, the Convention provides that judges are appointed for one term only of nine years.Footnote 105
As such, then, the independence of the Court in terms of court ‘packing’ is reasonably robust, and therefore, it arguably constitutes an important site of contestation of national law and policy on a republican schema to ensure that the equality necessary for the popular influence of national democracy is borne out in practice.
With regard to court curbing, there are two areas that can potentially compromise the independence of the Court and affect its role in enhancing the popular direction of national decision-making: amendments to the ECHR, which could be understood as a court ‘curbing’ move, and actions by domestic political actors hostile to the Court, often supported by a hostile national press. With regard to amendments to the ECHR which could be interpreted as a court curbing, as opposed to a court packing, move, the 2012 Brighton Declaration, Madsen notes, presented the first ever reform to the Court aimed at rebalancing power away from the Court towards national authorities in the ECHR’s history.Footnote 106 It amended the preamble of the Convention to include a reference to ‘subsidiarity’ and codified the idea of the ‘margin of appreciation’ in the Convention for the first time, emphasizing the primary responsibility of signatory states to secure the rights and freedoms in the Convention.
With regard to actions by national political actors, whereas instances of outright intimidation against the ECHR judiciary are rare,Footnote 107 a significant feature of potential court curbing in the ECtHR context is public hostility from national authorities and press.Footnote 108 Political hostility to the Court can take a variety of forms, usually expressed in severely critical statements of individual judgements such as those with which this article opened involving complaints about its ‘foreignness’, its ‘sovereignty eroding’ and ‘democracy undermining’ capacity as well as threats to withdraw from the entire Convention system.Footnote 109 This can be contrasted with substantive critique of the Court’s work in the form of thoughtful, evidence-based, well-informed and well-argued good-faith criticisms of individual judgements of the Court based on relevant and appropriate reasons, which is the stuff of much Court commentary in academic journals. Rather, the type of political hostility we are concerned with here, as noted above, constitutes a direct attack on the authority of the Court itself.Footnote 110 As most citizens rely on elites for knowledge of international organizations given their generally low political salience, the effect of hostile rhetoric regarding the Court from the top of government can be very effective in mobilizing public opinion against the Court and therefore further undermine its independence and legitimacy.Footnote 111 One of the ways in which hostile political rhetoric on the independence of the Court can impact upon its work can involve a reduction in the scrutiny of national law and policy for rights violations by the Court and/or a reduction in the number of rights violations determined by the Court, thereby potentially undermining the Court’s contribution to democracy promotion as well as rights protection.Footnote 112 There is some evidence to suggest that the Court has stepped down its scrutiny of national law and policy in respect of some countries in the light of these attacks.Footnote 113 For example, after suffering hostile attacks from certain quarters in the UK, the Court in a decision involving the UK in 2017 determined that a previous ruling from the UK Supreme Court, which the Court itself had considered incompatible with the Convention, was, in hindsight, compatible with the Convention.Footnote 114 This decision prompted a judge of the Court, Judge Albuquerque, to warn in a dissenting judgement that the decision, which he argued was part of a growing trend, would undermine the authority of the Court.Footnote 115 In another example, in 2024, in a seeming reversal of its own case law, and in response to divergent decisions by the UK Supreme Court on the issue, the Court found no violation of the presumption of innocence under Article 6 for lack of payment of compensation to prisoners whose conviction was found to be unsafe.Footnote 116 The Court’s recent volte face on UK legislation on prisoner voting is another salient example.Footnote 117
Summarizing the role of the ECtHR in a broader ‘recursive process’ according to a republican framework of democracy, we can conclude for current purposes that the Court enjoys a robust independence from the perspective of court ‘packing’. With respect to court ‘curbing’, the picture is more mixed. We have seen how the amendments introduced by Protocol 15 could be interpreted as a potentially ‘curbing’ move in that its aim was to move power away from the court for the first time; however, the extent to which they do constitute a curbing move such as to compromise the Court’s independence is unclear. For one thing, the amendments to the preamble are wholly in line with the Court’s own case law on its role within the Convention system, as a subsidiary organ to signatory states which are charged, in the first instance, with the protection of the rights contained in the Convention and the reference to the margin of appreciation merely codifies the long-standing practice of the Court. This is supported by the fact that early analyses of the entry into force of Protocol 15 ECHR which followed the Brighton Declaration suggest that it is not having a significant impact on the decisions of the Court.Footnote 118
More concerning, from a republican democratic perspective, is the effect of hostile criticism of the Court, which seems to have resulted in a more lax scrutiny by the Court of certain signatory states.Footnote 119 Of course, the Court must, even in its radical independence, remain responsive to the views of its key constituents – the signatory states of the Convention and their populations – and this responsiveness must feature as part of the republican account defended here, which we could understand, more benignly, in terms of ‘dialogue’.Footnote 120 However, there is an irony in the fact that in trying to appease national governments on putatively democratic grounds, the Court could end up compromising its own democratic legitimacy from a republican perspective.
The emergence of norms of popular direction: The Court’s evolutionary interpretation of convention rights
In terms of the popular direction of national decision-making, the rights contained in the Convention, combined with the dynamic interpretation of those rights through the Court’s ‘living instrument’ doctrine, can be understood to contribute to the development of common norms of public acceptability of the composite system of human rights and democracy involving the ECHR.
With regard to the specific norms of public acceptability, the rights contained in the Convention are exemplars of the public acceptability norms emphasized by Pettit in his account of republican democracy. As noted above, for Pettit, the types of norms in question for the popular direction of government are those such as equality of influence, norms emanating from equal respect and norms prescribing freedom in a sphere of personal choice.Footnote 121 We can assume, therefore, that the rights contained in the Convention, from prohibitions on torture to due process and privacy rights, to freedoms of expression and association, are compatible with norms of public acceptability in the abstract on a republican scheme.Footnote 122 The fact that the states within the ECHR’s composite system voluntarily signed up to protect the rights it contains further supports the characterization of ECHR rights as norms of public acceptability for the purposes of our republican account of democracy.Footnote 123
Furthermore, with regard to the idea that such norms are shaped and evolve over time by ‘real life’ practice and contestation, the fact that the Court’s characterization of the Convention as a ‘living instrument’Footnote 124 warranting an ‘evolutionary approach’ to its interpretation captures this dynamic and iterative development of these norms of public acceptability. The idea of the Convention as a ‘living instrument’ is a well-established approach taken by the Court whereby the text, concepts and values of the Convention are approached in the context of ‘present-day conditions’Footnote 125 and not, say, the moral and political mores of the Roman Empire, medieval Christendom or even the Cold War politics within which the Convention itself emerged.Footnote 126 As such, the Court, in interpreting the rights contained in the Convention, cannot, in the Court’s own words, ‘but be influenced by the developments and commonly accepted standards’Footnote 127 in the state parties to the Convention. The evolutionary interpretation of the Convention in this regard is made particularly clear when the Court changes its view on the protection afforded by the Convention in the light of the changing social morals of its signatory states. There are many examples which could be pointed to illustrate this, but one, particularly clear, example is with regard to the extent to which the right to privacy contained in Article 8 ECHR protected gender identity, and in particular the right of transgender people to have their gender formally recognized in official documentation where it does not coincide with their biological gender at birth. Thus, for example, in Rees v. UK, a case decided in 1986, the Court found that the right to privacy did not create an obligation on states to alter the register of births or issue birth certificates based on what it called the ‘psychological gender’ of individuals noting that ‘there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage’,Footnote 128 thereby affording states a wide margin of appreciation in terms of the extent of their recognition of gender identity in public documents. However, by 2002, in another case involving the UK, the Court noted ‘clear and uncontested evidence of a continuing international trend in favour not only of increasing social acceptance of transexuals but of legal recognition of the new sexual identity of post-operative transexuals’,Footnote 129 arguing that the scientific evidence relied on in earlier cases regarding the biological aspect of gender identity should no longer be decisive in the legal recognition of transexual people.Footnote 130 As such, the Court found that Article 8 did protect the gender identity of transexual people, including the right to amend public documents to better reflect their gender identity based on the evolving standards of the recognition of gender identity in the social norms of Convention states.
The point here is not to interrogate the complexities of the issue of gender recognition, nor to engage in the extensive, at times divisive, contemporary debates on the issue. Rather, this brief example illustrates quite clearly the ways in which the Court’s interpretation of the Convention tracks Pettit’s account of the evolutionary nature of the application of norms of public acceptability. In interpreting the rights contained in the Convention, the Court’s reliance on the developing norms, standards and morals of national democracies, particularly through the idea of a ‘European Consensus’ on particular moral issues,Footnote 131 provides a clear example or the incremental development of ‘commonly avowable norms’Footnote 132 of public acceptability which help secure the popular direction of national decision-making in a way which reflects changes in those norms through practice and changes in membership of the relevant political community.Footnote 133 As noted above, Pettit argues that innovations in the norms of public acceptability will be ‘triggered by changes in the dispositions of the existing membership and […] changes of members that occur at any time and across different times’.Footnote 134 This is precisely the ethos that the ECtHR has taken in the development of its evolutionary approach, aimed at achieving the ‘increasingly high standards required in the area of the protection of human rights and fundamental liberties [in democratic societies]’.Footnote 135
Thus, we can understand the rights contained in the Convention, as well as the Court’s interpretation of them, as broadly conforming to Pettit’s account of the norms of public acceptability which help secure the popular direction of national decision-making by providing arguments for taking certain policy options – Convention rights violations – ‘off the table’. Crucially, for Pettit’s conception of popular direction, individual actors – and, perhaps most importantly, the Convention’s signatory states – do not necessarily need to agree with the decision in terms of its substantive content; they may have alternative views and alternative preferred outcomes on a particular question of what popular direction requires. However, what they must be able to do is to understand a particular decision as in principle publicly acceptable to all, as an acceptable decision or outcome based on the ideal of the equality of citizens and a desire to avoid the types of domination upon which republican freedom is trained. As Hickey emphasizes, it is precisely because we are likely to disagree on substantive outcomes that Pettit emphasizes the idea of the justification of a particular decision or outcome based on the idea of public acceptability to all,Footnote 136 as part of a general recursive procedure involving both national institutions – both democratically representative and judicial – and the ECtHR to contest and secure the popular direction of government for the citizens of ECHR signatory states. On this view, disagreement with the Court’s judgements can be made acknowledging that such justifications for the decision exist, and without attacking the very authority of the Court, its ‘foreignness’ or assuming that it has no democratic role whatsoever.
As such, the ECtHR’s interpretive devices of the evolutionary approach and European consensus with regard to the interpretation of rights in the Convention can be understood as shaping Convention-wide ‘commonly avowable norms’ of popular direction in Convention states.Footnote 137
Conclusion
Democracy has been the battleground of much criticism of the ECtHR over the years, and particularly in the past decade or so, where criticism of international law and international institutions has become increasingly commonplace with the rise in national populism.Footnote 138 However, the ambivalence which surrounds our understandings of the ECtHR’s role in national democracy has contributed to a more destructive contestation involving the Court, where its very authority is challenged, risking the values and rights protected by the Convention and potentially the strength of national democracies. In order to provide for a more fruitful exploitation of this ambivalence, one which proceeds in a spirit of pluralist virtues and democratic contestation, we have here tried to contribute to enriching the ‘radically inconclusive’Footnote 139 and ‘incomplete’Footnote 140 political debate on the compatibility of democracy and international human rights through an examination of the role of the ECHR system in a republican scheme of democracy by highlighting features of the Court and its work which can be understood to potentially have a democracy-enhancing role, particularly in its structural independence from national politics and its evolutionary interpretation of Convention rights based on the republican democratic theory of Phillip Pettit. Pettit’s democratic theory is particularly suited to the Convention system given its institutional focus and the fact that it relies on a composite set of institutions – which can be both national and internationalFootnote 141 – to achieve the republican ideals of freedom as non-domination. This is a particularly useful exercise, we argue, in an era of mounting populist challenges to international courts as well as to core constitutional democratic norms.
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