The Economic, Judicial and Political Influence Exerted by Private Foundations on Cases Taken by NGOs to the European Court of Human Rights: Inklings of a New Cold War’?

Published date01 January 2016
Date01 January 2016
The Economic, Judicial and Political
Inf‌luence Exerted by Private Foundations on
Cases Taken by NGOs to the European
Court of Human Rights: Inklings of a New
Cold War?
Gaëtan Cliquennois* and Brice Champetier**
Abstract: Because of the so-called austerity policiesimplemented by European institu-
tions and national governments entailing substantial public spending cuts, national funda-
mental rights structures responsible for considering individual petitions and complaints
have seen their resources signif‌icantly reduced. Similarly, non-governmental organisations
(NGOs), which have become specialised in lodging complaints with the European Court
of Human Rights, have faced a substantial decrease in their funding. For these reasons,
many NGOs active in the protection of human rights seem to have become increasingly
dependent for their funding on private foundations led by wealthy f‌inanciers who pursue
economic, political and judicial objectives that are not always self-evidently compliant
with the European standards of fundamental rights protection. The best example is per-
haps that of the Open Society Foundations, which funds many NGOs. While scant atten-
tion has been paid by scholars to this phenomenon, this increasing dependency of NGOs on
economic f‌inancewill have a deep impact on concentrating and orientating applications
towards specif‌ic domains and against specif‌ic countries. This process could therefore lead
to the thwarting of the protection given to certain rights in certain countries that are not
seen as priorities for NGOs and private foundations and could seriously compromise the
right to make complaints to the ECtHR.
I Introduction
In this article, we aim at contributing to the analysis of the case law of the European
Court of Human Rights (hereafter, ECtHR) from what seems to us a rather unexplored
perspective. In a nutshell, we consider not only the case law of the ECtHR as a given
and f‌ixed output but we pay attention also to the role that inputs, in the form of the pe-
titions brought before the Strasbourg judges by repeated players (and the litigation
strategies that underpin them), play in the the making of the case law of the ECtHR.
To put it differently, instead of a narrow reconstruction of this or that ruling of the
* Gaëtan Cliquennois, CNRS, University of Strasbourg, Societies, Actors, Government in Europe (SAGE), 5
avenue du Général Rouvillois, F-67083 Strasbourg cedex. E-mail:
**Brice Champetier, University of Strasbourg, Societies, Actors, Government in Europe, 5 avenue du
Général Rouvillois, F-67083 Strasbourg cedex. E-mail:
European Law Journal, Vol. 22, No. 1, January 2016, pp. p. 92126.
© 2016 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
ECtHR, or an analysis of the techniques and methods of interpretation of the court, we
consider how the case law of the court comes to be made: both in terms of input and in
terms of process. The repeated players on which we focus are a set of non-governmental
organisations (hereafter, NGOs) that have become specialised in bringing cases before
the ECtHR. For a long time, such a role has been neglected in the literature (and in the
public discussion). To this may have contributed the fact that relatively ample public
funding for such NGOs in the past might have fostered the conclusion that the said
NGOs played a mere facilitating role of individual petitions. Still, it was always the case
that a considerable source of funding for many of these NGOs was a reduced set of pri-
vate donors. Furthermore, austerity policies have made impossible to ignore the clout
of donors over NGOs. Budgetary cuts have resulted in declining levels of public
funding, precisely at a time at which the number of potential complaints before the
ECtHR has increased, given the multiplication of alleged breaches of fundamental
rights resulting from austerity policiesjustif‌ied in the name of f‌iscal emergencies.
But less public funding for NGOs translates into more room for private donors turning
funding into inf‌luence. This renders imperative to consider the relationship between
output, input and process in the making of the jurisprudence of the ECtHR, and in par-
ticular, the structural and substantive political agendas of private donors, or what is the
same, the ways in which they try to inf‌luence the ECtHR through the strategic funding
of NGOs litigating before it. To put it in more politico-scientif‌ic terms: By means of
taking seriously the extent to which private donors fund NGOs, and how they can make
use of that funding to shape the agenda behind NGOs litigation strategies, we can con-
sider the way in which the source of the f‌inancial resources that make bringing cases be-
fore the Court possible inf‌luences the structure and the substance of the jurisprudence of
the ECtHR.
The article focuses on litigation against the Russian Federation. The choice of this
case study is motivated not only by sheer quantitative reasons (litigation against Russia
represents a disproportionate amount of the case load of the ECtHR year in and year
out) but also by qualitative ones (the consequences and implications of NGOs becom-
ing key players in the Convention systemcan perhaps be most vividly illustrated by
reference to the Russian case). A handful of NGOs are repeated litigators against Rus-
sia, act as amicus curiae in cases against Russia or are involved in the process of execu-
tion of judgements in Russia. While there are structural reasons that account for the
large number of cases against Russia, the said NGOs play a key instrumental role in en-
suring that potential cases against Russia are actually brought before the ECtHR, and
result in Russia being effectively declared to be in breach of the ECHR. But being a re-
peated litigant is expensive. The NGOs that once and again are involved in cases
against Russia can afford to do that because they have signif‌icant resources at their dis-
posal. On the basis of a close analysis of litigation and funding patterns, we conclude
that the donors that most generously fund litigation against Russia are pursuing polit-
ical and f‌inancial objectives that can be fairly constructed as fostering what may be la-
belled as a new cold waragainst Russia. This has perhaps become more visible in the
last two years, very especially after the mounting tension between on the hand Russia
and on the other hand the European Union (EU) and the USA. But the trend is far
from being new and can indeed be traced back to the very end of the oldcold war
in 1989. To avoid misunderstandings, it should be noted that the interpretation we
put forward does not imply that Russia is being unfairly condemned for non-existing
violations of human rights. Our point is a rather different one. What we f‌ind is that
NGOs/private donors (largely echoing and inf‌luencing EU/US foreign policy) make
European Law Journal Volume 22
© 2016 John Wiley & Sons Ltd 93
strategic use of the ECHR system and litigation before the ECtHR, and that such
instrumentalisation of human rights, far from being conducive to a better protection
of rights, actually tends to foster the opposite. To put it differently, the point is to
show that the new cold war dynamics revolves around an instrumentalisation of
the European system of human rights, which, albeit far from new, is extremely
To substantiate our claims, we depart from concrete cases litigated before the
ECtHR, but consider them in their wider context by analysing not only the relevant
European and national legislation but also off‌icial statements, press releases and private
foundations and NGOsreports and documents. This allows us to consider at the same
time the case law and the discourses surrounding the case law, key in the
instrumentalisation of the latter.
II The Gaps in the European Union Literature on Fundamental Rights
Protection (and Some non-European Union Literature That may be of Help
When Filling Them)
Analyses of the case law of the ECtHR tend to consist in either black-letter reconstruc-
tions of the jurisprudence of the ECtHR or in analyses of the techniques and methods of
interpretation to which the Strasbourg judges resort to. In the latter regard, it is usually
assumed that the ECtHR has developed fundamental rights standards mobilising
a range of interpretative methods, which simultaneously ref‌lect the fundamental
objectives pursued by the judges and the contextual constraints imposed upon them.
though the discretion involved in judicial interpretation (and the use at which discretion
is put, i.e. the extent to which it is used to foster socially desirable outcomes) is widely
acknowledged to be highly relevant, not much attention is paid to how litigants try to
inf‌luence the ECtHR. As several authors have stressed, we lack scholarship analysing
litigants impact on the substantive content of the case law of European courts beyond
specif‌ic cases.
It is only recently that the difference that litigation undertaken by litigants (and very es-
pecially NGOs) before international and regional courts
(and their growing presence at
the international level) makes has started to be analysed.
Important publications have
documented the capacity of NGOs to foster both judicial and political changes through
Even if most of the studies have focused on US, not European courts, some
A. Torres Pérez, Conf‌licts of Rights in the European Union. A Theory of Supranational Adjudication (Oxford
University Press, 2009).
S. Ahmed, The Impact of NGOs on International Organizations: Complexities and Considerations, (2011)
36 Brooklyn Journal of International Law, 817840; L. Hitoshi Mayer NGO Standing and Inf‌luence in Re-
gional Human Rights Courts and Commissions, (2011) 36 Brooklyn Journal of International Law, 911946.
J Mertus From Legal Transplants to Transformative Justice: Human Rights and the Promise of Transna-
tional Civil Society, (1999) 14 American University International Law Review, 13351389.
R. Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (Cambridge
University Press, 2007); L. McIntosh Sundstrom, Russian NGOs and the European Court of Human
Rights: A Spectrum of Approaches to Litigation(2014) 36 Human Rights Quarterly, 844868. N. Vajic,
Some Concluding Remarks on NGOs and the European Court of Human Rights, in T. Treves,
A. Fodella, A. Tanzi and M. Frigessi di Rattalma (eds.), Civil Society, International Courts and Compliance
Body (Springer, 2005), 93106, at 9697; L. Van den Eynde, An Empirical Look at the Amicus Curiae
Practice of Human Rights NGOs before the European Court of Human Rights, (2013) 31 Netherlands
Quarterly of Human Rights, 271313.
The Economic, Judicial and Political Inf‌luenceJanuary 2016
© 2016 John Wiley & Sons Ltd94

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT