EJIL: Debate

• Helfer, Laurence R 1
• Voeten, Erik 2

Abstract

Over the last decade, scholars have debated whether the shifting landscape of individual rights protection in Europe has influenced the decisions of the European Court of Human Rights (ECtHR). In our article, ‘Walking Back Human Rights in Europe?’, we analysed every minority opinion of the ECtHR Grand Chamber between 1998 and 2018. We found a substantial increase in what we labelled as ‘walking back dissents’ – minority opinions asserting that the Grand Chamber has overturned prior case law or settled doctrine in a way that favours the government. In their Reply, Stone Sweet, Sandholtz and Andenas (SSA) offer two principal critiques. First, they assert that they could not ‘replicate’ our coding. Second, SSA challenge our claim that legal and political developments in Europe have incentivized the ECtHR to move in a rights-restrictive direction. These claims are inaccurate and mischaracterize our article. First, SSA do not ‘replicate’ our study. Instead, they code a very small subset of judgments using more restrictive, subjective and vague criteria – which, unsurprisingly, yield fewer walking back dissents. Second, SSA narrowly focus on the Brighton and Copenhagen conferences, ignoring numerous other changes at the national and regional level that have created a more constrained environment for the ECtHR.

• 1Harry R. Chadwick, Sr. Professor of Law, Duke University School of Law, USA; Permanent Visiting Professor, iCourts: Centre of Excellence for International Courts, University of Copenhagen, Denmark.
• 2Peter F. Krogh Professor of Geopolitics and Justice in World Affairs, Edmund A. Walsh School of Foreign Service, Georgetown University, USA.