Canaries in the Mine? European Legal Mobilization and its Discontents

• In Event: Europe’s Courts: Between Bottom-up Mobilization and Popular Backlash

Abstract

Resentment about interference by European courts recently surged across much of Europe, and backlash exploded as the British insisted on ending the jurisdiction of the Court of Justice (ECJ) over any future relationship with the European Union (EU) after the United Kingdom (UK) withdraws. Most observers attribute the “Brexit” (British exit) result of the EU membership referendum to populist anger over intra-EU migration. Yet while most governing elites rejected the “Leave” campaign, the ruling Conservative party had sought to end the jurisdiction of the European Court of Human Rights (ECHR). Despite pervasive grumbling about controversial ECJ and ECHR rulings, no others seek similar “exits.” Meanwhile, individuals from newer democracies of Central/East Europe overwhelm the ECHR docket with allegations of abuse, even while their complaints rarely reach the ECJ. What explains British aversion to both European courts, widespread grievances short of exit, and the differential attraction of Central/East Europeans to each court? In this paper, I explore popular and official frustration with European courts in long-standing democracies and the tsunami of claims from individuals in newer democracies to only the ECHR. I propose that this confluence of events constitutes a canary in the mine – a warning mechanism – which identifies distinct “breaches of contract” afflicting Europe, West and East: (1) both courts breach the contract of their legal regimes by creating obligations that range far beyond adopted texts, angering governments that value both the rule of law and democracy, (2) a small set of states including the UK have been on the receiving end of a highly disproportionate share of unwelcome judicial creativity, and (3) individuals in newer democracies expose flagrant breaches of agreed rules by appealing to the ECHR against national courts, whereas the ECJ relies on referrals from national courts, allowing them to serve as restrictive gatekeepers.

What are the broader implications of these dynamics for European politics? Widespread backlash against social rights expansions for “immigrants” across Western Europe, the extraordinary Brexit blowback, and recent ECJ and ECHR retrenchment suggest that Europhiles and progressives cannot rely on international courts as a sustainable means to pursue preferred policies through litigation. Courts do not operate in political vacuums, and judges can be expected to be fickle friends in the wake of steady, strong political pressure. Appointed officials that persistently defy the wishes of democratically elected politicians will eventually face negative consequences, as will the beneficiaries of their generosity. Those who seek a more progressive, cosmopolitan Europe will need to invest in the sweat equity of mobilizing for this goal “politically” in more democratically accountable venues and “socially” in communities where national identity remains salient rather than primarily or only “legally” in the relative comfort and rationality of the court house.

Author

• Lisa Conant, University of Denver