Exploring Linkages Between Rule of Law Backsliding and Human Rights: How to Find the Brakes on a Slippery Slope?

In this special issue, we set out to explore and problematize the concept of rule of law backsliding and its relation with human rights, asking how we can find the brakes on a slippery slope. As part of that inquiry, we find it first useful to consider why the notion is employed at all. We argue that the metaphor of backsliding¹ is more than just a catchy and often-used phrase to describe concerning tendencies of deterioration. Much-used in the context of democratic erosion, ‘backsliding’ has become shorthand for a range of developments. In a nutshell, it points to the many ways in which democracy is increasingly weakened not through the open flouting of rules and norms designed to protect it but through deliberate actions of elected governments, acting under a thin veneer of democracy. Labelling a national situation as ‘backsliding’ is thus an attempt to describe how some governments systematically weaken checks on their executive power, by restricting civil and political rights, and by bending existing electoral systems in order to perpetuate their hold on power.² The vexing character of such backsliding lies in the very usage of existing democratic institutions rather than their abolition.³ At the surface, democracy still persists, but through amending the make-up and membership of institutions, changing of competences, and shifts in what is seen as acceptable democratic behaviour, democracy and especially the brakes on executive powers are eroded purposefully step by step.

One of those key brakes is the judiciary. No wonder then that democratic backsliding often goes hand in hand with a weakening, capturing and encapsulating of courts in the stifling embrace of the government in power. Thus the dismembering of democratic checks and balances also erodes judicial independence and impartiality. In addition, backsliding of democracy and rule of law leads to more human rights violations, beyond those directly related to democracy (voting rights) or the rule of law (the right to a fair trial). Human rights backsliding, after all, may also occur when authorities in power silence opposition voices with restrictions on the freedom of speech or assembly or by imposing limitations on media freedom. It may equally involve the stifling of the activities of civil society organisations or human rights defenders. Rule of law backsliding is often accompanied by fewer or weaker human rights protections, and by the enacting over time of discriminatory laws and policies. It often includes the withdrawal of previously recognised rights or recourse to justice, as well as stagnation in any progress towards a fulfilment of rights. Indeed, it often disproportionately affects marginalized groups, as securitization populism targets vulnerable populations, such as immigrants, ethnic minorities, or political dissidents. The rule of law is often selectively applied, with discriminatory practices being institutionalized. As a consequence, researching ‘backsliding’ involves examining how the erosion of legal standards occurs within political systems that may still outwardly uphold democratic structures and by studying how legal norms, institutional checks, and judicial independence are being weakened, often resulting from political pressures, populist movements, or authoritarian tendencies.

In going beyond a diagnosis of backsliding, it is also crucial to see which ‘brakes’ are in place or should be in place to prevent or counter it. In order to do so, a deeper understanding of what the rule of law is, going beyond its formal characteristics, is necessary. This is why the ‘empirical turn’ in rule of law studies, which has become noticeable in the last few years,⁴ is a welcome complement to theorising about the concept. It includes looking at actors beyond the trias politica at the national level, both by zooming out to assess the work of international and regional courts,⁵ and by zooming in to examine the activities of societal actors beyond the trias which are seeking to buttress the ‘rule of law from below’, as some of us have argued earlier in this journal.⁶ Only by doing so can a full picture emerge of what backsliding entails and of what the brakes on such a slippery slope could be.⁷

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So what does human rights thinking add as a perspective in the ever-broadening literature on backsliding of democracy and rule of law? In our view, backsliding as a way of framing developments in a range of states and even at the multilateral level from the specific angle of human rights, stems from the fact that human rights discourse is steeped in the idea of a collective movement forward, toward a common goal: a situation in which human rights are respected, protected, and fulfilled.

Article 1 of the United Nations Charter indicates that one of the purposes of the UN is ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion’. Likewise, the Universal Declaration of Human Rights (UDHR) holds itself up as ‘a common standard of achievement for all peoples and all nations’. It also indicates that every individual and every organ of the society shall ‘strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among peoples of Members States themselves and among the peoples of territories under their jurisdiction’.

In other words, these documents frame the human rights venture as a struggle characterized by adversity but also progress or, a slow, uneven, yet unmistakable movement forward. The point of departure for both documents is the time after World War II. With the negotiating of these documents perceived to be a sort of human rights ground zero, the wording cited reflected an aspiration to a world where ‘human rights are protected by the rule of law’.⁸ The framing of human rights as a struggle characterized by forward motion is reflected by the word ‘shall’ in almost all articles of the two major human rights Covenants, the International Covernant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), indicating that the states’ undertakings count not just in the present, but also carry into the future.⁹ This way of perceiving the issue did not stem from some kind of naive positivist outlook in the 1940s on law or politics, but rather from an astute understanding of the urgency and necessity to avoid more human suffering.

The idea that the human rights discourse is often portrayed as a ‘striving’ towards an ‘ideal’ is particularly strong in the ICESCR which articulates states’ obligations as undertakings that can be achieved incrementally. Article 2 of the ICESCR famously indicates that the states will undertake to ‘take steps’ to achieve ‘progressively the full realization of the rights recognized in the present Covenant by all appropriate means’. The wording ‘take steps’ is then repeated in many provisions of the ICESCR, in for example the right to work, the right for everyone to the enjoyment of the highest attainable standard of physical and mental health and the right of everyone to take part in cultural life. This wording reflects that the states committing to the human rights project when ratifying the two Covenants were committing to embarking on a human rights journey characterized by ‘progress’ notwithstanding ‘difficulties’.

In light of that imagery, it is not surprising that human rights and rule of law scholars have internally characterized the human rights project as an uphill battle, one in which there are many impediments, challenges, and difficulties but where progress is eventually made anyway.¹⁰ Understanding that the whole human rights discourse is positioned around the idea of progress in the face of adversity may help explain why the image of backsliding is so often employed to describe the situation that we find ourselves. Certainly it provides insights into why the idea that the rule of law and human rights is facing backsliding (i.e. backward motion and regression) is an anathema to the human rights project whose discourse is framed around forward-motion, progress and achievement. In recent years many states around the world have seen systematic threats to their legal and democratic fabric and a declining rule of law. Regressive actions have become all too common with states even withdrawing from human rights treaties. There have also been a succession of countries withdrawing their declarations allowing individuals and NGOs to directly submit applications to the African Court on Human and People’s Rights.¹¹ This measure effectively prevents individuals and NGOs within the country from directly accessing the courts to seek redress for human rights violations, representing an clear and even cynical attempt to evade accountability. On the rule of law front, there have also been numerous examples of states taking regressive measures that threaten the rule of law, human rights, and democracy. For instance, in Poland and Hungary,¹² where the gradual deliberate deterioration of legal safeguards and of principles underpinning democratic governance happened in the timespan of just a few years. The process is often subtle, involving small yet cumulative changes undermining judicial independence, reducing checks on executive power, and eroding the protection of fundamental rights.¹³ The European Union (EU) and other international organizations have attempted to counteract rule of law backsliding, particularly in Poland and Hungary. However, these efforts have mainly been too little and too late due to the political complexities within member states. While the EU has legal mechanisms, such as Article 7 procedures, to address rule of law violations, enforcement remains challenging. The reversal of backsliding in Poland only occurred when the domestic opposition secured an election victory in 2023. Regional courts, including the ECtHR, have been crucial in upholding legal standards, but their rulings are not always fully implemented at the national level.¹⁴

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Our thinking on the development and conceptualization of the notion of backsliding in relation to both human rights and the rule of law builds on the fruitful discussions and exchanges in a September 2023 international workshop organized by Utrecht University’s Montaigne Centre for the Rule of Law and Administration of Justice and the Netherlands Institute of Human Rights (SIM). The articles in this special issue of the Utrecht Law Review are the results of this workshop, which delved into the linkages between the rule of law backsliding and human rights. The workshop’s goal was to investigate how ‘backsliding’ can be identified, what it entails, what the ‘brakes’ against backsliding could be and whether and to what extent these brakes work. The experts brought together in Utrecht approached these questions from legal and political theory, from European and international law and through various thematic lenses. A small selection of the papers presented during the workshop has been brought together in this special issue.

The three substantive articles explore the topic from different perspectives. A common strand in all articles is that their authors reveal the subtleties of (the risks of) backsliding. They show that more obvious efforts to hijack a state’s constitution like an open coup d’état have become replaced in many cases of democratic backsliding by more intricate insidious manipulations of democracy such as gerrymandering, pandering with electoral laws and rules, and other ways of making the playing field of democracy skewed towards the ruling party or powers, the same can be said of rule of law backsliding. It is no longer only, as it used to be, about firing judges or packing courts with party-connected appointees, but also about finding indirect ways of increasing the hold of the executive over the judiciary by, for example, changing the internal organization of courts or the changing of pension ages. There is yet another deeper layer, beyond practical actions, and that is the use or mis-use of legal concepts or even the implicit or unintended consequences of relying on or co-opting these concepts and even attempts to change the discourse about the ‘what’ and ‘why’ of rights and judicial protection. Judicial deference is one such example, which can manifest in the security realm but can also surface in other situations of risk or exception, in which the executive seems not only better placed to make assessments of competing interests but in which the judiciary as well as the legislative can too easily take a backseat, foregoing their rule of law functions of balance of powers, oversight, and protection of human rights.

Beyond just pointing out the dynamics of (potential) backsliding, the articles implicitly or explicitly also lay bare potential brakes. Whether it is rethinking deference or notions of precaution and risk, or, more explicitly, the various practical and discursive responses by international human rights bodies, both in defensive and offensive ways. In doing so, the articles in this special issue span the whole panorama from legal theory to judicial practice and show how they are intertwined.

In his contribution entitled ‘Application of the Precautionary Principle in Dealing with Future Pandemic Diseases: The Dilemma of Legality and Legitimacy Under the Rule of Law’, Reza Khabook critically examines the application of the precautionary principle in managing future pandemics as a type of case study in assessing the argument of ‘exceptionality’ in law- and policy-making. This is the principle used by decision-makers managing risk where scientific information is insufficient, inconclusive or uncertain but where there are indications that the possible effects on the environment or human, animal or plant health may be potentially dangerous and risk protection.¹⁵ He emphasizes how governments increasingly use ‘exceptional’ laws instead of declaring a state of exception. This shift, while aiming to maintain democratic values, risks undermining the rule of law by focusing on legality at the expense of legitimacy. While arguably to some extent necessary to protect, for example public health during the pandemic, the critical insight is that laws based on the precautionary principle can lead to backsliding in the rule of law, particularly when they normalize restrictive measures that infringe on human rights and individual freedoms. Based as they are on a logic of risk management to contain imminent dangers such as a pandemic, such approaches carry risks in themselves. And ironically, while using laws of exception rather than declaring outright emergencies is meant to protect democracy and the rule of law, it can also inadvertently erode the rule of law. Thus, the article highlights that such laws must be scrutinized not only for their procedural legality, but also for their substantive compliance with democratic principles and human rights. It argues that merely fulfilling the principle of legality could justify authoritarian actions if legitimacy, based on fairness, equality, and human rights, is overlooked. The article’s main contribution thus lies in its call for a broader interpretation of the rule of law, integrating human rights and democratic principles. In arguing along these lines. H Khabook shows how ‘legitimacy’ as an analytical lense could play a central role in preventing the erosion of the rule of law by ensuring precautionary legislation is fully legitimate, not just procedurally legal.

In their article, ‘Excessive Judicial Deference as Rule of Law Backsliding: When National Security and Effective Rights Protection Collide’, Rumyana van Ark and Tarik Gherbaoui, illustrate how judicial failure not only affects individual cases, but can also contribute to a broader hollowing out the rule of law from within. They do so by pointing to the trend of deference by courts, both domestic and international, to the executive in cases related to national security, especially since the terror attacks of 11 September 2001. Through an analysis of judgments from the United Kingdom and from the ECtHR, the articles illustrates how judicial practice may erode the rule of law and the protection of human rights. Critical cases like A and Others v Secretary of State for the Home Department and its ECtHR counterpart show how courts found specific security measures to be discriminatory but failed to robustly oppose them. Closed Material Procedures (CMPs), which keep sensitive evidence hidden from defendants, are highlighted as a problematic legal tool that has been normalized despite undermining fairness. The article also examines cases like Shamima Begum and IR and GT v the UK to demonstrate how courts have facilitated government overreach by upholding security measures against individuals, especially non-citizens. The authors place their analysis in a wider context of normalisation of ‘securitisation populism’. Showing the impact of this on human rights values, tolerance, and the rule of law, they argue that human rights courts such as the European court in Strasbourg can and should play a key role in putting early brakes on this type of domestic backsliding. The article concludes that establishing strong rule of law and human rights safeguards through robust judicial review is crucial to protect the rule of law in the long run. Cases concerning national security are in many ways a litmus test for this.

In the last contribution, ‘Mobilising in Times of Gender Equality Backsliding: International Human Rights Responses to Anti-Gender Discourse’, Lourdes Peroni looks into how international human rights bodies have responded to the rise of anti-gender movements, particularly in Europe and Latin America. Often, these movements challenge gender equality and frame it as a foreign imposition, which in turn can lead to backsliding of rights protection through legal ‘reforms’. In many states, these developments are threatening the progress made in gender rights. The article identifies three response strategies: assertive, defensive, and offensive, through which international bodies respectively reaffirm the social construction of gender, attempt to clarify misunderstandings, and confront the unequal social order promoted by anti-gender discourse. One of the key insights in the article is that while human rights bodies have actively countered these discourses, the challenges they face, particularly in ensuring that gender equality is not seen as an external, foreign imposition, raise concerns about how to prevent further erosion of the rule of law. Peroni emphasizes how these bodies attempt to preserve hard-won gender equality gains, warning that failure to effectively counter anti-gender discourse could weaken human rights protection and reinforce regressive narratives within domestic legal systems. She does so by exploring the intersection between anti-gender movements and rule of law and human rights backsliding, particularly by showing how these movements impede legal protection for gender equality, including LGBTQI rights and reproductive rights. In the empirical part of the article, interviews with human rights advocates in Hungary and Poland reveal the difficulties in countering these narratives, especially as local communities often perceive gender equality as an external threat. The article highlights the need for international human rights bodies to balance legitimacy and legality, engaging with local values while resisting anti-gender backlashes. Ultimately, it stresses the importance of preserving human rights gains amidst growing opposition, suggesting that local advocates play a crucial role in shaping these responses.

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The authors’ contributions to this special issue attempted to unpack the intersection of rule of law backsliding and human rights, offering insights and recommendations on how to counteract this concerning trend and to prevent further deterioration of legal and democratic norms, suggesting ways forward on a slippery slope. Yet, critical enquiry does not stop there. The workshop and this special issue also gave rise to sets of additional question, which together could form a research agenda for the years to come.

We have already shown above why the metaphor of backsliding is probably employed in this area. While there has been quite a lot of attention given to ‘democratic backsliding’ in academic literature, and the last few years also to ‘rule of law backsliding’ in particular contexts, such as within EU law and policy, the linkages with human rights have received less attention. The metaphor of backsliding is useful in so far as it does not only help to track and frame regression but also begs the question of which factors and actors cause the backsliding. Indeed, the drivers of rule of law backsliding need to be better understood, in order to move closer to comprehending why each year is bringing less rather than more democracy globally, and why so many countries are moving backwards – not forwards – in global efforts to maintain the rule of law. There is also a need for a better understanding of the linkages between rule of law backsliding and domestic sources of discontent, specifically human rights violations, shrinking civic space, socioeconomic factors like rising inequality, rising populism or intensified political polarization.

As a corollary, the metaphor also indicates a need to investigate and take stock of the different instruments and tools that have been employed to prevent, slow down or even revert rule of law backsliding and explore their relative successes and failures at the domestic, regional and international levels. These may include bottom-up or top-down initiatives that have been designed to put a ‘brake’ on rule of law backsliding or make the rule of law more resilient against slippage. They may involve different actors, take place in diverse spaces or employ different instruments, including law. In addition, rule of law backsliding needs to be critically examined through its interlinkages with human rights law and international human rights institutions, considering the different roles that these legal frameworks and institutions can play countering the phenomenon of rule of law backsliding at domestic level. The current situation suggests a rule of law crisis may exist not only at the domestic level but also at international level. This makes it is necessary to investigate the relationship between domestic rule of law backsliding and international rule of law backsliding. Is one the driver of the other? And how can international (human rights) institutions be effective vehicles for compliance with the rule of law?

When domestic institutions are unable to safeguard the rule of law and human rights in situations of backsliding, it is necessary to enquire into the roles of United Nations human rights treaty bodies, special rapporteurs, and regional courts and institutions, such as the Inter-American Court of Human Rights, the African Court on Human and Peoples’ Rights and the European Court of Human Rights. In a sense, this is an enquiry not into the forces external to the backsliding but to the forces at play inside the system itself. Can such institutions potentially help to prevent or counter rule of law backsliding? Could the experience of such institutions in dealing with earlier, similar developments of rule of law backsliding and human rights shed light on today’s issues? How can international agreements serve as reliable commitments for civil society actors to mobilize around and hold their governments accountable? Which mechanisms and remedies does international human rights law provide and which ones would be beneficial to apply, varying from temporary measures to remedies suggesting structural changes? Alternatively, what effect does human rights backsliding at the domestic level have on the ability of international courts, tribunals and human rights bodies to wield legitimate and effective authority over states that are (apparently) less interested in the domestic and international rule of law? How is rule of law backsliding feeding into global or domestic perceptions of the relationship between international law and domestic law, sovereignty and human rights?

In addition to exploring the role of human rights norms and institutions in combatting the backsliding of the rule of law, it is also necessary to understand what effect rule of law backsliding is having on human rights protection. In particular, since rule of law backsliding goes squarely against the often-repeated mantra of an ever-increasing level of human rights protection, it is important to consider how this development influences the substantive standards of international human rights law. Which effects does rule of law backsliding have on different rights, for example the right to a fair trial, and how can one ensure that the courts remain capable of playing their role in protecting democratic channels in the worldwide trend of politicisation of the judiciary? What effects does rule of law backsliding have on popular understandings or interpretations of different rights? How can international human rights institutions guarantee that these rights are well-maintained in a context of rule of law backsliding? How can they best respond – and put a brake on this slippery slope rule of law backsliding – in order to prevent human rights violations? These are all questions meriting further exploration and research.

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As a final remark, the preparation of this special issue took place against the backdrop of the escalating armed conflict in the Middle East, including Gaza, Israel and most recently Lebanon and Iran. It is inescapable to link the academic thinking in this special issue to the real world. The conflict after all represents a stark reminder of what can happen when domestic rule of law is either absent or swiftly deteriorating, when laws are applied selectively or discriminatorily, when democratic checks and balances are faltering on all sides, and when the international rule of law mechanisms are proving themselves too weak to halt catastrophic human rights violations and other forms of backsliding. Take the judicial procedures instituted by South Africa against Israel before the International Court of Justice (ICJ), formally entitled Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). ¹⁶ Several times the ICJ issued interim measures, as requested by South Africa against Israel. On 28 March 2024, following another request for provisional measures, the ICJ ordered Israel to ensure basic food supplies without delay as Gazans faced famine and starvation, as was also later reported by amongst others the UN Special Rapporteur on the Right to Food.¹⁷ On 24 May, The Court ordered Israel to inter alia immediately halt its offensive in Rafah and again asked it to take all effective measures to ensure and facilitate the provision of humanitarian aid and assistance to the population of Gaza. Israel has, however, rejected all these rulings and has continued its military operations in Gaza causing an unconscionable loss of human lives and livelihoods and an appalling level of human suffering. In the days that we are writing this, Israel has recently notified the United Nations that it will ban the United Nations Relief and Works Agency from operating in Israel; a move that the UN Secretary General has said will have ‘devastating consequences’ for Palestinians.¹⁸ This ongoing and deeply troubling situation shows how decades of human rights violations and more recent democratic and rule of law backsliding can form a toxic and lethal mix. It also shows that understanding backsliding is not just an academic puzzle, but has crucial salience in the real world in halting human suffering. Finding out which brakes work on a slippery slope is thus not just a research question for academics, but an endeavour with significance to all people everywhere.