This post is by Nelson A. Agbor. Nelson is a Doctoral Research Student in International Human Rights Law under the guidance of Dr Patrick Holden at the University of Plymouth. Here, Nelson examines the ongoing importance of the European Convention on Human Rights in a post-Brexit world.
On the 14th of June 2022, the European Court of Human Rights passed a judgement placing an injunction on a flight (1 and a half hours before it took off) meant to carry refugees from the United Kingdom to Rwanda as part of a deal reached between the two countries 1. According to the UK government, this policy is aimed at discouraging migrants from risking their lives by crossing the English Channel on small boats after a surge in such crossing over the past two years 2.
The policy is also geared towards discouraging the human trafficking business which has seen a high within the same period mentioned above. The policy will see some refugees sent to Rwanda, to claim asylum there. They may be granted permanent status to stay in the country, apply to settle there on other grounds, or even seek asylum in a safe third country.
However, the policy has come under multiple challenges both by some of the refugees, Human Rights lawyers and refugee charities operating mostly in the United Kingdom 3. This is because they believe the policy is inhuman, and a breach of their human rights, the Geneva Convention and the 1998 Human Rights Acts.
Most of these challenges brought by the litigants before UK jurisdictions had failed as the appeal court approved the decision of the magistrate court allowing the deportation to proceed. However, in an out-of-hours decision on the night of 14th June 2022, the European Court of Human Rights, on behalf of one of the refugees overturned the decisions of the UK courts by passing an injunction to stop the flight from taking off 4.
The court equally advised the UK government to stay all actions regarding deportations to Rwanda until all legal issues raised are resolved 5.
This article seeks to demonstrate the importance of the European Human Rights Convention in the wake of Brexit, and its binding nature on the United Kingdom and other member states. It will also review and suggest an explanation of the European Convention on Human rights and the European Union.
Interested in exploring more current issues in international relations? PhD student Atilla Can Ekici has written about the role of the US and Saudi Arabia in the Middle East:
The European Convention on Human Rights and The European Court of Human Rights Explained
As earlier mentioned above, the European Convention on Human Rights (also known as the Convention for the protection of human rights and fundamental freedoms), is an international convention to protect human rights and political freedoms in Europe. It was founded in 1950 by the Council of Europe, which was put in place after the 2nd world war to protect human rights and the rule of law and promote democracy across Europe 6.
It is important to highlight that it was Winston Churchill, the then Prime Minister of Britain who called for the “Human Rights” charter in the aftermath of WW2 7. He spoke about the strength derived from our sense of common values, and the charter being “guarded by freedom and sustained by law” (1948 speech at the Hague 8). One of the main writers of the convention was a British lawyer called David Maxwell Fyfe, who later became the UK’s Home Secretary 9.
Creation of the European Court of Human Rights
The European Convention on Human Rights came into force on September 3rd, 1953, created by the Council of Europe whose member states constituted a party to the convention upon creation 10. The convention still accepts new members who are expected to ratify the convention once they become members. This convention created the European Court of Human Rights (ECtHR).
The court was established on 21st January 1959 based on article 19 of the European Convention on Human Rights when its first members were elected by the Parliamentary Assembly of the council of Europe 11. This court looks over cases of individuals who feel their rights have been violated by any state party 12. The ECtHR which is headquartered in Strasbourg is composed of 47 judges (1 Judge elected by each state party to the European Convention on Human Rights).
The current president of the court elected on behalf of Iceland is known as Robert Spano 13. The court applies the European Convention on Human Rights. One of its main functions is to ensure that all member states respect the rights and guarantees set out in the convention. It accomplishes this by examining complaints (known as applications), lodged by individuals and sometimes by states 14.
The UK is one of the founding members of the ECHR and played a major role in the establishment of its protocols and was equally the first nation to ratify the convention in March 1951. The United Kingdom’s Human Rights Act of 1998 effectively enshrined the European Convention on Human Rights into British law allowing all the rights guaranteed by the convention to be enforced in UK jurisdictions.
Brexit and the European Convention on Human Rights
Since the ECtHR’s decision of June 14, 2022, to stay the flight of refugees to Rwanda, many people have been asking why the UK must be bound by the decision of a European court after Brexit 15. However, it is important to clarify that the European Convention on Human Rights was set up by the Council of Europe and not the European Union.
This, therefore, makes the ECHR different from the European Union whose membership the UK has renounced on the 31 of January 2020. If the UK remains a signatory to the Council of Europe and the ECHR, all decisions of the ECtHR shall remain binding and enforceable in all courts of the United Kingdom 16.
Judging from the above, it will not be wrong to conclude the UK/Rwanda asylum plan has demonstrated all the features of a controversial deal. This is true as we have seen many rights groups and human rights lawyers and activists determined to expose all the loopholes inherent in the policy and bring it to a stop.
It has also ignited in the British government, the notion of state sovereignty as the Home Secretary is determined to challenge the verdict of the ECtHR and proceed with the planned deportations. Some observers have even suggested a possible withdrawal of the United Kingdom from the European Convention on Human Rights.
As part of Plymouth’s MA International Relations: Security and Development, you’ll study modules such as Global Governance and Regional Geopolitics and have the opportunity to discuss issues such as the application of human rights. Find out more:
1. Rwanda asylum plan: Last-minute legal battle over flight; online at Rwanda asylum plan: Last-minute legal battle over flight - BBC News. Accessed 15 June 2022
2. UK's deportation plan attacks 'basic dignity,' lawyers say; online at UK's deportation plan attacks 'basic dignity,' lawyers say | The Independent. Accessed 15 June 2022
4. Interim measure granted in case concerning asylum-seeker’s imminent removal from the UK to Rwanda; Online at European Court of Human Rights - ECHR, CEDH, news, information, press releases (coe.int). Accessed 14 June 2022
6.Bates, E., 2010. The evolution of the European Convention on Human Rights: from its inception to the creation of a permanent Court of Human Rights. Oxford University Press.
7. Simpson, A.B., 2004. Human rights and the end of empire: Britain and the genesis of the European Convention. Oxford University Press on Demand.
8. Guerrieri, S., 2014. From the Hague Congress to the Council of Europe: hopes, achievements, and disappointments in the parliamentary way to European integration (1948–51). Parliaments, Estates and Representation, 34(2), pp.216-227.
9. Cranmer, F., 2018. The European Convention on Human Rights: A living leading work. In Leading Works in Law and Religion (pp. 55-74). Routledge.
10. Robertson, A.H., 1960. The European Court of Human Rights. Am. J. Comp. L., 9, p.1.
11. Black-Branch, J.L., 1996. Observing and enforcing human rights under the Council of Europe: The creation of a permanent European Court of Human Rights. Buff. J. Int'l L., 3, p.1.
13. Madsen, M.R., 2018. Rebalancing European human rights: has the Brighton Declaration engendered a new deal on human rights in Europe? Journal of International Dispute Settlement, 9(2), pp.199-222.
15. Cowell, F., 2021. The Brexit deal locks the UK into continued Strasbourg Human Rights court membership. LSE Brexit.