Human Rights Courts Under Attack: Backlash and Resilience in the European and Inter-American Human Rights System

In times of an alleged backlash against international courts, understanding how courts overcome and manage such challenges becomes crucial. Human rights courts are particularly insightful in this regard as they turned out surprisingly resilient in the face of unprecedented, multifaceted attacks, featuring state withdrawals and threats thereof, open non-compliance, and systematic attempts to cut their funding. Interestingly, they do not share the fate of the WTO dispute settlement body or the SADC tribunal. How and why are they able to combat state pushback? Hence, this paper follows a two-fold approach. In a first step, I will identify challenges to an international court which hold the potential to threaten the functioning of the international court. For this reason, I will provide a categorization of four different practices of criticism, ranging from general objection to system-threatening backlash. This categorization will then be applied to empirical case studies in both regional human rights systems. In a second step, I will introduce the concept of resilience, carving out the factors, which make human rights courts more resilient to extraordinary critique. By applying insights from international relations and organizational sociology, I argue that the institutional context, the “ecosystem” of the ECtHR and IACtHR, plays the decisive role in deciding whether the Court is able to withstand attempts to undermine its authority.