The Talk of Temporary Withdrawal from the ECtHR

The British government has made headlines with its statements that it's considering every option to deport Abu Qatada - including the temporary withdrawal from the ECtHR, Channel 4 News. Legally speaking, however, there is no such thing. It is not within the provisions of the European Convention on Human Rights.  The two provisions that concern opting out from the Convention are Articles 15 and 58 and these are far from applicable in this case. 

Article 15 of the Convention governs temporary derogation from the Convention in times of public emergency threatening the life of the nation. The Convention does not define the notion of public emergency, but offers war as an example. In the case of Greece v. UK, the European Commission on Human Rights defined the core characteristics of a state of emergency as 1) imminence, 2) effects involving the whole nation, 3) threat against the continuity of organised life in the country and  4) the exceptional nature of the danger.  (See the report of the Commission, 5 November 1969, YB XII (1969), p. 72 and pp.. 76, 100 (also pp. 45-71)). Importantly for the case in question, the provision states that no derogation can be made from provisions concerning  freedom from torture, inhuman and degrading treatment. The Article further demands that derogations are not contrary to other obligations under international law of the derogating state.  In the case of the UK, there is obviously no evidence to suggest that there is a public emergency fulfilling all four of these characteristics. A derogation from the Convention under Article 15 cannot meet the standards laid out by  the European Court of Human Rights and would be in contravention of the UK's obligations under the UN International Covenant on Civil and Political Rights and the UN Convention against Torture. 

Article 58 covers denouncing the treaty - i.e. pulling out completely.  States enter into treaties of their own accord and are legally free to opt out of them provided that they follow the appropriate procedures. The European Convention on Human Rights has two requirements for denunciation. First, a six months notice must be given to the Secretary General of the Council of Europe. Second, denunciation cannot allow a state to violate an existing obligation. For example, a state which has already received a final judgment from the European Court of Human Rights will still be obliged to comply with that judgment under Article 46 of the Convention. The denunciation would mean that no individual from the state in question can be under the jurisdiction of the Court six months after the denunciation. For ongoing or existing cases, however, the denunciation would not have an effect. The denunciation of the Convention is also complicated by the fact that all Council of Europe member states have accepted the compulsory jurisdiction of the Court and the European Union is about to accede to the Convention itself. 

Perhaps the term of 'temporary withdrawal' is being used to suggest that the UK plans to denounce the Convention with the aim of re-entering it with a reservation. The European Convention on Human Rights is silent on this matter. The European Court of Human Rights, however, has a very clear jurisprudence with regard to not giving effect to reservations that are contrary to the object and purpose of the treaty. Even though a state may denounce and seek to re-enter a treaty as a matter of technicality, if the UK aims to do this in order to limit the scope of the European Court of Human Rights'  scrutiny over the UK's decisions to deport individuals to jurisdictions where they may face torture or an unfair trial, the plan is not likely to succeed. The reservation would be deemed invalid by the Court and the UK would face a new violation judgment. This was indeed the response the Blair government received from Lord Pannick QC and Liberty when they toyed with the idea of denouncing the Convention after the case of Chahal in 2003. "Denunciation of the ECHR", (publisher, Liberty).

Given that there is no mechanism for 'temporary withdrawal' and any new reservation that is contrary to the object and the purpose of the treaty would be severed if a state were to denounce and then re-enter the Convention, what explains this talk of temporary withdrawal?  There seems to be three possibilities.  First is that the Conservative Party is testing support for the very idea of denouncing the Convention. There are many Conservative politicians strongly committed to the European Convention on Human Rights. There are, however, also others that seek a more US-based approach to human rights, that is a nationalist approach to rights and judicial review at the expense of international scrutiny. Many see a British Bill of Rights as an alternative to the European Convention on Human Rights. Second, they are trying to intimidate the European Court of Human Rights.  The consequences of the UK withdrawal could be catastrophic for many Council of Europe states. The threat could, therefore, lead the Court to become more cautious in its scrutiny of UK policies. Third, Conservative politicians are rolling out anti-Strasbourg Court discourse as a strategy to appease voters. I find the first option more plausible. Debates surrounding the European Court of Human Rights are elite-driven and elite-focussed. It is about pushing for a model of judicial and political governance that takes the UK further away from Europe, not the deportation of an Islamic cleric.