Growing Authoritarianism is a Pressing Challenge to Human Rights Regimes

The authoritarian challenge to human rights regimes has become more pressing in recent years. The rise in the number of authoritarian states, also in Europe; the shrinking space for legal mobilization globally; the rising and increasingly assertive state contestations to human rights courts; and regional human rights courts’ increasing exercise of self-restraint point to the need to adjust our conceptual and theoretical frameworks on the effectiveness of human rights law.

Conventional theories, mostly based on the case of the European Court of Human Rights, have equated the effectiveness of regional courts with state compliance with court judgments. Yet, compliance as a basic notion seems insufficient and we need an extended set of criteria of effectiveness that is also appropriate for non-democratic contexts. Emerging scholarship on the Global South suggests that the experiences of the inter-American Court of Human Rights and the African Court of Human and Peoples’ Rights are underexplored sources to enhance our understanding of effectiveness in illiberal contexts. They harbour a great potential for drawing lessons for the European system, which has increasingly been challenged by illiberal regimes.

Empirically-based theoretical framework

The ERC project will fund Dilek Kurban and her team to fill a gap in scholarship by developing an empirically-grounded theory on the effectiveness of regional human rights regimes in hard cases.

Based on an inter-disciplinary and multi-method comparative study of the European, inter-American and African human rights regimes, the team will address the overarching question:

• What are the historical, institutional, and legal-jurisprudential conditions for the effectiveness of regional human rights regimes in non-democratic contexts?

To answer this question, Kurban and her team will go beyond the European regime, beyond human rights courts, and beyond states by studying the responses of the judicial (courts), quasi-judicial (commissions), and political (inter-governmental bodies) organs of the European, inter-American and African regimes to the laws and actions of the states on the one hand and the legal mobilization of domestic human rights lawyers on the other. In assessing effectiveness, the team will start from a working conceptualization that human rights regimes can be effective in non-democratic contexts only if they: 1) ensure the execution of court judgments (compliance); 2) make full use of all powers, tools and resources available to them for political, judicial and quasi-judicial oversight (exhaustiveness); and 3) empower domestic advocates in their social struggles by being and remaining open to their legal mobilization (responsiveness).

Methodologically, the project will combine an historical institutional analysis of the emergence and evolution of the three regimes with a socio-legal study of whether and how the judicial, quasi-judicial and political organs have enforced their founding norms vis-à-vis non-democratic regimes engaged in legal repression, gross violations, and systemic attacks on the rule of law. Towards that end, the team will conduct archival research, doctrinal analysis and interviews.

Funded by a European Research Council (ERC) Starting Grant titled “Beyond Compliance: Rethinking the Effectiveness of Regional Human Rights Regimes”.