In Europe, since some years now, the rule of law is contested at domestic and European level. Also the European Court on Human Rights in Strasbourg seems to be caught in a legitimacy trap, with politicians in different countries (including the UK, Russia, the Netherlands and Switzerland) suggesting to leave the court and have national judges decide on human rights issues. This raises the question how supranational judges decide: are they socialized into a ‘supranational’ mindset, where they adopt ‘European’ norms? Or do they rather decide based upon their national background and the norms and values which dominate in the national context, given the fact that their socialization into the profession took place in domestic institutions? Also, every member state appoints a judge to the court precisely in order to have all national views represented.
We will analyse all rulings on LGBT rights by the European Court on Human Rights, trace the nationalities of the judges involved and link them to the ranking on LGBT rights of their country of origin. We analyse this data asking to what extent we see patterns of more conservative or more progressive rulings depending on the composition of the court, and whether we see change over time. In a next step we focus on the concurring and dissenting opinions on each case, in order to explore more in-depth to what extent the national background of individual judges matters on this supranational court. It enables us to see on which basis cases are decided when the human rights of LGBTs are at stake, and whether the backlash in several countries against human rights in general, and LGBT rights more specifically, translates into more conservative rulings. Or is the court still upholding its reputation as a strong human rights court, with judges behaving as ‘European norm entrepreneurs’ with an active role in creating European norms and values, despite the mounting attacks on their legitimacy?
