On European Human Rights, Frames, and Critique

Dear Esra, dear Jens, thank you for accepting the invitation to share insights into your research on the framing and critique of European Human Rights Law with us.

You are part of the research group “Framing Reality and Normativity in European Human Rights Law: Climate Change, Migration, and Authoritarianism” (FRAMES). Could you explain the motivation behind this project and why frame theory is particularly suitable for analyzing European human rights law?

Esra Demir-Gürsel: We draw on the notion of frames to take the language used and the concepts selected in legal texts seriously. We seek to understand why something is presented in a certain way, how else it could be presented, and with what effect. There are different ways to frame an issue and to select and assemble the facts surrounding it. The frames contained in texts and other means of communication selectively produce and enforce “what will count as reality”, in Judith Butler’s words (p. xiii). The choices we make are therefore inevitably shaped by our perspectives and ideologies. This means that frames also allow us to examine the framer’s own ideology.

By analyzing the frames of European human rights law, we aim to understand the ideological choices made within the Council of Europe (CoE). The work of Council of Europe bodies — particularly, but not limited to, the European Court of Human Rights (ECtHR) — has been pivotal in constructing Europe as a space associated with democracy and human rights. At the same time, as a particularly powerful actor in the international politics of human rights, the Council of Europe has the power to influence how other actors see these issues and what solutions they produce – what gets to count as reality and as the norm, in other words.

Jens T. Theilen: There are many different approaches gathered under the banners of “frame theory” or “frame analysis”, but they share the critical impetus that Esra just described, which allows us to explore the fundamental assumptions underpinning legal texts and how they are communicated. For example, some of the questions we have been asking with regard to CoE texts on climate change, migration, and authoritarianism include: What is problematised or normalised in those texts? How are different causes and actors assumed to be implicated or not? And which issues or perspectives get moved out of the frame? In asking questions like these, there is quite some overlap with other critical intellectual traditions such as ideology critique or discourse analysis. For the most part, we have been less interested in delimitation from these other approaches than in drawing on common ground for analysing the connections between language, power, and knowledge production.

Thank you for introducing us to frame theory! To better capture how this plays out in practice, could you perhaps give an example of how such frames have manifested in the ECtHR’s case-law and the effects they have had? 

Jens T. Theilen: The Reykjavík Declaration of the European Heads of State from May 2023 contained a reference to “the increasing challenges of migration” and referred to “the necessity to fight against trafficking and smuggling of migrants”. It thus framed migration itself and especially trafficking and smuggling of migrants as the problem, rather than state policies regulating migration. In a recent article published in the European Journal of Migration and Law, I argue that similar framings persist in the case-law of the European Court of Human Rights as well. When categorising migrants as vulnerable or not, the Court talks about the dangers of crossing the Mediterranean (e.g. Khlaifia, para. 194) without mentioning state policies that make this crossing necessary. In cases on human trafficking, too, it frames individual actors as the problem, not the underlying state policies: for example, an employer’s threat of deportation, not the possibility of deportation as such (e.g. Chowdury, para. 97). These ways of framing the problem influence the potential solutions: more border controls (“to detect trafficking”, ibid. para. 110) and more criminal law enforcement rather than a fundamental challenge to state policies on migration.

Beyond the topic of migration that you just mentioned, climate change and authoritarianism represent your two other core areas of focus. Why did you choose to concentrate on these particular themes?

Esra Demir-Gürsel: Climate change, migration, and authoritarianism are not only three major global human rights issues but also among the most contested topics within the Council of Europe context. Member states resist having their policies and practices subjected to supervision, and the Council of Europe’s own institutions also tend to evade their own authority and jurisdiction in these areas. A crucial function of framing in the field of international law is its influence on the allocation of ‘authority, jurisdiction, and institutional responsibility.’ As Jens’s example on the framing of migration suggests, examining such frames helps us trace the CoE’s efforts to shield European states from responsibility. At the same time, we also observe attempts by CoE bodies to deny their own authority and jurisdiction by framing these issues in ways that assign authority and jurisdiction to member states. This is evident, for instance, in the case law of the ECtHR on the exhaustion of domestic legal remedies and in cases where the court limits itself to a review of the domestic legal or democratic procedures (for an example, see here). Ultimately, studying how responsibility and jurisdiction are evaded through framing allows us to understand the CoE’s ongoing struggle to preserve its image of Europe as a space associated with democracy, the rule of law, and human rights.

Interesting! With that in mind, how would you describe the current and (potential) future role of the European Court of Human Rights in each of the three areas? Are there particular ways in which the Court’s functions or (self-)perception differ depending on the subject area?

Esra Demir-Gürsel: The Court increasingly retreats to a norm-setting role, leaving the interpretation and application of those norms to the nation-state and its organs. This has been most evident in the Court’s case law on migration, but the Court has also taken a similar approach in its nascent climate change jurisprudence. It was very much debated whether the Court would frame climate change as a human rights issue with implication for its own mandate. It has eventually entered this field but as soon as it entered, it has retreated. It is as if it stepped in only to define and endorse the authority of the domestic (“democratic”) organs of the states. Başak Çalı, our third project partner in the Frames project, studies this trust shown to domestic organs and its implications by the Court. In a forthcoming special issue we put together as part of Frames project, Corina Heri discussed how the Court thus turned climate change into a matter of domestic concern and called this a “domesticating framing”.

In the field of authoritarian policies, practices, and laws, this tendency to retreat to a norm-setting role is more difficult to trace. This is not only because it is widely believed that the Convention system was established to counter exactly such policies, but also because the Court has a vast body of case law addressing authoritarian policies, practices, and laws, ranging from gross human rights violations such as enforced disappearances, torture, extrajudicial killings to those restricting free assembly and free speech. But the Court has not shown the required urgency in responding to the recent wave of authoritarianism in Europe. In a way, I believe, it sees this field as having been exhausted, given the detailed norms it has developed in its previous case law. It now seems to be merely a matter of applying these norms, which should be left to the states.

Jens T. Theilen: Overall, I think we have focussed less on differences between these three subject areas and more on potential commonalities. Besides the role that the Court sees for itself, we have focussed in particular on shared background frames at a high level of generality. The way that the ECtHR and other actors within the CoE frame what is “European” about European human rights law really stood out to us – this also links back to what Esra was saying about Europe being associated with democracy, the rule of law, and human rights. The Reykjavík Declaration, for example, operationalised the idea of Europe with regard to all three subject areas that we’ve been working on. The idea of Europe also has a long history of being imbued with civilizational hierarchies, which can likewise manifest similarly across subject areas (see in more detail here). But there is also scope for contestation: In our forthcoming special issue, Nurbanu Hayır traces different framings of what is “European” about European human rights law, and how these different framings impact migrant rights in the context of externalised border controls.

You already mentioned the idea that the Convention system was set up to specifically counter authoritarian policies, and the vast case law in this regard. Let’s explore this topic a bit further. With authoritarian tendencies and attitudes on the rise in several Council of Europe member states, the phenomena of resistance or even ‘backlash’ against international law and its institutions (studied e.g. here or here) are an important issue to discuss. How have potential manifestations of resistance or backlash influenced the European Court of Human Rights?

Jens T. Theilen: I would say that the issue of backlash goes beyond resistance by authoritarian states and, rather, relates to the structural dependency of the ECtHR on the CoE’s member states more broadly. After all, several states traditionally seen as liberal and democratic, like the United Kingdom and Denmark, have been at the forefront of the so-called “backlash”. Collectively, the CoE’s member states influence issues ranging from the selection of judges to the execution of judgments, and ultimately the very existence of the ECtHR hinges on their continued funding. This structural dependency is, I think, crucial to understanding the ECtHR as an institution: It is one reason why there is a built-in tendency within European human rights law to broadly accept and legitimise state laws and practices rather than challenging them. Discussions about backlash are just one manifestation of that.

Esra Demir-Gürsel: In that vein, even though the talk of backlash is something relatively recent, if we understand it as a form of political critique of the Court that is stronger than what the Court is familiar with, the Court’s cautiousness in addressing authoritarianism is not novel. For instance, the Court’s human rights violations in the Kurdish regions of Turkey is among the earlier instances where it consistently showed reluctance to fully exercise its powers. Interpreting the Court’s current passivity as a response to state criticism fails to account for such earlier instances.

Moreover, viewing the Court’s current weaknesses and flaws as linked to contemporary trends against human rights and democracy among the member states of the Council of Europe leads us to also perceive the Court itself as a victim of authoritarianism. This implies that the Court itself is benign and progressive, but due to a lack of political support, it is currently and temporarily unable to wield its powers as forcefully as it would like. This shows that how we frame a certain problem has implications for who to attribute responsibility, authority, and even victimhood.

Thank you for this insightful exploration. It makes me realize just how impactful this framing is on the perception of the Court, and gives cause for deeper reflection.
As this interview is drawing to a close, I’d like to briefly touch on your workshop on Critical Approaches to European Human Rights Law that you convened in January. As expressed in your Call for Papers, it aimed to challenge dominant framings – like the one you just mentioned of a benign and progressive Court – and further develop critical approaches to European human rights law as a whole. You stressed that while particular topics such as secularism and religiosity or gender and sexuality have received a fair amount of critical engagement, the conversation needs to be expanded. Do you feel like you have gotten closer to this goal? Would you like to highlight or share some insights of the workshop with the Völkerrechtsblog audience? 

Jens T. Theilen: To be clear, even for specific topics like religion and gender, critique very much remains necessary. But you’re right, we were trying to expand the conversation. A key point pertains to what Esra was just saying about how the ECtHR itself is framed within human rights scholarship. Many people working on the ECHR seem to retain an almost unshakable faith in human rights in general and the ECtHR as an institution in particular. Individual judgments are criticised but the underlying assumption is that the ECtHR and other human rights institutions can and will do better in the future (for examples of such assumptions, see here, p. 273). It is relatively rare that scholars suggest, as Claerwen O’Hara does, that freedom may be better sought elsewhere. We wanted to discuss European human rights law while suspending the widespread faith in the ECtHR and allowing for the possibility that it does more to solidify an unjust status quo than to move beyond it.

Esra Demir-Gürsel: The aim of the workshop was, in other words, to unearth and bring to the fore what assumptions lie behind that faith in the Court and in the idea of “European human rights” more broadly – and what is overlooked or downgraded to sustain that faith. The workshop did a good job in that sense, I think, by bringing together different strands of critique and shifting our focus to larger dynamics at play. For instance, papers and discussions moved from the flaws of the recent reforms of the Convention system to the broader relationship between those reforms and neoliberalism, or from how the colonial European powers resisted the idea of a binding human rights convention in one or the other way at the outset to the ongoing relationship between colonialism and the Court.

I am glad to hear! To wrap up this interview: What potential do frame analysis and other critical approaches hold in challenging and enriching scholarly debate surrounding the ECtHR, particularly in your three core areas of interest – climate change, migration, and authoritarianism?

Esra Demir-Gürsel: Both critical international legal theory and critical frame analysis open some paths which have remained dormant in the scholarship on the Council of Europe so far. For instance, we think it is important to unpack the “Europeanness” of human rights that Jens mentioned. For this, we need to go back to questions such as what it means to have a regional human rights organisation in Europe, a region that often makes ownership claims regarding human rights. Critical frame analysis more specifically can help us to question whether the flaws in the solutions to human rights problems offered by the Council of Europe might be linked to the way these problems are framed in the first place. How does framing the current trends against human rights and democracy as „backsliding“ condition the Council of Europe responses against them, for instance? How does framing climate change primarily as a domestic concern shape the range of possible remedies while foreclosing some other alternatives? As part of our Frames project, Başak is organizing a conference this June that will address the very issue of how climate remedies are framed.

Jens T. Theilen: Thinking about this question in relation to migration brings me back to where we started the interview: using frames analysis or other critical traditions to interrogate fundamental assumptions underpinning the law, including human rights law. Almost two decades ago, B.S. Chimni said of refugee studies that “even when restrictive measures of Western states are criticized, what are validated are often particular philosophical and political ideas about what kind of boundaries western states may legislate” (p. 24). I think the same is true of human rights law, especially the ECtHR’s case-law: it sometimes intervenes in the regulation of migration on very narrow grounds, but simultaneously strengthens the foundations of violent European border regimes. By asking different questions than dominant doctrinal accounts, critical perspectives can engage with these dynamics.

Dear Jens, dear Esra, thank you so much for taking the time to participate in this interview! It has left me with a great deal of food for thought, and I hope it sparks our readers’ interest in frame theory and a more expansive critique within the context of the ECtHR.

Esra Demir-Gürsel & Jens T. Theilen: Thank you so much for your questions, Daniela!

The interview was conducted in written form between early March and mid-April 2025. The project “Framing Reality and Normativity in European Human Rights Law: Climate Change, Migration, and Authoritarianism” is funded by the Volkswagen Foundation.