In 1949, the ten countries determined to create a new, better system on the smoking ruins of the old world, signed the Treaty of London, bringing into existence an organisation known as the Council of Europe. The Second World War and the acts of Hitler’s regime shocked them and urged them to search for a mechanism to prevent the crimes they had witnessed from happening again. What they had in mind was a utopia born out of fear of the past, hope for the future, and trust in international law. Their enthusiasm carried them further, and soon after they came up with the European Convention on Human Rights that was supposed to safeguard their dream. As usually happens after global conflicts, the concept that a country’s internal affairs are its own business went out of fashion.
The Council of Europe, today counting 46 states among its members, proudly advertises its mission of upholding human rights, democracy, and the rule of law. In practical terms, the Council facilitates negotiations of treaties relevant to its declared purpose, monitors its members’ compliance with the above, and promotes various human rights initiatives. Its beating heart, however, is the European Court of Human Rights in Strasbourg, created specifically to examine the violations of the Convention. Its judgements are binding, which not only means that a transgressing state should change its ways and provide compensation for damages but also that others must incorporate the newly set precedents into their legal system. This creates an obvious problem when the Court’s opinion clashes with that of lawmakers.
An alternative?
A recent example of such a clash is Britain’s immigration policies. The issue of illegal immigration is among the most pressing for the country, as thousands of migrants arrive annually, predominating in entire boroughs. In 2022, the government presented the Rwanda asylum plan, according to which illegal immigrants would be sent to Rwanda for processing, which would have taken the burden off the British communities and served as a deterrent. The first seven asylum seekers were to be flown off in June 2022, but the European Court intervened on behalf of one of the men, ultimately causing the flight’s cancellation. As a result, the plan was put on halt.
This situation did not sit well with the UK Conservatives, who drafted a Human Rights Act reform, commonly known as a ‘new Bill of Rights,’ reminding the public that Britain already had an old and venerable tradition of the rule of law. The bill, currently awaiting the second reading in the Parliament, would strengthen the position of the UK Supreme Court and, as the Justice Secretary pointed out, “curb abuses of the system and inject a bit more common sense into human rights law.”
But that was not all. In March 2023, another bill was introduced to significantly reduce illegal migration. If it passes, the offenders’ presence will no longer be tolerated; regardless of their claims, they will be deported either home or to a safe third country and deprived of the right to enter the UK legally. They will also “no longer be able to frustrate removal attempts with late or spurious legal challenges or appeals,” which is a vital part of the law, which would cut through the red tape, saving time and public funds. It remains to be seen whether these measures will be effective if implemented, but the idea behind them is a good one.
Naturally, human rights organisations disagree. The bill is considered a dangerous example that other states keen on strict border control might be tempted to follow. The government is particularly wary of its European obligations. In the letter published by HuffPost UK, the Home Secretary estimated the likelihood of a breach of the ECHR to be around 50%. The question is, what would happen if there were indeed a disaccord? The Prime Minister indicated that it would be a valid reason for the UK to consider leaving the Convention.
The immigration issue is not the first controversy that had made Britain suspicious of the Strasbourg Court’s judgements. The largest previous dispute concerned the prisoners’ voting rights, beginning with the 2005 case of Hirst v United Kingdom (No 2) and ending twelve years later with an onerous compromise that enfranchised a small number of those released on temporary licence. This was yet another unsolicited intrusion by a progressive European institution into the long-standing legal practices of a sovereign nation, by then part of a new pattern.
The Convention was designed as a “living instrument” that was meant to reflect current conditions and society’s evolving needs. Thus, its interpretations have changed considerably since the 1950s, and it is unclear whether its original authors would have approved of the direction their brainchild has taken. Still, progressivism has been its built-in feature, and, over the years, the Court has produced many judgements influenced by the new social tendencies. Smith and Grady v. the UK (1999) deemed unlawful the discharge of two homosexuals from the Royal Air Force. Christine Goodwin v. the UK (2002) supported the legal recognition of the post-operative sex of a male-to-female transsexual. Sufi and Elmi v. the UK (2011) declared that the applicants cannot be deported back to Somalia since in their home area “an extreme version of Sharia law” was enforced and “there was a real risk that they would end up living in overcrowded refugee or IDP camps.” Vinter and Others v. the UK (2013) decreed that life sentences were considered inhuman and degrading treatment unless there was a possibility of release or review (all three applicants were convicted for multiple murders).
So what would happen if Britain decided to quit? Critics argue there might be major consequences. Firstly, everyone’s rights would be in danger, as no authority could override domestic institutions, thus protecting people from abuse. This is obviously not such a grave issue: to see a real difference made by the ECHR, one has to simply compare Canada and Turkey. Countries earnestly committed to protecting their citizens’ rights do so based on their own, usually centuries-old and well-developed legal traditions, compared to which the modern pan-European initiatives are superfluous at best. Countries prone to abuse or negligence will not be reformed by pretentious declarations and official papers.
The Strasbourg Court’s role in safeguarding the rights of Europeans should not be overestimated. While its impact on national laws and policies may be significant—provided, of course, that the country in question is treating its international obligations seriously—its ability to influence the lives of everyday people is minimal. The application procedure is far from simple, and the first step is to exhaust all domestic remedies. It is presumed that domestic courts will enforce the Convention, which, in turn, presupposes that its norms are already incorporated into the national legislation. The Court is left examining a tiny fraction of millions of cases going through the member states’ courts annually. In terms of pure numbers, between 1959 and 2022, it passed a total of 25,674 judgements. In 2022, there were 45,500 new applications, and the number of judgements was 1,163.
Secondly, there is concern about Britain’s place in the international system. The barely negotiated trade deal with the EU may be at risk of termination, and there are also some negative implications regarding the Good Friday Agreement of 1998. This is definitely a more serious risk. However, it does not directly follow that pulling out of the ECHR would in make this risk a reality—rather, this is used as a pressure tool for the EU.
Thirdly, there is a matter of setting an example. But where some see a problem, others may see hope for positive change. The issue of sovereignty is not unique to Britain. Would it not be for the best if her fight for national identity inspired others to rise against the supranational organisations dragging them into the progressive multicultural dystopia? As for international law, it would hardly suffer from the weakening of one regional institution. And as for the popular claim that Britain would not be able to call out abuses of countries like Russia and Belarus, a Conservative MP Simon Clarke summed it up perfectly on Twitter: “We also hear a lot about how leaving the ECHR would embolden our adversaries. With respect, I don’t believe Putin will be influenced in his madness by whether or not we subscribe to the Convention. Plus our actions to defend freedom are the ultimate measure of our values.”
When a passer-by wanders over the bridge at the end of the Avenue de l’Europe, walking away from the charming streets of old Strasbourg, he sets his eyes on a contemporary building of glass and stainless steel. Its two circular superstructures probably catch his attention. It is a symbol of new Europe: open, unintimidating, simple, but also prim and proper. It rejects the stately grandeur of classicism and embraces the modest efficiency that might just conceal its smugness. It leaves the past behind; the future is all that matters.
The founders of the Council of Europe saw the need for an international organisation dedicated to protecting human rights. But there were other options back then, and there surely are now. Human rights are guaranteed by a multitude of various conventions and treaties; all of them require goodwill and rely on domestic laws for implementation. They are in place to protect stable and healthy societies, not to debilitate governments or to force new controversial rulings upon unwilling nations. And if that happens, it is time to re-evaluate their necessity.
