Proving Bad Faith in International Law: Lessons from the Article 18 Case law of the European Court of Human Rights

Abstract

The aim of this chapter is to analyse the ECtHR’s evolving bad faith jurisprudence against this backdrop of the difficulties associated with proving bad faith violations in international law. By way of a close reading of the case law of the European Court of Human Rights between 2004, when it found its first bad faith violation until 2019, the chapter investigates how the Court has come to treat good faith as a rebuttable presumption, how the secondary rules of evidence concerning bad faith violations have developed in the case law of the Court over time, and the consequences of these developments for the primary rule provided in Article 18 of the Convention. The Chapter argues that the development of secondary rules of evidence to prove bad faith violations of the Convention are closely interrelated with the recent developments in the interpretation of primary rules of the Convention under Article 18. The ECtHR’s bad faith case law has, over time, evolved away from a direct and subjective evidence paradigm to a circumstantial and indirect evidence paradigm. At the same time, the substantive interpretation of Article 18 of the Convention, too evolved, to signal that the use of domestic laws and judicial proceedings in the service of anti rule of law and anti-democratic agendas constitutes a violation of the Convention. These developments make the ECtHR an avant -garde adjudicatory body in developing secondary rules of evidence for deciding whether states violate their international law obligations in bad faith.