"Shift from democratic rule to the rule of jurists"

The landscape of international law has undergone significant changes over the past few decades, with the courts of the European Union (EU) and the Council of Europe standing out as the most prominent examples. This shift has not come without controversy, as the growing power of these courts has sparked debates about their impact on the democratic process.

One of the most contentious issues is the increasing conflict between EU member states' governments and EU institutions, particularly in light of the courts' expanding influence. The European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) have been at the forefront of this trend, with their rulings often clashing with the policies of individual governments.

The ECtHR, for instance, has been a subject of contention in Switzerland. Between 1985 and 2020, the number of international courts more than tripled, and the ECtHR has been at the centre of several high-profile cases. In April 2024, the ECtHR ruled that Switzerland had violated human rights due to insufficient climate protection measures, marking the first time the court declared climate protection a human right. However, this verdict was met with criticism from the Swiss parliament, which labelled it as "judicial activism."

The Climate Seniors Switzerland and their allies are expected to complain again to the ECtHR, claiming that the Swiss government's response to the ruling has been inadequate. This ongoing saga highlights the potential for special interest groups to instrumentalize the power of the judges to promote their agendas, often against the will of the majority of voters.

Alexis de Tocqueville, a French political thinker, predicted in 1835 that political questions would turn into judicial questions, a prophecy that has proven true in the second half of the 20th century and beyond. This global phenomenon has raised concerns about the undermining of trust in democracies and the growth of populist parties and movements.

The ECJ, too, has been a subject of debate. Some argue that the ECJ's treatment of European treaties as a constitution erodes the democratic process, as it gives the court significant power to interpret and shape EU laws. Moreover, it is important to note that neither the ECtHR nor the ECJ have executive powers and cannot impose sanctions.

National constitutions now protect an average of 48 rights, many of which are justiciable. This shift towards a more litigious society has led to a rise in the number of cases brought before international courts. However, without changes to these agreements, the will of the citizens in countries around Europe will continue to be largely ignored, and the dilemma will continue unabated as no solution to resolve challenges such as illegal migration is permitted by courts.

In conclusion, the growing power of international courts has led to a complex web of conflicts between governments and institutions. While these courts play a crucial role in upholding human rights and enforcing international law, it is essential to ensure that their power does not undermine the democratic process and the will of the people.