The role of judges of the European Court of Human Rights as guardians of fundamental rights of the individual

David Thór Björgvinsson, Professor of law at the Centre of Excellence for International Courts (iCourts) and former Judge of the European Court of Human Rights. This chapter argues that as a reaction to the criticism the ECtHR is adapting its judicial policy or judicial tactics by retreating from its earlier more assertive position as concerns the protection of human rights. This puts into focus questions relating to the role of judges at the Court as guardians of fundamental rights of the individual who must seek to find balance between views asserting human rights as universal rights on one hand and relative rights emphasizing pluralism, deference to national standards and fragmentation on the other. Too much emphasis on the latter to enhance the Court´s legitimatization in the eyes of the judicial and political professions in the Contracting States may put the Court´s “moral capital” at risk and thus weaken it claim to legitimacy on the societal level.