A serious case of Strasbourg-bashing? : an evaluation of the debates on the legitimacy of the European Court of Human Rights in the Netherlands

Abstract

Over the past several years, there has been an increase in critiques of the European Court of Human Rights, most notably and surprisingly amongst its founding members, like the Netherlands. These critiques are often understood as a crisis of legitimacy. In order to assess whether this is the case, the definition and operationalisation of legitimacy is crucial. This article evaluates the critiques in the Netherlands, using a subjective understanding of legitimacy based upon works by Sharpf and Schmidt, who emphasise input, throughput and output legitimacy, but also that of the demos concerned. The latter dimension is often overlooked in other studies. The critiques of the European Court of Human Rights in the Netherlands are discussed on the basis of archival research, literature review, interviews and survey research. On the basis of the exploratory findings for the Netherlands, the article concludes that, in taking a subjective approach to legitimacy that covers all its dimensions, including support for the European demos, into account, the crisis of legitimacy could be deeper than most scholars estimate. Both the theoretical approach and the empirical insights from the Netherlands are considered of relevance to wider research on the legitimacy of the international human rights regime.