Derogation from the European Convention on Human Rights in Armed Conflict: Submission to the JCHR

April 28, 2017

As is now well known, Brexit does not affect the UK’s commitment to the European Convention on Human Rights (ECHR). The European Court of Human Rights (ECtHR) in Strasbourg will continue to be able to determine whether UK law and Government actions are compliant with the European Convention on Human Rights (ECHR).

This might not be so bad if it was not for the fact that many of the ECtHR’s judgments have disregarded the text of the ECHR itself. Policy Exchange’s Judicial Power Project identified many of the most troubling such judgments in its list of 50 ‘problematic’ cases. The ECtHR’s judgments are often inconsistent with one another or read into the ECHR things that were never intended by those involved in the drafting the ECHR in the first place.

Amongst the most alarming examples is the ECtHR’s recent extension of the ECHR to cases of armed conflict abroad, even though it was well understood when the Convention was drafted that it was only to apply within the territory of the Council of Europe – armed conflict was instead to be regulated through International Humanitarian Law, which takes into account both military realities and humanitarian concerns.

It is for this reason that Policy Exchange’s Judicial Power Project recommended that the Government use its power under the ECHR itself to derogate from the ECHR in time of armed conflict abroad. Theresa May committed the Government to this, though questions remain over how best to follow through on the commitment. To derogate does not mean the UK would ignore human rights concerns – those concerns would be taken up through the existing International Humanitarian Law.

In April 2017, the Joint Committee of Human Rights called for evidence on how derogation can be appropriately achieved. Our submission, written by Richard Ekins (University of Oxford and Head of Policy Exchange’s Judicial Power Project), Jonathan Morgan (University of Cambridge), and Guglielmo Verdirame (King’s College, London), can be read here.

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