Justice in the Balance: Can the Law Save Democracy?

and negotiated process and in some ways in tracking how it is people take up the language of law and what they have to include and what they wind up excluding and how that winds

“up being negotiated, we come to a new sense, I think of what political agency and political”

subjectivity looks like.

In the aftermath of the Second World War, the event 12 states of the Council of Europe came

together to sign a European convention of human rights on the ACHR. This was a commitment to uphold values and principles of human rights on European soil. In addition to the convention, the signature states came together to construct the European Court of Human Rights which was actually given and unhelpfully similar acronym. Based in Straussburg and consisting of one challenge feed to its now 46 signature states, the

European Court of Human Rights is a massive case from claimants all over Europe. The convention and associated legal mechanism of enforcement represent a strong commitment to keep European values, it protects freedom of speech, fit from expression, religion and

freedom from arbitrary imprisonment and torture.

“Its ruling is also underpin key domestic legislation for across the member states.”

In Britain, it is foundational to the 1998 Human Rights Act and by extension key treases such as the good Friday agreement. Recently, however, the Court has been criticized for its perceived overreach. This mission of ensuring the standards of the convention naturally contend with the idea of domestic sovereignty. Particularly in the British case, there are increasing courts to leave the ACHR

citing the constructed crisis of immigration as partially caused by the bureaucracy of the Court. On the other hand, those who claim that the ACHR can't possibly do enough in the face of the crisis that Europe currently faces. Russia was recently excluded from the Council of Europe by extension following its invasion of Ukraine. And one wonders if it's being already criticized for its overreach, but is already not matching

“the challenges of Europe what the world is left for the Court.”

With this going on in the background, it was a privilege to be joined for this episode by Professor Jessica Greenberg from the University of Illinois, but Greenberg has published lots of work on European international politics, most recently a fascinating new book on the Court, combining really rigorous legal work with a fascinating anthropological approach. In this discussion, we focus on the ethnography of the Professor Greenberg conducted over eight years

in the Court. We discussed the relationship of the Court to the perception of crisis throughout its history. How and why people continue to have faith in liberal institutions with such challenges that I have just mentioned and what the rising tide of opposition particularly in Britain could mean for the future of the European Court of Human Rights. I found Professor Greenberg fascinating to talk to on these issues and we hope that you find this

conversation as engaging as I did. From the Cambridge Centre for Governance and Human Rights, you're listening to the Declaration of Podcasts. My name is Ed Parker and I'm an M4 candidate in politics and international studies. I'm one of your hosts for this season nine of the podcast where we are looking at human rights in relation to the idea of the polychrysis, the idea that the human rights regime is facing

challenges from modernity that varying creates a perception of crisis that is greater than the sum of its parts. It's a great pleasure for this afternoon to be joined by Professor Jessica Greenberg from the University of Illinois. I'm just going to thank you very much for joining us. Thank you for having me. Professor Greenberg has just published a book, "Justices of the Violence Democracy at the Rule of Law and the European Court of Human Rights

to stand for the University of Press," which of course we very strongly recommend and we'll be linking in the show notes. This is a fascinating history and institutional ethnography as it's described in the preface that goes through the European Court of Human Rights as an institution, something that represents both the conscience but also an infrastructure for upholding human rights. It's a really interesting text that I'm looking forward to discussing further.

First of all, Jessica, congratulations on the book and thank you for studying over.

It was a really interesting to go through. My first question I suppose in relation to it is that it's a very personal account in many ways. It's based on a lot of interviews and ethnography it's not so much an institutional history in the dry kind of detached sense but it's very related to the time that you spend there. I suppose first of all, why did we draw into study the ECHR? What about the institution that made you want to spend that time doing the personal

ethnography of it? Yeah, absolutely. Thanks for the question. So it is, as you say, an institutional

and law more generally from the ground up. So the premise of an ethnographic approach,

methodologically is to really ask the question, how are legal principles and human rights principles lived and experienced? And how does that combination of the everyday life of an institution at the intersection of legal doctrine and normative commitments? But just the everyday material and

“embodied workings of a legal institution itself. How does that actually make the law?”

And what does that let us see about the work that human rights and legal institutions do above and beyond their formal normative or doctrinal effects, for example? And I was really interested in the idea of what does effectiveness mean for human rights institution from a ground up way, a ground up level? And that really echoes my earlier work, which gets back to your question of how I came to the European Court of Human Rights. And my earlier work really asked similar

questions about democratic institutions. So as I mentioned in the book, my first book, my first

ethnographic monograph was on democratic and student organizing in Serbia after the October 5th Revolution. And the question I ask in that book is essentially what does democracy mean from the ground up after a revolution? So for example, you're on the street, you know, for 10 years engaged in contentious forms of politics and protest and social movements in organizing and suddenly one day you wake up the day after a revolution and you're beautifully now in a

democratic order and how do actually build democratic practice at granular levels? And what kinds

“of effects, what kinds of disappointments, what kinds of imaginaries are entailed in that process?”

And I wanted to bring that same set of questions to thinking about human rights and legal institutions. And to back up just a little bit on why I was focused on law after having been a political anthropologist for so long. It was, you know, if you think about, for example, this is a bit of a canned history, but you think about the 20th century history of social justice

and political mobilization. People tend to think in terms of a revolutionary politics or regime

change, right, the sort of or organizing within the framework for example, a geopolitical order, a Cold War, and post- Cold War. And so you can really think about the history of social justice and social change, which is what I was effectively really interested in, in terms of those political categories. What happens really beginning in the 1990s is a bit of a shift. And, you know, again, with the end of the Cold War, the rise of what we think of as this sort of age of democratization,

the democratization industry, the rise of rule of law, as an organizing framework for social justice and social change, you begin to get the process that many people have talked about as judicialization or de-retification. Right, so contenders or political transformative or social justice projects take on board the law as a framework for thinking about future imaginaries of what life could and should be like. And so in my shift to the court, that was the shift that I was tracking.

And it came out of my empirical research in Serbia and in the Balkans noticing at, again, a very sort of everyday level, the way in which democratic politics began to shift into and through the language of human rights and law. So it was an opportunity for me to sort of track the changing contours and the changing, as you say, institutional infrastructures of contemporary social justice politics in Europe more broadly. So that is how I take the court. Yeah, that made some of

sense, I appreciate a state of the 20th century as much as anyone else. I like what you mentioned there about the rule of law becoming quite institutionalized because what I thought was really interesting about your book is seeing this institutionalization of legal processes, not so much or something that kind of makes them static and establishes the rule of law or something consistent,

“but actually as something that's continually contested, you have a phrase like I think judicial”

agency, how does that kind of differ in, in a specific approach from traditional ways of this, how you kind of bring out the agency within the institution whilst also recognizing kind of the power that the institution has to come to itself. Yeah, I think that's a great question. So one of the interventions that I wanted to make, and this is, you know, maybe a little bit more technical for folks that are interested in, for example, the sociology of institutions are thinking

as static, right, or as reified, or is very institution-y, right? I kind of play around with that a

little bit in the book. And I actually think there's a lot more flexibility and a lot more room for working with and through legal categories and legal forms, almost from the inside out, so that they can sort of stretch and grow in ways that can accommodate new kinds of visions, particularly

“within the human rights frame. And I think, you know, there's maybe no better evidence for that.”

There are, well, two pieces of evidence. One, I would say, is doctrinal, so sort of within the normative framework of the law. And one is more maybe a psychological or sociological. So this sort of doctrinal acknowledgement of the flexibility of the law itself would be something like the the European Convention system as a voluminant, right, or the idea of the living instrument, which is really central, obviously, to the way in which the court operates and the way in which

doctrinal and judicial interpretation works, not the only principle, but a really important and

powerful one. And I think that is an acknowledgement from institutional actors themselves

about the constraints and parameters, but also possibilities that the institution can grow and change in a death. And in fact, a good part of the legitimacy of the court and the convention system has precisely been its ability to grow and adapt to changing social conditions and legal

“norms, right? And I think if a human rights system can't grow, it's, it's not worth very much, right?”

And the fact that the court is born of a very particular historical moment, but has been able to accommodate massive transformations. Again, in the geopolitical order and our understanding of justice and law and technology and changing social norms, I think is itself a kind of legal or doctrinal piece of evidence about the flexibility of law, which in some ways pushes back against the idea of institutions that sort of forwall institutions as sort of heavy and fixed or heavily bureaucratic

from the top down. And so I think more is a sort of a very understanding of institutions.

Okay. So that's one. The second piece of evidence that I think helps us understand

what I ask in the book is how an institution becomes institution-y, how it comes to take on what feels like this enduring weight over time, and yet simultaneously be flexible and subject to change, is the sort of awesome brilliant and innovative ways in which human rights advocates and strategic litigators have been able to work within the institutional frames to stretch and grow it, again, from the inside out, right? So using legal cases, the linking and stretching of precedent

and legal cases or legal justifications for expansion of new evidentiary regimes, all sorts of practices like that, link social movements and law in really profound ways that I think are not exogenous, external to the core, but actually really part of its capacity or potentiality. Sometimes that that fires, and it also sometimes you hit a hard wall. There are certain aspects that are sort of unshakable in the foundations of the core, particularly around questions of sovereignty,

obviously, in the context of nation-state sovereignty and in the context of European integration. There are hard lines. It's not infinitely flexible, but that flexibility is intriguing to me as someone concerned with the role of law in long-term social change. Okay, that's really interesting. I think the stuff you get into particularly later in the book about strategic litigators is we've got quite technical quite quickly, so I think it was a little

smart at the moment, but I think maybe to put a sort of not as much counter-argument, but to test that a little bit, the idea that people are quite agentic in the way that they interact through the framework of the European Court of Human Rights, allowing strategic litigators to translate social ideas up into the language of the court, and then translating that process back into the language of social contestation. It does create a very clear feeling that there is agency

and that people are interacting with the court quite constructively, but it's also a sense in which

“that's actually quite a fairly rigid constraint that you have to be able, it has to be a”

cause that you can put through that language, and that to an extent limits who can interact with it, what outcomes are even conceivable. Is there an extent to which that agency is, if not,

Absolutely, I think that's a great point, and I think it really gets to the heart of one of the

the driving questions of the book, which in some ways is why would people engage with the law towards a vision of a more just future given the tremendous constraints of legal forms themselves, right? Why is the law continue to be a compelling way to advocate for visions of social change or justice that in many ways are much more expansive than the law, and yet people have to sort of forcing constraint and translate those goals, which is something I hope I answer throughout

the book through more concrete examination of different kinds of legal actors and why and how

“they engage with the book. I think just to zoom back out, one caveat or one maybe way to think”

about this is that anthropological notions of agency are a little bit different, for example, then perhaps in the political science or sociological traditions. So agency, as I think about it, and this is informed in part by training also in linguistic anthropology, when I think about agency,

it's always simultaneous with thinking about the constraints or conditions of possibility through

which any one's form of claims making, for example, might proceed. So of course, we all operate and work within language. We all understand in some ways not all of us, right? But many people, and certainly in the Euro Atlantic tradition, people understand somehow a relationship between the speaking subject, I am doing something in the world, right, in the language, which they're speaking that there's a sort of one to one. And we think of expressions of the agency as somehow

the ability to be efficacious in the world and to make our interests and desires sort of real or

“actionable or known in the world. That is a particular understanding of agency. I think that gives”

primacy to individual interests and individual actions. I think that's interesting. I think that's important. Certainly one more thinking about sort of strategic engagement and social justice or with the law. From an anthropological perspective, though, agency operates a little bit differently.

It is always expressed in and through language and terms and conditions that are only to echo

the social there's a vaccine that are always sort of half our own, right? So when advocacy or what we think of as efficacy in the world is channeled through shared communicative frames and categories, right, as it would be with any sort of epistemic community. As I talk about in the book, there's always a play between what it is someone thinks they're up to, right? And the way in which they have to shape the conditions for that action in ways that are going to exceed their

ability to sort of control it. So that might be a little bit abstract. But the simple takeaway is when we think about agency and relationship to law and language, it's not a one to one between I sort of want to do this and I'm going to do this and then I know if I have done it. It's a much more dialogueic and negotiated process. And in some ways in tracking how it is people take up the language of law and what they have to include and what they wind up excluding and how

that winds up being negotiated and just distributed across lots of different actors. We come to a

“new sense, I think of what political agency and political subjectivity looks like as it is”

practiced within a legal frame. And that's different as it be practiced. Yeah, I'm a sort of sense. Yeah, I suppose I've applied my terminally political science brain that you want anthropological approach to agency. But as for us, if we zoom out slightly, I would together a little bit more into these ideas of just girls sitting at works later on. But I think what's something that underpins your book a lot of the start and the end in particular is this idea of

crisis and the relationship of the court to crisis. Because on the one hand, it feels like the sudden exclusion of Russia and how it felt to deal with that situation is sort of like an existential threat to the framework of the ECHR. But only other you mentioned a few times in the book that actually this is something that came out of a perception of crisis in all the way through has kind of lived alongside what it perceives to be the kind of real threats. So how would you say your

space in the general? Yeah, it's it. Thank you. It's a very question I really like the framing of

“poly crisis too because I think it really forces us to think a lot about the way in which there's”

never one crisis, but there are also always spaces in which different perceptions or understandings

or experiences of crisis sort of overlap and intersect, right? And in some ways, crisis takes on a life of its own and it's difficult to sort of empirically get a handle around that. Yeah, for me, I think one of the the most interesting takeaways from the book was the way in which crisis often was not as much a threat to the system as a sort of generative engine or fuel for people to continue to invest in the idea of the importance of human rights and role of law. And I found that

really fascinating from the beginning of the research and I began the ethnographic and interview piece of the research in 2016. So it was shortly after what is now largely term that you know the migration crisis in Europe, although again, I have trouble with the way crisis is in vote in that context to get people's over the the enduring sort of history and colonial legacies of fortress era.

But regardless, and in that sense, politics, there's always a politics of how

crises are named and defined. But regardless, between the the question of migration, between obviously Brexit, there were a number of, and then of course leading up through COVID, there was never a time in some ways in which people weren't talking about the relationship

“of the court and the convention system in terms of of crisis, right? And in some sense, I think crisis”

becomes not really external to how people make sense of the role of law or human rights. It becomes part of the sort of war and of of of why people feel so committed and dedicated to it, right? Not just professionally, but also sometimes at an affective level. And so to be a little bit more concrete, I talk in the book in particularly in the conclusion about how you mentioned this moment in 2022 with with the full-scale invasion of Ukraine. And then the subsequent few

weeks in which it's unclear what will happen with Russia with respect to the council and then eventually Russian expulsion. And what happened? So I happened to be in Strasbourg during that period of time. And what had been really fascinating to me was I had been conducting interviews for a long time about the particular role that Russia played in the council and in the court, particularly because of you know questions of long-standing non-compliance and whatnot. And almost across the board

in my conversations, people from people at NGO community to people from the court or the diplomatic

community would say, look, it's always been a fraught relationship, but we think it's worth it.

Right? We're getting more out of this relationship. It's better to have them in there. Within the matter of, I mean, days, weeks, and and and again, because some of the interviewing the same people are people within the same milieu. People went from saying, oh, it's always been worth it, too. We always knew they didn't really fit. And it was always the case that they eventually were going to need to be expelled. Right? There was this moment in which what was a foundational

crisis, right? It shook the sort of very notion of the collaborative project that the ECH are really requires to work. And it went from, well, you know, it's complicated and we have to negotiate it to, no, in the face of this crisis, we're going to expel them. And what was interesting to me was the crisis. Again, as I said, didn't destabilize the faith in the system. It actually

“became a site for reenacting and re-performing and re-capitulating it. And I think to me, that's”

really indicative of the way in which a language of crisis, the question I framing question asking in the book is why do people come back to law despite a long history of its limits and its failures, right? Yeah, sure. And I think understanding crisis as internal rather than external to the illegitimating force of the system helps us understand that law is one way to respond to a sense of the disordering of the world, right? So if there's a crisis, we can respond to it

with more law. And I think it helps draw people back in to the commitment to the world that ought to be rather than maybe the world that is, if that makes sense. Yeah. If that was a drag,

now it's not a question, I think. But so it's ways in a way that's trying to tie this into

something that's supposed to be more concrete because saying that sort of people see all of these crises confronting the UCHR and the net work of international law, but it doesn't necessarily diminish the faith in the fact that those frameworks are the way to address them. So I suppose what would be the greatest existential threat to the workings of something like the UCHR would wouldn't be any particular crisis, but just a lack of faith in the institution as the way to go forward.

In Britain, for example, and I don't want to talk too much about the current right wing move to try and get Britain out of the UCHR because frankly, your book is more interesting than current

right wing British discourse, but I think there is probably a real low in Britain at the moment

in terms of faith and international organizations. It is not a threat that you see on the rise at the moment, because that's really where the threats can come from, like the lack of faith in institutional together. I mean, I think it's a really, I think it's a difficult trick, right? It's a sort of

“difficult balancing act, and I think the I think faith, the leap of faith, right, is really important here.”

In some ways, the the post-war 20th century system of both, you know, regional human rights core and international law itself was simultaneously a leap of faith, and it became the basis for actually building institutional practices and norms and communities from the ground up. And both of those things coexist, and this is why in the book, I talk about international human rights and the court itself as paradoxically, and at different moments in time, it feels really enduring,

it feels really institutionally, it feels like it's been a really last, and then at a moment, it feels as if suddenly it's all just built on clouds, and it's and it's going to fail. And I think

that that tension has always haunted international law and human rights laws well, but what I think

“as you, you know, serve as so then what's the biggest threat? I mean, I think the biggest threat”

is people's disinvestment, and in some ways disbelief in the capacity of this system to affect some kind of meaningful change, and it can be very frightening and very destabilizing, and I am certainly living through it right now in the US, and I think many people are across the globe in different contexts that when suddenly someone decides they're no longer going to play by the rules of the game, the rules of the game are revealed in some ways to be what they are, which is a social

fiction, which is not to say that a social fiction isn't a meaningful set of institutional practices and moral and ethical commitments, right? I think all human sociality in some ways is a social fiction, right? But at the point at which people disinvest from the willingness to commit to it, right? That's a point when something goes from crisis as generative, right? Crisis is okay. We're going to respond to this and we're going to respond to it by making our institutions better and

more responsive and you build, right? At the point when it goes from that commitment to a a profound disinvestment in the very idea, for example, of justice at all, that to me is a very different order crisis, sort of existential, entologically, epistemologically, whatever, then the idea that there are threats to the system. And I do think that I get at that moment. Yeah, because I think I am seeing, again, in my slightly myopic British lens, I've seen more and more of that belief that

we shouldn't care about justice and in international level, we should care about justice, for British people, based on British Bill of Rights, right? They kind of separated. But the question that I suppose is where does the kind of the energy to rebuild that faith come from and it is navigating this what you might call kind of, not if not post-liberalism, then kind of late-stage liberalism, something that can be done and should be done through these institutions,

“where does the kind of rebuilding happen, I suppose? Yeah, I think it's a really important”

question and I don't know that I have all the answers. You know, it was my hope in this book that I have some small, empirically grounded contribution to thinking about why and how we could build institutions or post-liberal order or more expansive notion of justice at scale, right, that we could use institutional frameworks to enact and protect. I think for me, the answer to that

example, law and democracy or law and politics? And I think it's really interesting because, of course,

from a strictly legal perspective and certainly from the perspective of, for example, the court, right, as a judicial body, rather than it's sort of the executive function of the convention system itself, it's important to draw a distinction between law and politics because legal legitimacy, of course, rests on precisely that distinction and the rule of law does as well.

“But I think that's different from saying that all legal systems require some sort of social”

commitment, right, a founding, a constitutive moment. And of course, the convention system is new enough that we can look back to the historical record and in recent memories say, there was a constitutive foundational moment to say, these are the shared values that we want to enact. And we are willing to shift our relationship, for example, to solve our nation-state sovereignty, a enough that we will, we will found this system together. And then at some point that system

becomes binding, right, it's sort of, there's a sort of, it becomes more than the sum of its parts. I think we're at a moment, particularly, for those committed to rule of law and the democratic order, and certainly in the European context about which I've written for a very long time, where we require not technocratic or legal responses to the crisis of democratic legitimacy, we require these sort of democratic political and social commitment to refound,

to refound a legal order that we can believe in. And hopefully one more expansive than the order

“that came before. And I think that that's a very heavy thing to say, but honestly,”

I think it's a very pragmatic and practical way to think about politics, not as reactive, not as technocratic, right, not as zero sum. But to take a cue and lesson from a lot of the existing social movements across the globe right now, that asks, what should the shared constitutive basis of an equitable politics look like, right, and we have to build that from the ground up. So, as an example in the QS right now, as we face across scales, right, at the regional level,

certainly obviously at the federal level, at the judicial level, the legislative of profound or crisis of democratic consensus in this country, right, and the politics of equity. So, way people are responding to that is very, it's very local, right, it's at universities, it's in community organizations, it's in immigrants, rights movements, it's in anti-carsero politics, it's in a racial justice project, and it begins with people face-to-face saying,

we are going to make a commitment to a certain set of values and a certain set of processes and procedures. That is how democracy as a constituent process happens, and that is how frankly human rights,

“I think happened in the institutional ramp. And so, I think for me, taking hold and here,”

you know, I'm sort of more ground she than anybody else, right, taking hold of the conditions by which we build a consensus from the ground up meaningfully, is not all that different in refounding and international human rights order than it is in refounding a sort of democratic order, and I think every time people commit to those principles and enact them and build them

institutionally, those are the building blocks, right, that we need. The problem is twofold from

my perspective. One is the question of how long it takes. And one of the lessons I took away from the research at the core, and again, by observing strategic litigators, particularly, and human rights advocates, is that the temporality of social change in particular, social change through law is multigenerational. And I don't think we live in a world in which people are entirely socialized to that temporality of politics, right, particularly in places where

we've had the privilege to feel like the world reflects our needs and desires in very immediate

kinds of ways. The second issue is a think of more, I don't know, maybe substantive issue,

which is how do you get local to scale? So you and I can sit together at a community organization and say, you know, it's really important that we enact new principles of justice and rights,

actually scale in any kind of global way? Which is urgent, especially for problems like climate change, right, which require coordination at scale. And here's where I think an institution like

“the European Court of Human Rights or the Convention System is really important. I think it gives”

us a model. As many international legal institutions do, I think it gives us a model for thinking about how you take iterative building blocks of social change over time, one by one, that people can sort of commit to from the inside out and scale them in ways that allow for coordination. And that to me is one of the enduring and most fascinating lessons of why I think judicialization has happened in the way it has. I think people as they felt disenchanted from the sort of capacity

of politics to affect change at scale turn to law to do the same thing. And I think that's interesting to think where. Yeah, I think that's an interesting point about temporality at the end of about how people lost faith in law to sort of lost faith in politics to keep up with the

change that they thought they needed and that kind of incredibly fluid period after the second

of all that. That's make sense that there would be a new kind of system. I suppose one way of looking at the challenges that the ECHR faces in 2010 to the 2020s is again the rate of change and the rate of international change is only accelerating with climate change and all of these various factors that you mentioned in your answer to the last question. So even if the ECHR was innovative and dynamic way to deal with the changing system in the 50s and 40s, are we changing

in a different scale in a different speed in a different way in the 2020s that mean that the same tool in institutions isn't really going to keep up with that. I mean that's also

“much a question as a nihilistic statement I suppose. I think it's nihilistic. I think it's important”

and I think it points to a fundamental fact that I think I also try to hope to show in the book in part by thinking about the core and the convention system in relationship to both it's sort of big on and political or advocacy dimensions which is the laws not enough, right? It's perhaps necessary but not sufficient. And I think again because I don't want to romanticize it by any any shape or form and any these are institutions that they sort of form a human rights advocacy

perspective they give and they take away, right? And they're often intended consequences. I think you can look to the case law for example on migration, right, or reform up as a really important way where you know the Hawkeyes and it takes away. It's not only a story of progress by any means if you know from sort of human rights perspective, progressive human rights perspective.

“Yeah I think that's right. But I also think it's important to remember that”

there are always multiple temporalities for thinking about law and democracy and rule of law

and they operate sometimes in nested ways, sometimes contradictory and sometimes sort of simultaneously one along and other, right? And one of the things I try to write about in the book I mean it was always fascinating to me to talk to people who've been involved in human rights advocacy in particularly with and through the court or the execution system and you know the more executive functions of the court or of the council system and implementation, it was always really interesting to me to talk,

talk to them about here, then talk about time and how their relationship to time and the expectations of time have changed. And I write a lot about that in the book the way that people, you know,

understand that the law is not going to have a revolutionary time frame, right? It's not going

to move with the speed sometimes even of a kind of a human life which can be really devastating obviously for applicants and those people that represent them. But that having some sort of architecture infrastructure to be able to just keep certain issues alive over time, keep them going, keep some sort of well keep some sort of again in some ways tentative hope for a possibility alive through the legal system, they came a kind of anchor or grounds for people to be able to move much more quickly

when they could when political opportunities arose. And so I think yes, you're absolutely right, the span or the temporality of legal institution by design will not keep pace with the experience for example of crisis even with interim measures, right? The experience of crisis. But if you think about temporality, again, not as a zero-sum game but as a multi-faceted set of strategies and

advocacy resource or a legal resource that doesn't have to be everything because it's enough for it

to anchor one part of that of a strategy. You're right, okay, that makes sense. So it doesn't need to keep up with all of the crises and every aspect of temporality but needs to be sent to the movie in certain directions. That makes sort of sense. I'd like to actually dig into that idea of migration and immigration that you mentioned, momentarily in the last answer because I'd probably see that as the dimension of DCHR that is most undermining this idea of consensus

and kind of critiquing with care that you talk about is a really important necessary condition for good international engagement with the system. In Britain in particular, the reason that

the DCHR is always in the news is so constructed as a kind of bogeyman to British sovereignty

is the idea that it's restricting how we can deal with immigration which is obviously slightly experienced in and of itself. But what is the relationship of the courts to migration and immigration policy at the moment is you see it and is that really a big threat to this idea of

“consensus as a particularly divisive issue? Yeah, I think this is probably, this is probably the hardest”

issue both the court faces but also for people who want the court to be the best version of itself. This is perhaps the area of certainly for me, the most profound disappointment. This and and some of the discrimination and racial justice claims that come through, for example, 14, but I think in with regard to immigration migration, this is where some of the constitutive contradictions of the entire ECHR system really hit up against the limits of

what a regional human rights framework can do. And I write in the book about, you know, and other many other people have written about this, you know, in so far as for the convention system history begins after the Second World War and and responsibility and legal responsibility is sort of codified in relationship to the war and then the threat of fascism and of course the

emerging Cold War dynamics. And always institutionally left the colonial legacy off the table

and again lots of folks have had written about this in really important ways. I do wonder my most skeptical is up wonders the extent to which. So in the absence of, for example, think about as I was going, you know, saying before the 2015 migration crisis, right? There's a way in which we can think about the technical management of that, you know, so called crisis as being about the procedural technical ways in which we might be able to manage, you know, mass of flows of

folks and, and, and with, you know, and balance those with the, the sort of limits to how far the court is willing to push on sort of the sovereign nation states, policies around securitization and around migration and around bordering, right? So if we think of that as a

“sort of contemporary technical problem, I think the court is always going to be very, very limited”

and it's very going to be very, very self-intentionally. I just think the case log there is that out. I think there have been some sort of human rights gains along the margins, particularly in thinking about positive obligations and thinking about certain of, of an actual standards and thinking about burden of proof. I mean, there are, there are some gains there. And in recent cases as well. But if we were to draw back and ask, you know,

how would contemporary, you know, to what extent could, could, would contemporary Europe and European nation states be held accountable or responsible for the legacies of the kind of colonial

“balance or extractive policies or divide and and conquer mandate policies talking about, right?”

That are at the heart of so many contemporary global conflicts that are of course driving migration, right? I don't see this institution as an institution that necessarily will be able to

increasingly there are pushes for, there's a push for things like thinking about reparations,

right, through the legal system in the, in the, in the, in the German system right in to lesser extent, but certainly it could be a margin in, in the French context. I mean, I do think we're getting around to the point where law and international law will accommodate increasingly of vocabulary for thinking about the long tail of colonial violence within the European context. I am not entirely, yeah, I'm not entirely convinced that that's in the cards anytime for

“the European Party. Right? And again, to return back to your question, I think migration becomes”

the witness for that. If you go back and you look at cases and the way of which they're increasingly being perceived or lies, particularly around, you know, a collective expulsion, you are for a protocol for, the responses are really about substantive justice, the responses are about

procedural guarantees. And that's, and that's never going to be a patient's vision for European

accountability or North American accountability, right, thinking about the US case, right, for for the long history of colonial racial formations. Yeah. Yeah, I mean, I think they're looking at meaningful progressive interpretations on history that it's difficult to see how you can challenge channel those through the DCHR. And I think similarly immigration is a, I mean, difficult one to imagine a kind of constructive human rights-based solution, achieving that degree of consensus

“that you talked about being so important. I think that, as I said, the British discourse about”

the DCHR is sort of all about that. I suppose the, it raises the really difficult question, that you mentioned throughout the, these ideas of contrast, not so much contradictory ideas, but contrasting ideas that run through that, on the one hand, it's imperfect and it's deeply

flawed in many ways, but there's this kind of essential idea that it's better to be in than

out, and it does more good than harm, and that's kind of the bottom line a lot of the time. There's this sort of comma appointed which if we need to pursue this consensus, it's kind of so far that that almost isn't isn't really true anymore. If you're saying it isn't compatible with a meaningfully accountable view of colonial extraction, if it isn't compatible with a meaningfully human rights-based approach to immigration, do we sort of lose the point at which it's still

“better to be in than out, and it's still three more harm than gives? I mean, yeah, and I think I,”

I think I, I couldn't tell you exactly what that point is, but I think it's the great question, you know, as I was saying earlier, I think if we're going to come to some better collective understanding of what a, a practicable, but also meaningful and, and expansion of justice looks like, we need to take your question and think maybe not about can our existing institutions necessarily accommodate that, but how do we create a meaningful space for conversation in which we can actually

collectively and democratically, you know, come to some sort of consensus or understanding about that, and that's where I think democracy and law have to be more, you know, more in tandem, I think, you know, one of as I said, in the, in the preface, one of the reasons I wrote this book and wanted to do this research at the core as a sort of, you know, exemplary liberal institution, and rule of law institution, that shows both the, the hopes and promises, but also the, the

deep erasures and minutes, right, of a liberal order was to ask the question you're asking in a very pragmatic way and say if it is now the case that this payoff is no longer worth that, right, this balance, these compromises have now become complicity to an extent where this is no longer worth that we need something new and we need something other, and I think there's a global cry for, you know, for a good and ill, I think it happens on the right in the left. There's a sort of global

cry for, we, this isn't working, we need something else, but we need to go to institutions like the convention system or the regional human rights systems and say, what is it about these

for, you know, deriving norms, for having people commit, again and again, even though it's

difficult for thinking about the temporary agent, what can we take with us as we rebuild institutions in the world we want to have rather than just have that be a utopian project, it needs to be comfortable, right? Again, you know, your crowd, she's sort of, you know, optimism

“of the, of the way, you know, the sort of optimism pessimism nexus, right? I think we have a lot”

to, from legal institutions and international legal institutions and again, you know, I would turn to, I don't think, you know, when South Africa spearheaded the case at ICJ on the genocide in Gaza, this is not a naive move, right? This is not a group of people who in any way shape or form are naive about the limits of international law to infection and violence, right? It was a part of a larger project that I, as I see it, and I don't want to speak for, you know, other people, but as

I understand it, as I experience it, it's a part of a larger project to wed utopian pragmatism in a way that allows us to try to use legal institutions to hold people or nations to account while also highlighting the limits of the systems I offer. And that's very powerful. If legal institutions, international law or human rights law does nothing but that, gosh, it's actually done something really important. And so I guess, yeah, I don't know when to say it's enough,

or it's not enough other than to say, I still think it's worth engaging and asking and pushing

“to really think about what it does do, you know? Yeah, I think that's sort of uplifting in a sense”

that there is a baseline tangible value that we can always kind of hold it to and expect from it.

I suppose that by final question members, but before I ask you to, what we're trying to kind of bring this together, would be just to think for a moment about the relationship between the the ECHR as a regional human rights body and the scale of international and archic global politics where the U.S. is stepping back China's rising Russia's invading Europe and the crisis in the Middle East sort of scene is intractable. I mean, in danger of getting even more negative, I don't know

what's about it. Yeah, I'm trying to keep this positive, you keep dragging me down. Yeah, I'll give you an opportunity to finish on something positive in a moment. Yeah. How do you think something like the ECHR kind of relates to Europe's role in the world more broadly, because it's obviously this is about protecting the rights of citizens on ECHR territory and within the ECHR kind of members states. But does the system as it exists in Europe kind of relate to the

the role of European states in the world more broadly or is that speculating too much? No, I don't think it's speculating. I think there are a couple different ways I would approach this question and so a little bit more thinking about the geopolitics and European integration and as somebody who's been doing European studies for quite a while, I would say that I think in some ways this institution, European court of human rights, the convention system,

the council is an important institutionally, it's not it's not going anywhere, it's a sort of institutional reminder of the best possible version of European democracy as it might be imagined,

“right? And I think it's important and again, it's not romantic. I don't want to”

pull in. There's a lot about the institution and the judgements that I disagree with and if you want to sort of, it folks have said it would work sort of more normatively with the case law

that I'm surprisingly not critical enough and I think very critical of a lot of the case

law, but I'm much more interested again in the ethnographic understanding of the non-legal work or extra legal work that legal norms do, right? So in an idealistic sense I would say, you know, perhaps it can be a reminder of as a sort of watchdog of of what those values and principles could be. I also think it's really, really important to remember that narratives about European

democratic principles were born and therefore sort of flourish, right? Is part of a long term

ideology, right? That was foundational both to this court and it's founding and to the European Union and to notions of sort of a long term, again, European racial formation.

“And so in fact I think it's really, it's not necessarily bad to put this court in some sort of”

comparative context and look very concretely at the benefits and the compromises and the struggles and frankly the pluralism of a lot of aspects of European human rights law. And I talk in the book, there's a very famous and many of the listeners will know where work,

anthropologists, human rights, salient, or married, who writes about the vernacularization of human

rights law. And this is sort of the idea for a put so much simply but the idea that human rights principles as they sort of move and are taken up across the globe, people take them and adopt them and translate them into ways that are meaningful. And in some ways make those rights more expansive and give them a sort of life of their own. And it's a way to push back against the sort of top-down tension between particularism and universalism. And one of the things I argue in the book

is that European human rights law is no less brutal and no less vernacular, right? Or there's also a process of vernacularization. And we have to bring a European studies or an anthropology

of your perspective to those principles to show how what we always thought was universal or gets

projected out as universal is also deeply particular. And so that's again a long-run way to

“answer your question, which is to say, I think it's not just okay that it's not perfect. It's never”

been perfect. And being having a sort of sober analytic purchase on the particularities, the imperfections allows us to say, okay, what, how do we, what more do we want? How can something like Europe, if European human rights law, right, isn't some ways profoundly contextual, located, burpial and perfect, needs to be historicized, need to be needs to be utilized, all of the above, right? Then that also means that it's subject to change, right? It's subject to intervention.

It can be an object that people of sort of collective work, right? So I guess I would say there's a big move in, you know, various strands of European studies, the anthropology of Europe to do with the Petrocoporticals, provincialized Europe. Yeah, I was going to paint that up. Yeah, so maybe we wanted to, yeah, the answers to your question is, let's provincialize European human rights and put it in conversation with other human rights systems, regional or otherwise and

other sort of aspirational visions of what justice could look like and come up with something better than what, what, what there was before. So, that's more positive than that. I'm trying here. I appreciate that. I know I really appreciate that. I have a tendency in these, these interviews to potentially take it down a more negative line, so I appreciate that. I suppose the final question that we covered a lot of grounds and again, I appreciate your patience with my more

open-ended lines of questioning. But something you mentioned at the very beginning then was that your book really hinges on this idea of effectiveness and what was effectiveness look like and what is it as a normative and an institutional frame. So with all of the various directions we've been in as opposed as a final question. Do you sort of see a DC scope for a genuinely effective European call of human rights in the next five, ten, fifteen years? How do you sort of see it's

positioned now and how effective it can and could contribute to the need to be? Yeah, absolutely.

“I do. And I think again, the answer to your question. I mean, I always my 18-year-old son will”

often ask me questions and then even before I open the mouth, he'll say, "I know, I know Mom, it's more complex than Mom." Right? So, you know, a portion being raised by a couple of soldiers, I just, um, I really do think that we need a more heterogeneous notion of what it means to be effective. And if we take the core and the convention system and we use the method of institutional

think about what it means to be effective and different ways to use the law within the system itself,

again, still even thinking about it as a normative space, right? Even within normativity, there's

“a lot of multiplicity, which I think is an important takeaway and lots of different forms of agency”

as we were talking about before. I think if we approach the system and ask, "No, what does it mean to be effective?" But what are different ways of thinking about effectiveness from different stakeholder perspectives? Then absolutely, right? One of the things that I found most interesting and exciting and researching the book, and I write about this in chapter four

one, I think about the role of sort of numbers and how numbers work as a communicative frame

and organizing frame within the system, is that there's now much more emphasis on implementation and follow on the cases once violations are found. And I think that's been a really innovative and more and more people are writing and researching it in really interesting

“empirical ways. And I think that's an example where people were really a lot of folks were turning”

their wheels and frustration that judgments were produced and judgments were produced and yet things didn't seem to change because it felt like there was no follow-through. And increasingly, from the executions and community of ministers perspective, again, not a perfect system, but I think the commitment to actually think about the limits of the legal arm in the form of a judgment and the possibilities of the sort of implementation arm as a more policy-forward way

of thinking about making a meaningful human rights. It's a really good example of how the metrics for effectiveness have shifted. Now, of course, there's lots of known compliance, you know, and that's really, that is another one of these areas where people talk about crisis, right? The crisis is not on compliance. There's a lot of complaints too. Sometimes it's letter of the law, not spirit of the law. But nonetheless, thinking about human rights as an integrated

system across different scales and spaces of, you know, of judicial interpretation, to implementation, to media strategies, to national human rights councils, to, you know, constitutional legislative

“responses. If we think about it more holistically, then I think there's much more space for thinking”

about what effectiveness looks like. And so I find that interesting, again, social scientifically empirically, to expand the categories on offer about how we imagine how we imagine law works beyond

sort of the story that law always tell you to make tell us about how works are doesn't work.

Nice. I like that as a relation by it rounds off the conversation as well. It's a really interesting sort of future lines of inquiry, so I appreciate that. To reiterate, then, if you've made it this far in the podcast, I would reiterate that Professor Jessica Greenberg's book just as is in the balance, democracy, rule of law, and the European Court of Rights is officially coming with the declarations down for the approval coming to a book. Thank you very much. Professor Greenberg for a really

interesting conversation. I really appreciate the time you're taking the stuff. Thank you. Yeah, thank you so much for your thoughtful questions and I really enjoyed it. Thanks very much for joining us and we'll be back next week with another exploration of the polychrysis of human rights. Thank you so much for joining us and we'll see you soon. Thank you very much for listening to this episode of the declarations podcast and thank you again,

very much to Professor Jessica Greenberg for her fascinating contributions. Her book will be linked in the show notes and you can't recommend it strongly enough. Join us again next week by another member of the declarations team. We'll be exploring another aspect of the polychrysis of human rights within other learning of the guests. In the meantime, I've been at Parkour and You've been listening to the declarations podcast from the Cambridge Centre for Governance and Human Rights. Goodbye.

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