Afterword: What Role for the European Court of Human Rights? 

Dr. Jens T. Theilen 

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Between the 12th and the 22nd of December, Strasbourg Observers is hosted a blog symposium entitled ‘The Role of the European Court of Human Rights: Progressive, Conservative, or Both?‘ This is the concluding post in the symposium. The introduction can be found here. In addition to this post from Jens T. Theilan, the symposium includes contributions from Corina Heri, Vera Wriendt, Esra Demir-Gürsel, Harriet Ní Chinnéide and Tobias Mortier, and Betül Durmuş.

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How do we see the European Court of Human Rights (ECtHR)? This symposium shows that the way we answer this question matters not just in terms of the answers we give but also in terms of how we frame the debate. For example, in debating whether the Court is or should be activist or restrained, we are accepting the frame of judicial activism versus self-restraint as the starting point. The symposium proposes a reframing: Approaching the Court instead in terms of whether and how it is progressive or conservative. As the introduction acknowledges, much then depends on how these terms are understood. In this afterword, I approach these questions by thinking with the contributions to the symposium and considering the question of progressiveness or conservatism in relation to the role of the ECtHR. I do so in a threefold manner, although the three elements are interlinked: first, the Court’s role vis-à-vis the states parties, then its role in scholarship, and finally its role in relation to other human rights regimes. 

The Court’s role vis-à-vis the states parties 

When discussing the role of the Court, most scholars and practitioners primarily have its relation to the states parties in mind. As Vera Wriedt’s contribution reminds us by analysing differences across regional human rights treaties, it is states that bring human rights courts and the texts that they interpret into being. Debates are never-ending about what this means for the role that human rights courts – and the ECtHR specifically – should take vis-à-vis the states parties. These debates can be framed as questions of strategy or principle, but in times of perceived crisis it is increasingly the prior that takes precedence. To ensure the continued cooperation of the states parties, the ECtHR must strategically take their policies and preferences into account to ensure its legitimacy – or so the dominant understanding goes. 

Concerns about the ECtHR’s legitimacy in the eyes of states, already widespread before, are further intensified in the current juncture. Several contributions to the symposium (here and here) discuss statements by groups of states parties geared at reining in the ECtHR: the “letter of nine” of May 2025 and the recent statement by an even larger group of states, both driven by barely veiled anti-migrant racism. The racism itself is not new, but it is notable how openly these statements deploy anti-migrant tropes and claim to be securing the lives of some at the expense of others. In the context of anti-Palestinian violence, Nahed Samour recently noted a pronounced “shamelessness around devaluation of life”; a similar shamelessness is on display here. 

These developments are obviously a cause for concern – not only or even primarily in relation to the ECtHR, but more broadly. Insofar as their effect on the ECtHR is at issue, I believe we should be wary not only of the shifts in the Court’s role that they might induce, but also of how they frame its current role. The statements paint a picture of the Court as overreaching and in opposition to the interests of the states parties; from the perspective of the states, at least in matters of migration, it is “overly progressive”.  

As Harriet Ní Chinnéide and Tobias Mortier remind us in their contribution, progressiveness is in the eye of the beholder. Shifting the angle of analysis slightly, I would add: Some beholders’ vision carries more power than others. Through the statements challenging the ECtHR, the states are imposing their framing on its migration-related case-law. The statements are dangerous not only for their politics, but also for the picture they paint of the Court as it stands. Contrary to what the states imply, the ECtHR’s migration-related case-law consistently legitimises and thereby strengthens states’ border regimes (see in more detail here, and further critiques e.g. here and here). Analysis of the role it plays vis-à-vis the states parties in this regard is distorted if the states’ statements and their framing of the Court as “overly progressive” are taken as a starting point. 

The Court’s role in scholarship  

Attempts at human rights regression by the states parties such as the statements just mentioned are regularly met with vehement opposition from scholars. Ironically, however, the dominant position in scholarship actually mirrors that of the states. Here, too, the assumption is that the Court is essentially progressive; disagreement arises only regarding the prefix “overly”. For example, a response letter by the Agora Group urged the Council of Europe to ensure that the European system of human rights “remains a beacon of hope for all”. Rather than settle for the grandiose “all”, one might wonder: hope for whom? Or, as Corina Heri puts it in her contribution: progress for whom? 

There are different levels at play in scholarly framings of the role of the Court and its assumed progressiveness. On one level, scholars routinely criticise the Court’s judgments, as Ní Chinnéide and Mortier point out; in that sense, they fault it for not being progressive enough. At the same time, such criticisms are often (though not inevitably) based on the assumption that the Court can and might “do more”: at a deeper level, in other words, they assume that the Court is ultimately a progressive institution and plays a progressive role. 

Differently put: despite repeated scholarly criticism, there is an astonishing lack of structural critique of the ECtHR. The understanding of “progressive” and “conservative” that Esra Demir-Gürsel develops in her contribution to the symposium is therefore a vital counterpoint. She frames the Court as a conservative actor devoted to “preserving the existing order with its established power structures” and rightly argues that this holds true even in cases pertaining to authoritarianism and totalitarianism – that is, precisely those situations which, according to its own narrative and identity, the Council of Europe was created to prevent. If the ECtHR is not even willing to intervene in these cases, how can we expect it to intervene more than superficially elsewhere? 

We must face up to the reality, in other words, that the Court simply is not a progressive institution. A large part of the “essential functions that the Court performs”, as Heri puts it, is to stabilise existing power relations – which will often involve precisely the kind of deference that Heri’s contribution identifies in the climate cases. For example, coloniality and racism have been built into the European system of human rights from its very inception. It is no surprise that, as Heri notes, they resurface in the climate cases (as well as in a range of other issues across the Court’s case-law). These are not aberrations from an otherwise progressive mission that can be rectified by minor shifts in the case-law; it is the system working the way it was built to. 

The Court’s role in relation to other human rights regimes

There is another layer to the remarkably tenacious framing of the Court as progressive, which is a comparative one. The European system of human rights is often imagined as the “most advanced” human rights regime; indeed, the ECtHR itself uses this framing (for a critique, see here and more generally here). Much of the scholarly discussions around the different human rights regimes follow a similar logic, with Europe being imagined as an example for other regions to merely emulate. In this sense, as Betül Durmuş notes in this symposium, space and time are linked: progress is imagined as located in Europe. 

Deployed differently, however, comparison can also serve as a way of stepping back and avoiding the dominant framing of the ECtHR as progressive. Wriedt’s analysis in this symposium, for example, demonstrates the conservatism of the European system of human rights when compared to the Inter-American and African systems, using the right to nationality as an example. Durmuş’s contribution, meanwhile, goes beyond comparison and foregrounds interaction between human rights regimes, specifically the ECtHR’s references to global human rights treaty bodies. Here, too, the picture that emerges empirically is hardly that of the ECtHR at the forefront of change. 

Building on these contributions, we might also consider situating the ECtHR not only in relation to other courts or quasi-judicial bodies, but in relation to the practice, debates, and critique of human rights more broadly. Perhaps the prominent role that the Court plays within the European system of human rights is part of the reason why structural critique is so rare in that context – in stark contrast to critiques of human rights in general, which are much more established (see e.g., among many others, here, here, here, here, and here; for an introductory overview, see here at § 21.8). The politics of critique tend to be grounded in social movements. They become difficult to even imagine when a judicial institution is as central to scholarship as it is in the case of European human rights. Political attachment to the ECtHR then takes the place of substantive politics and coalition-building. 

This might explain why so many scholars think of themselves as “friends of the court”, as the introduction to the symposium mentions. I would suggest that this is a heightened form of what Marina Veličković has described more broadly as political attachment to the discipline (“international-law-as-politics” or, in this case, human-rights-as-politics) in lieu of, for example, feminist or anti-racist politics as a starting point. It is heightened in the sense that allegiance is pledged not only to a discipline at large, but to the ECtHR as a specific institution. Assessments of the ECtHR’s conservatism or progressiveness, when made in light of such attachments, are bound to be oddly slanted. 

Outlook 

It should be abundantly clear at this point that, whatever else it is, the role of the ECtHR is political: even for a legal institution, this is unavoidable. The same goes for assessments of its progressiveness or conservatism, as well as the terms within which we conduct such debates. Different aspects may be emphasised or de-emphasised depending on the framing. As Demir-Gürsel asks in the introduction to the symposium, “what do states’ accusations that the Court is overstepping its mandate lead us to focus on, and what might they cause us to overlook in the bigger picture?”   

In times of rising authoritarianism and fascism, there is a particular urgency to our politics – and to not overlooking the bigger picture. It is important, for example, to oppose attempts at rollback of even meagre protections, as in the “letter of nine” and the recent statement by some states parties. But it is also important to analyse how we got to this point, for example how state racism and other repressive policies within liberal-democratic institutions have enabled the far-right resurgence. The ECtHR’s role, when viewed within this bigger picture, is significantly less progressive than commonly assumed. This symposium shows, in various ways, its more ambiguous role. I hope it will contribute to shifting the terms of debate.