Two-level politics and the backlash against international courts: Evidence from the politicisation of the European court of human rights

Introduction

Are international institutions more prone to face backlash politics than domestic ones? Are they, because of their legal–political constructions as add-ons to sovereign states, inherently more at risk for falling victim to domestic politics when perceived as being out of line? And, are they particularly convenient and easy targets for domestic political agendas simply because they come with a relative low political cost to target international institutions? Using the case of the recent contestation of the European Court of Human Rights (ECtHR or Court), the article explores whether international institutions are more susceptible to face backlash politics due to the dual nature of international politics. It examines how international politics, inherently marked by two-level diplomacy (Putnam, 1988), has a potential bias towards domestic political agendas. In extraordinary cases, this bias comes out and notably when explicit national political preferences collide with international institutions and their practices. Moreover, when there is a clear preference for national political outcomes that clashes with developments at international institutions, international institutions might fall victim to aggressive political campaigns that are oriented mainly towards domestic audiences but are targeting international institutions and their authority.

To analyse this puzzle, the article draws on an empirical study of the recent ‘backlash’ against the ECtHR in the context of the Danish presidency of the Committee of Ministers of the Council of Europe (2017–2018), the organisation under whose auspices the ECtHR operates. The article shows how the origins of the Danish critique came from domestic politics and its aim was mainly Danish politics and particularly the right-wing party and constituency that provided the necessary parliamentarian support for the then minority government. The article, moreover, shows how the game changed once it moved into the realm of diplomacy and intergovernmental conferencing. The result was that both the demands and the outcome were moderated. Hence, although the Danish government had taken strong positions at home and initially also at the European level, they eventually settled for an outcome that did not fundamentally change the ECtHR. Rather, the end result, the Copenhagen Declaration of April 2018, was both generally supportive of the ECtHR and codified elements developed by the Court itself. The Danish government, nevertheless, prided itself for its achievement, suggesting to their domestic audiences that they had done everything to deliver on their declared showdown with the Court, but Europe was not quite ready to follow them in full. Overall, they maintained that they were very satisfied with the resulting Declaration.

To explain this outcome, the article argues that it is necessary to distinguish between two forms of backlash politics. The first is reformist in a more limited sense and although it buys into the jargon and logic of backlash, it does so mostly at a rhetorical level. The second goes beyond this and aims at effectively changing the rules of the game – what the editors of this special issue term ‘institutional reshaping’ (Alter and Zürn, 2020). While the former has more limited goals, and thus can be satisfied, the latter is more status-driven and marked by mutating goals, implying that its demands are in flux and will not be satisfied until the targeted institution is greatly changed or has lost its authority all together. And even that might still not be enough. The article concludes that the Danish government’s critique of the ECtHR falls into the first category. Drawing on existing work on contestation of international courts (Madsen et al., 2018), it concludes that the Danish government’s action was an instance of ‘pushback’ within existing rules rather than a ‘backlash’ seeking to fundamentally changing the rules and the authority of the Court. Even if the rhetoric was at times extreme, it followed the logic of two-level games and in that sense more ordinary politics.

These findings both build on and nuance the theoretical framing put forward in this issue by Karen Alter and Michael Zürn. Alter and Zürn argue that backlash politics is a distinct form of politics marked by three key characteristics: (1) it involves extraordinary political movements that challenge dominant scripts, (2) it seeks retrograde objectives and (3) it enters (and possibly alters) public discourse. This composite definition is aimed at covering a vast array of extraordinary retrograde politics entering public discourse (Alter and Zürn, 2020). Backlash against international courts seems an obvious object of inquiry using this basic definition. International institutions are integral parts of a dominant liberal script of international legal orders, which occasionally clashes with more souveranist or nationalist sentiments seeking to turn back the clock and dismantle those institutions or severely limit their reach. To differentiate backlash politics as a distinct form of politics, Alter and Zürn, however, add that backlash politics is most often accompanied by a set of additional features: (1) an emotive element, often evoking some kind of nostalgia, (2) an element of taboo-breaking in terms of deploying irregular strategies and (3) objectives that seek institutional reshaping, typically pursuing changes in the procedures and institutions of decision-making. These additional analytical markers are central for distinguishing backlash politics from other forms of contentious politics (Tarrow, 2011). In the area of international courts, where concern over national identity and sovereignty are more or less permanent features, some tension over whether international courts trespass on central domains of national society is to be expected. Building on these findings, the article argues that the third element, institutional reshaping, is crucial for distinguishing mere pushback from actual backlash against international institutions and courts.

We can observe across many instances of contestation of international courts that backlash politics involves authority challenges (Madsen et al., 2018; Sandholtz et al., 2018; Soley and Steininger, 2018). More precisely, what these studies suggest is that what makes contestation become backlash politics is when the normal rules of the game are no longer respected and the critique is no longer seeking ordinary policy change within the existing playing field. The critique seeks instead to change or challenge the rules of the game, and as a consequence the authority of international institutions. Thus challenging the dominant script, this transforms more ordinary engagements with international institutions into extraordinary critique of those institutions. The moment in which the institutional boundaries and authority of the institution is being targeted – the jurisdiction, competences, ways of decision-making, even the continuous existence of the institution – normal political engagements are often replaced with a more extreme rhetoric and game plan (Madsen et al., 2018). The retrograde objectives of such movements also become very visible at this point, as they are precisely targeting the underlying consensus on how things are being done (see also Landwehr, 2020). The goal is to revert to a prior condition, often as a reaction to a concrete action taken by the international institution, although backlash might also be prompted by simmering tensions. Different from these extraordinary politics are instances of ‘pushback’, which can be defined as contestation and critique that are not authority challenges as such, but critique played out within the boundaries of the existing rules which can still be loud and even shrill (Madsen et al., 2018). What is suggested, however, is that there is a need to carefully distinguish between these two forms of contestation – between backlash and pushback – in order to understand the more limited goals of the former and the mutuating goals of the latter as well as its linkage to status-driven agendas as opposed to the former’s more ordinary political agendas.

In what follows, the backlash theoretical framework and its accompanying features are examined in the context of the article’s general puzzle of the particular vulnerability of international institutions with regard to backlash politics. The article first briefly outlines three typical situations of backlash against international courts and institutions. It then turns to an empirical analysis of the recent contestation of the ECtHR using the framework theory developed by Alter and Zürn. The article concludes with a discussion of how the national political component of two-level international politics affects and possibly exacerbates backlash against international institutions.

Causes of national backlash against international institutions

Backlash against international institutions can be triggered by a number of different causes, from instantaneous developments at international institutions to structural cleavages that suddenly inspire retrograde movements entering mainstream political discourse. A recent example of both structural and instantaneous causes is the virulent denunciation of the International Criminal Court (ICC) by US national security adviser John Bolton. Bolton was openly seeking to reverse the ICC’s attempt at investigating war crimes in Afghanistan, a move that could potentially involve investigation of US troops’ conduct (Bowcott et al., 2018). From the perspective of the Trump administration, essential national security interests were at stake. Hence, the ICC’s plans needed to be forcefully reversed in order to secure that prosecution of possible illegal conduct in the theatre of war remained within the ambit of national law and politics, a position also reflecting issues related to national identity and sovereignty.

When perceived fundamental national interests are at stake, domestic political agendas are likely to prevail and trump existing commitments to international agendas and institutions. This is notably the case if those perceived interests are a part of domestic feuds over identity and sovereignty. This will be the case not only when international developments clash with national security interests as in the mentioned example. It is also the case when international organisations become involved in what one scholar, Ran Hirschl (2008: 94), has termed as mega-politics: ‘matters of outright and utmost political significance that often define and divide whole polities’. Examples of this include immigration politics, in which national cleavages are strong in many countries and international institutions might enter a hornet’s nest of emotions related to national cultural identity when expanding their reach into these issues. An illustrative example is the recent United Nations Global Compact for Safe, Orderly and Regular Migration (GCM) which, despite being a soft law intergovernmental agreement (Gammeltoft-Hansen et al., 2017), stirred great controversy over its alleged intrusions into fundamental issues of state sovereignty.

Backlash against international institutions is, however, not limited to political questions dividing and opposing entire societies or national security issues. The dual nature of international politics might also trigger backlash against international institutions with regard to much less high political questions. When, for example, domestic political leaders fear that they are losing popular support due to practices of international institutions with which they normally associate, they might also launch severe critique of international institutions. The international institution is then caught up in a mainly domestic game of politics, in which it is being stigmatised as the cause of an unwelcome development that has to be reversed. A case in point, which we will return to below, is the showdown against the ECtHR orchestrated by the then Danish government when presiding over the Committee of Ministers of the Council of Europe (CoE) in 2017–2018. The Danish campaign against the Court was prompted by domestic political issues related predominantly to immigration control, which quickly turned into an intense political debate which set aim at the competence of the European Court in the area and the basic soundness of its judgements (Hartmann, 2017). Responding to immigration issues was seen as a matter of survival for the Danish government if it was to continue as a minority government with parliamentarian support from the far-right. Thus, domestic political feuds and tactics spilled over into European politics, resulting in scolding criticism of the ECtHR.

These different scenarios of backlash have in common that domestic political interests collide with developments at international institutions and trigger an outsized critique that seeks to reverse practices of an international institution. In all cases, domestic interests take precedence and the authority of the international institution comes into question. Although these forms of criticism are most often visible as disagreements over specific issues, they are, however, often also reflective of broader structural cleavages which fuel these processes when they are being pushed into public discourse (Madsen et al., 2018). But this is not a one-way street. Backlash politics against international institutions might have all the characteristics identified by Alter and Zürn and thus perform as a distinct form of politics, but when they set aim at international institutions, they for the most part enter more ordinary international political processes marked by diplomacy, other member states and a fairly high-level involvement of civil society organisations. Moreover, the domestic interests being pursued – sovereignty, national identity or more specific issues such as climate change and trade – will have to weigh against other interests, including the cosmopolitan interests of other member states, diplomats and civil society (Adler-Nissen, 2009). In other words, backlash politics might have a distinct style and form as suggested by Alter and Zürn, but its particular political repertoire (Tilly, 2008) is potentially countered and transformed by more ordinary means of international politics. International institutions might be easy targets of domestic politics, but global scripts and their underlying consensus are not that easily reversed. Moreover, the domestic issues fuelling the backlashers in the first place are generally not as salient at the international level. In that sense, the effect of two-level games will lead to moderation of claims if some agreement is to be reached.

The Danish showdown with the European court of human rights

To explore further the domestic political dimension of backlash against international institutions, we turn now to a short empirical analysis of critique of the ECtHR, one of the world’s most powerful international courts. Many observers (Flogaitis et al., 2013; Popelier et al., 2016) have noted a growing unease with human rights in Europe, which in recent years has translated into a, at times, hefty critique of the ECtHR, the key institution in charge of securing the European Convention on Human Rights (ECHR/Convention). This is a general trend involving both consolidated democracies, such as the United Kingdom, Holland, Switzerland and Denmark, and less liberal states such as Russia and Turkey. This form of criticism was until recently, however, limited to more extreme voices. Yet, the critique eventually made it to the intergovernmental level through the negotiation of two controversial reforms of the ECtHR: the 2012 Brighton Declaration and the 2018 Copenhagen Declaration. Prior to that, the ECHR system had been reformed some 14 times since the original Convention of 1950. These processes had generally been expert-driven and steered by concerns related to rationalising the system by institutional adjustments and optimisation or expanding the catalogue of rights protected (Christoffersen and Madsen, 2013). Every single reform of the ECtHR, with the exception of the 2012 Brighton Declaration, can in fact be seen as supportive of the system. Dominated by experts, these technical reforms attracted only limited political attention.

In the case of both the Brighton and the Copenhagen Declarations, the respective governments of the United Kingdom and Denmark, however, deliberately politicised human rights. By politicisation, I suggest that these actors took the issue out of the hands of the usual suspects – diplomats and experts – and launched it into the arena of general domestic politics. In 2017, in the run-up to the Danish Presidency of the Committee of Ministers of the CoE, the then Danish Prime Minister Lars Løkke Rasmussen made a showdown with the Court, and particularly its dynamic and expansive interpretation of the Convention, an explicit government priority (Rasmussen et al., 2016: 55–56). This critique of the Court’s use of dynamic (or activist) interpretation was directly linked to intense media coverage of a set of expulsion cases before Danish courts involving foreign criminals where the ECtHR’s case law in some instances had hindered expulsion, as the persons in question had a protected right under Art. 8 ECHR, which protects the right to private and family life (Hartmann, 2017; Risbøl and Jensen, 2017).

This triggered critical reactions from many political quarters, including some that otherwise have been generally supportive of the ECHR (Mather, 2016). A growing choir of Danish politicians, initially from the right but eventually also including the centre-left of politics, viewed the ECtHR/ECHR as unduly guarding an undesired minority of foreign criminals. Both the Prime Minister and the Minister of Justice went ahead and labelled the ECtHR’s judgements as being simply incomprehensible, using a strikingly emotional language on numerous occasions, for example, also stating that the Convention made a ‘fool out of Denmark’ (Ritzau, 2016). Thereby, the ECtHR was depicted as out of line with both government policy and common sense. The system had, consequently, to adapt to domestic political concerns and reason. Politicians, it was recurrently stated, could not accept having their hands tied by an international court on matters of utmost domestic political importance. The long-standing tension between judicial control of parliamentarian democracy and the doctrine of the supremacy of parliament, a particular identitarian issue in countries such as the United Kingdom and Denmark, was thereby propelled into the European human rights debate.

This contestation was, however, not simply about the traditional fear of ‘government by judges’. The Danish criticism – like similar criticism in other member states – also evoked a growing tension between a Europe of free mobility of persons and the basic binary of national citizenship. In the optic of conventional citizenship law, non-citizens will not only face prison if committing a crime like ordinary citizens, they also run the risk of being forced to leave their country of residence. This binary has over time been mediated by the protections offered by the ECHR, which are cosmopolitan in scope and apply to everyone within the jurisdiction of the member state (ECHR Art 1) and, thus, also non-national citizens. By turning the focus on the rights of migrants, the critique of human rights thereby also imported into the debate a core tension of contemporary European society, namely the cleavage between a cosmopolitan notion of universal human rights for all and a nationalist notion of special treatment of national citizens. This was evidently the home turf of the far-right. The Danish People’s Party – like many of its European counterparts – had long attempted, and with some success, to link general Euroscepticism with immigration politics and denationalised European judges and law (Messerschmidt, 2013) to portray a toxic cocktail undermining national sovereignty and culture.

Navigating this complex political landscape and, at the same time, attempting to appease the Danish People’s Party in order to stay in power, an initial government position, made public already in 2016, was to ‘bring the Convention back to its original core’, a clear retrograde objective which was, nevertheless, presented as a way of modernising the Convention system (Mchangama, 2016). The assumption was that reversing European legal developments would take the legal protections back to a time when the ECtHR had not yet dynamically established the rights to family life of foreigners in its jurisprudence on ECHR Art. 8 (Henriksen, 2017). This initial programme, however, quickly failed as discreet consultations with other member states indicated little or no support for the idea. The government then called on experts to find new ideas at two conferences in Copenhagen and Kokkedal in 2017. Combining input from a host of actors – diplomats, academics and non-governmental organisations (NGOs) – the conferences identified a set of issues related to dialogue between the Court and the member states, better engagement in the proceedings before the court and new ideas related to subsidiarity, all of which were seemingly conducive for bolstering political and popular support for the ECtHR. Turning to a more conventional diplomatic arena, the government rhetoric was also visibly more subdued. One issue, however, caused frictions, namely suggestions made for new forms of political dialogue with the Court – an idea presented to remedy the problem that political disagreements with the Court lacked a proper venue and instead ended up exacerbated in the media. NGOs were quick to point to the risk of putting undue political pressure on the Court (Amnesty et al., 2017).

The critical rhetoric, however, soon after made a comeback at the European level, when Prime Minister Rasmussen on 24 January 2018 spoke in Strasbourg at the Parliamentary Assembly of the Council of Europe. Speaking as the chair of the CoE, he described the European human rights system as being ‘out of sync’ with both the member states and their electorate (Rasmussen, 2018). The stance of the Danish government caused further controversy across Europe when, in February 2018, it released a first draft of what eventually became the Copenhagen Declaration in April the same year. While the draft in principle contained the issues discussed at the 2017 Kokkedal High-Level Conference, these had been greatly politicised in order to speak to and satisfy the critical domestic political agenda. The draft, for example, singled out immigrants and asylum-seekers, and generally called on the ECtHR to be deferential vis-a-vis the member states. It immediately triggered a storm of critique from NGOs, academics, as well as CoE organs such as the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly.

Although the draft was met with significant criticism, it also played into a broader transformations with regard to the place of European human rights in domestic politics. In fact, the criticism voiced by the UK government already in 2012, when chairing the Committee of Ministers of the Council of Europa, was fiercer than the Danish campaign and resulted in the more consequential Brighton Declaration (2012). Targeting the general expansionist tendencies of the Strasbourg human rights system, the Brighton Declaration sought to institutionalise a new balance in the protection of European human rights where member state institutions should play a new and more prominent role (Helfer, 2012; Madsen, 2018). The eventual Copenhagen Declaration, adopted in April 2018, continued for the most part down the same path of seeking to repatriate human rights to domestic institutions. After having first cleansed the text for overly politicised elements that could put the independence of the court into jeopardy and, secondly, found a diplomatic solution to the proposal for political dialogue on developments in the ECtHR’s jurisprudence, the central theme of the negotiation of the final Declaration was subsidiarity – the notion that the immediate local institutions are generally better placed to make decisions than supranational institutions. Consequently, the ECtHR should refrain from overturning well-prepared and reasoned decisions of domestic courts and, in some cases, parliaments. In the first draft of the Copenhagen Declaration, subsidiarity was, however, formulated as a broad principle to be applied across all rights of the Convention. ¹ This triggered hefty debate and the provision was eventually rephrased and delineated to specific Convention rights – so-called qualified rights, that is, the rights that can be limited if necessary in a democratic society.

The Danish government maintained its critical rhetoric throughout the process, notably in the Danish press, but the final Declaration was hardly the declared showdown with the Court. In fact, the wording adapted in the final Copenhagen Declaration with regard to subsidiarity was in large part inspired by the ECtHR’s own jurisprudence following the Brighton Declaration and off-the-bench writings of ECtHR judges on the subject (see particularly Spano, 2014, 2018). Thereby the Copenhagen Declaration ended up – perhaps somewhat puzzlingly in light of the accompanying political rhetoric – by codifying a development that was already taking place at the ECtHR. ² Those developments at the ECtHR might, however, well be seen as a result of the Court yielding to the pressure from the member states, notably via the Brighton Declaration (Cali, 2018; Madsen, 2016; Stiansen and Voeten, 2018). Regardless, this suggests that some of the objectives pursued by the Danish government were already a fait accompli before the Copenhagen Declaration. The Danish government kicked in open doors, but it nonetheless kept kicking to appease an inflamed sentiment towards the ECtHR coming from particularly the Danish far-right. The difference between the national and European audiences also became clear when the Declaration was finally adopted. At the European plane, the final Declaration was generally well received as supportive of the ECtHR, also among academics critical of the first draft. Meanwhile, at the national level, the Danish government maintained that they had succeeded in their attempted showdown with the ECtHR (Justice Mo, 2018), even if Europe had resisted and limited some of the plans. They declared themselves very happy with the outcome and ignored all criticism that they had paid a very high price in terms of international political legitimacy and capital.

Discussion and conclusion

There is no doubt that the Danish government, and before that the UK government, deliberately politicised European human rights when presiding with the Committee of Ministers of the CoE. The question is whether the Danish showdown with ECtHR is also a case in point for understanding backlash politics as a distinct form of politics. Recalling the definition of backlash politics provided by Alter and Zürn (2020), there is no doubt that the Danish campaign against the ECtHR was extraordinary and it purposely sought to challenge a dominant script: the supranational and Europe-wide protection of human rights as it has developed and been institutionalised since 1950. The aim was clearly to reverse developments at the Court, corresponding to the idea of retrograde objectives in Alter and Zürn’s backlash definition. The campaign, moreover, entered public discourse in Denmark and Europe, although with varying impacts. In Denmark, public discourse on the ECtHR was generally impacted and the ECtHR became a recurrent and surprising object of front-page news. In Europe, the initial Danish agenda and draft were met with significant resistance from civil society, diplomats and many CoE member states, writing it off as undue politicisation of European human rights which risked jeopardising the independence of the Court. Overall, the Danish case is probably best described as a domestically fuelled campaign targeting an international institution, but aiming at a domestic audience.

Some of the accompanying features identified by Alter and Zürn can also be observed in the Danish case. The rhetoric deployed by leading Danish politicians had clear elements of populist politics. The Prime Minister’s description of the Court as being out of sync with common sense and his insistence that politicians are the only legitimate decision-makers, and therefore should not have their hands tied by supranational courts, is standard populist rhetoric in terms of locating rationality in common sense and prioritising the political expression of the will of the people over institutional arrangements (Müller, 2017). Although using such language and argumentation is unusual for the Presidency of the CoE, it is probably not ‘taboo-breaking’ in today’s political landscape (Alter and Zürn, 2020). Different from the populist rhetoric used, the actual political strategies deployed were more standard ones and largely determined by the diplomatic logic of negotiating a declaration. Where the Danish project better fit the accompanying features of backlash politics proposed by Alter and Zürn is with regard to institutional reshaping. The Danish government made it an explicit goal to stop the expansive tendencies of the ECtHR (the critique of dynamic interpretation) and consolidate the key role of domestic institutions (subsidiarity). Countering the Danish proposals on, for example, new forms of political dialogue, civil society and other member states denounced these as intrusions into the independence of the ECtHR. Although critical and insisting on rebalancing European human rights in favour of domestic institutions, it is, however, not evident from the negotiation or the drafts that Danish presidency actually sought to fundamentally challenge the authority of the ECtHR. The final reform package – the Copenhagen Declaration – makes it very clear that the independence and authority of the ECtHR remain paramount. This suggests that for the Danish government, process mattered more than outcome. Their primary goal remained to convince a domestic audience that they were engaging in the question – the actual outcome was less consequential. Using the theory of Madsen et al. (2018) evoked above, the campaign sought pushback, rather than backlash; that is, the goal was to reverse practices, but within the rules of the game (Madsen et al., 2018). The campaign also pursued a set of limited goals, which the government – after much negotiation – could declare had been achieved.

The connection between domestic political interests and agendas and international reform processes has been discussed intensively in the literature (Evans et al., 1993; Knopf, 2009; Putnam, 1988). The case of the Copenhagen Declaration clearly speaks to that literature. The question is whether connecting that literature to the theory of backlash politics helps answering the question of whether international institutions are more prone to face backlash politics than domestic ones. And whether international institutions are particularly vulnerable and easy targets for satisfying domestic political interests. This article’s case study suggests that pre-existing commitments to international institutions might be given up fairly rapidly when significant domestic interests are at stake; that is, if we look only at the backlashers, we can observe that domestic interests came out ahead. But politics is a collective bargaining process and the two-level logic of international politics has also an alleviating effect on such domestically fuelled backlash. While the Danish government went forward with its populist jargon, the logic of diplomatic negotiation, academic scrutiny and the interests of the other member states and civil society transformed their ideas and proposals. International institutional reform is particularly constrained by diplomatic protocol and the basic need to find consensus among the involved member states. Hence, international institutions are likely more prone to face backlash politics, but when such backlash objectives are channelled into ordinary negotiations, they are likely muted and transformed. Backlash politics against international institutions that does not pursue such ordinary channels of diplomacy might in fact be more devastating. A case in point is the refusal by the current US administration to appoint new judges to the Appellate Body of the World Trade Organisation. This strategy is slowly and discretely making the court inoperational (Shaffer et al., 2017). This suggests that the discussed mediating effects of two-level politics on domestically fuelled backlash politics might be less consequential in cases of discreet backlash.