Is international law a safeguard against authoritarian drift?
International law and liberal democracy are bound together by a relationship of structural reciprocity. Far from constituting a constraint on State sovereignty, as illiberal rhetoric claims, compliance with international law and the jurisdiction of international courts is a prerequisite for preserving democracy itself. Challenging them simultaneously weakens the normative foundations that protect democracy from within. However, these safeguards must be genuinely capable of operating in the face of a government determined to disregard them.
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About the research papers
Luxembourg is firmly rooted in a network of international commitments. As a founding member of the Council of Europe and the European Union, it benefits from supranational protection mechanisms whose robustness is generally taken for granted.
But what would happen if a government decided to disregard them? Would international law then constitute a genuine safeguard against authoritarian drift, or is it subject to limitations that reduce its practical effectiveness?
The first theme of the Stress Test of Democratic Institutions examines this issue through three complementary research projects addressing the following fundamental questions:
- to what extent can the European courts, namely the Court of Justice of the European Union and the European Court of Human Rights, serve as instruments of external protection, and under what conditions do their mechanisms exert effective constraints on a State that deviates from the standards of the rule of law?
- what safeguards does international law provide against infringements of fundamental rights and the rule of law within the Luxembourg legal system?
- what are its limitations when faced with a government or legislature determined to circumvent them?
- what is their practical effectiveness, or their capacity to be invoked by judicial and institutional actors to prevent measures that undermine fundamental freedoms?
Summary of the three research papers
- The Court of Justice of the European Union, as guardian of the rule of law within the scope of European Union law, has a powerful body of case law at its disposal, particularly for safeguarding judicial independence. However, its intervention remains conditional on the activation of procedures by the national courts and the Commission, and it sanctions only the effects of illiberal drift on the functioning of European Union law, rather than the illiberal drift itself.
- The European Court of Human Rights, for its part, provides a valuable external safeguard, independent of national political dynamics, protecting judicial independence, institutional checks and balances, and civil society alike. Its effectiveness nevertheless faces a paradox. It presupposes that domestic remedies have not already been rendered ineffective and that States retain at least a minimum willingness to comply with its judgments.
- At national level, Luxembourg's monist tradition, which enshrines the primacy of international law over all domestic norms, including constitutional provisions, constitutes a particularly favourable framework. The courts and the Council of State have genuine powers to prevent legislation that undermines fundamental freedoms. However, these institutions are not immune to deliberate weakening. Indeed, targeted legislative amendments could substantially curtail their authority.
Effectiveness depends on the willingness of the stakeholders
These three analyses converge on one essential conclusion: the safeguards exist, but their effectiveness depends on the willingness of those involved to invoke them, and also their ability to do so before an authoritarian regime has had time to neutralise them. The very slowness of judicial proceedings provides precisely the window of opportunity needed by governments determined to consolidate their grip.
