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’?

• Author: Gaëtan Cliquennois,Brice Champetier
• Published date: 01 January 2016
• DOI: http://doi.org/10.1111/eulj.12171
• Date: 01 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 policies’implemented 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 f‌inance’will 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: cliquennois@unistra.fr.

**Brice Champetier, University of Strasbourg, Societies, Actors, Government in Europe, 5 avenue du

Général Rouvillois, F-67083 Strasbourg cedex. E-mail: champetier@unistra.fr.

European Law Journal, Vol. 22, No. 1, January 2016, pp. p. 92–126.

© 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 policies’justif‌ied 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 ‘system’can 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 war’against 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 ‘old’cold 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

problematic.

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 NGOs’reports 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.

1

Al-

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

litigant’s 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

2

(and their growing presence at

the international level) makes has started to be analysed.

3

Important publications have

documented the capacity of NGOs to foster both judicial and political changes through

litigation.

4

Even if most of the studies have focused on US, not European courts, some

1

A. Torres Pérez, Conf‌licts of Rights in the European Union. A Theory of Supranational Adjudication (Oxford

University Press, 2009).

2

S. Ahmed, ‘The Impact of NGOs on International Organizations: Complexities and Considerations’, (2011)

36 Brooklyn Journal of International Law, 817–840; L. Hitoshi Mayer ‘NGO Standing and Inf‌luence in Re-

gional Human Rights Courts and Commissions’, (2011) 36 Brooklyn Journal of International Law, 911–946.

3

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, 1335–1389.

4

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, 844–868. 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), 93–106, at 96–97; 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, 271–313.

The Economic, Judicial and Political Inf‌luenceJanuary 2016

© 2016 John Wiley & Sons Ltd94