The new sovereigntism: what it means for human rights law in the UK

Cross-posted from LSE Brexit Blog

For many people, Brexit is about taking back ‘control’; about determining for ‘ourselves’ what the law is, how it applies, how we spend our money, and how we develop our policies. The fact that many people both before the referendum and now struggle to identify with accuracy an area of law or policy in which the EU has ‘taken’ control (and not had competence ceded or shared through a Treaty change ratified by the UK) is irrelevant; what matters is the perception of a lack of national autonomy, and an associated corrosion of domestic democratic control.

Deep within at least parts of the arguments that circulate around Brexit is a form of new sovereigntism that is deeply worrying to the rule of law. The UK is hardly alone in this phenomenon; as far back as 2000 Peter Spiro wrote about the emergence of new sovereigntism in the United States; about a group of scholars and intellectuals who were not opposed to international law per se, but who thought that the US should be able to engage with it as and when it wanted to. In other words, these scholars promoted an a la carte approach to international law, underpinned by a “brand of anti-internationalism [that] runs deep in the American political tradition”. Continue reading The new sovereigntism: what it means for human rights law in the UK

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The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

The Joint Committee on Human Rights has now published all of the written evidence it received about the proposed derogations by the UK from the ECHR in situations of conflict abroad. My submission is available here, and the executive summary is as follows: Continue reading The JCHR Enquiry on Derogation from the ECHR: My Written Evidence

Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?

The final version of new article, written with Kanstantsin Dzehtsiarou, is now published in the International and Comparative Law Quarterly. The article, entitled (rather pessimistically) “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”, picks up on a recent proposal that Article 46(4) of the ECHR would be used to address non-execution. This allows the Committee of Ministers to refer a case back to the Court in the case of non-execution by the contracting state. In short, we argue that such an approach is misguided on three grounds: practicality, futility, and backlash. Fundamentally, we say, the proposed solution does not ‘fit’ the problem of non-execution properly understood. Continue reading Can infringement proceedings ‘solve’ the ECtHR’s non-execution problem?

New article on non-execution of ECtHR judgments

In 2015, Klaas de Vries prepared a PACE report on the implementation of ECtHR judgments in the contracting parties. In it, he suggested that Article 46(4) of the Convention–the infringement proceeding–could usefully be turned to in order to address non-execution. This provision, which has never been used, provides:

If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1.

The release of that report prompted me and Kanstantsin Dzehtsiarou (Liverpool) to reflect on the potential usefulness of Article 46(4) and, indeed, the dynamics of non-execution per se. The result of that is a paper forthcoming in 2017 in the International and Comparative Law Quarterly. The paper’s title (at least for now, but we think we will stick with it) is “Mission Impossible? Addressing Non-Execution through Infringement Proceedings in the European Court of Human Rights”. In the paper, we focus on what we deem ‘principled non-execution’ and ‘dilatory non-execution’:

It is essential that any attempt to seriously address non-execution would recognise the dynamics and reasons for non-execution. It is only once the root causes have been identified and considered that solutions can be devised or, indeed, that the insoluble nature of some challenges can be recognised. Thus, we propose here that non-simple non-execution can be broadly said to fall into two categories: principled non-execution and dilatory non-execution. The former can be said to relate to cases where states refuse to execute because of a deep-seated disagreement not only with the outcome but, perhaps more significantly, with the principle of an international court’s decision ‘overturning’ a domestic, democratically arrived at position in respect of a particular matter. There are very few instances of this type of non-execution, which is ultimately related to the fact that disagreement about human rights and about the meaning of a human rights treaty is possible, even when parties truly believe in and are committed to the protection of human rights. The latter relate to cases where States are generally dilatory in their execution of adverse judgments from the Court, so that individual cases of non-execution might be connected to this general pattern of resistance to giving effect to the outcome of international judicial supervision in the area of rights. The vast majority of cases of non-execution would fall into this broadly defined category. Importantly, the same State might well be a principled non-executor in some cases and a dilatory one in others.

Building on this distinction we go on to argue that resorting to the Court to address and resolve non-execution is impractical, futile, and likely to attract backlash. Both common sense and a critical engagement with the dynamics of non-execution illustrate that non-execution is a political problem requiring political solutions. As we argue near the end of the paper:

Not only are the practicalities of using Article 46(4) ECHR so complex as to make its deployment seem unlikely but—and more importantly—the almost certain futility and possible backlash that would flow therefrom make this avenue one in which, we argue, extreme caution should be displayed. If the Council of Europe is serious about tackling non-execution, then it must focus its attention on politics. It must take seriously the reality that, in some cases and at some times, non-execution is the politically popular and advantageous thing for the State to do with an eye to the domestic polity, and that the politics of reputation and peer pressure within the Council of Europe are not sufficiently strong to counter the domestic political ‘payoff’ of non-execution.

We hope to have an open access version of the paper to share soon, but in the meantime do feel free to get in touch directly if you would a copy of the un-typeset, un-finalised version of the paper.