Attorney General Lord Hermer has declared that the European Convention on Human Rights, a cornerstone of international law safeguarding individual freedoms for over 75 years, is confronting unprecedented threats. However, a pivotal gathering of foreign ministers in May will reaffirm and reinforce its essential protections, ensuring its continued vitality in a rapidly changing world.
A Legacy Born from Tragedy
In the wake of the Second World War, European nations united with a solemn vow: tyranny would never again go unchallenged. This collective resolve gave birth to the Council of Europe, an institution the United Kingdom proudly helped establish as a founding member. At its core lies the European Convention on Human Rights, which has for decades protected the rights of millions across 46 member states.
Successive UK governments have consistently upheld their commitment to the Convention, the independence of the European Court of Human Rights that interprets it, and its positive impact on citizens throughout Europe, including those in Britain. Yet, as Lord Hermer notes, champions of the Convention must acknowledge it is being severely tested by contemporary global crises, particularly the scale and complexity of modern migration patterns.
Addressing Legitimate Concerns
Legitimate public apprehensions exist regarding how the Convention applies in today's context, prompting collaborative action with European partners to maintain public confidence. Last autumn, the Secretary General of the Council of Europe unveiled a four-point plan to tackle migration-related issues within the Convention's framework. A key component is a political declaration on migration and the Convention, slated for adoption at the upcoming foreign ministers' meeting in Chișinău this May.
Such political declarations are not novel; they have historically guided the Convention's evolution. For instance, the 2012 Brighton Declaration reinforced the principle that national authorities bear primary responsibility for human rights protection. The current efforts in Strasbourg continue this tradition, aiming to keep the Convention system robust and practical.
Clarifying Key Articles
The Council of Europe's steering committee for human rights has recently published a report proposing elements for the declaration. It acknowledges unprecedented migration levels, including the "instrumentalisation of migration," where irregular migration is weaponised by one state to destabilise another. The report scrutinises how two Convention rights have been interpreted: Article 3, which guarantees freedom from torture, inhuman or degrading treatment or punishment, and Article 8, protecting the right to respect for private and family life.
Human rights are universal, yet the Court has consistently recognised that the Convention must be applied sensitively, considering diverse legal and factual contexts. Importantly, this initiative does not seek to erode fundamental rights, diminish commitment to the Convention, or alter the absolute nature of Article 3. However, because Article 3 is absolute, it demands careful application that faithfully reflects its focus on the most severe forms of ill-treatment.
While the boundaries of torture are relatively well-defined, "inhuman or degrading treatment or punishment" lacks a precise definition in the Convention, its meaning shaped by fact-specific case law from the Strasbourg court. This has led to uncertainties in applying these principles across different scenarios, such as translating prison condition precedents from Convention states to non-Convention countries or cases involving removal to states with limited social or economic support.
Strengthening Legal Frameworks
Addressing these concerns in the upcoming political declaration does not undermine judicial independence or human rights commitments. Establishing clear parameters for domestic decision-makers when applying Article 3 promotes consistency and enhances the right's integrity and credibility.
Article 8 presents distinct considerations, inherently involving a balance between individual rights and the public interest. Strasbourg case law outlines relevant factors, and where applied, the court has been reluctant to interfere with national decisions. These principles form a stable, predictable legal framework. Complementing the Strasbourg efforts, the Home Secretary has announced reforms related to Article 8, including resetting the balance between individual rights and public interest and providing a clear framework for its application in the UK to ensure proper domestic interpretation.
A Collaborative Path Forward
The Committee of Ministers will now finalise the declaration text ahead of May's adoption. This is merely one aspect of ongoing international cooperation to address irregular migration challenges, which also includes crucial work to combat people smuggling. No single solution can resolve these complex issues; modernising the ECHR's interpretation is not a panacea. Tackling them demands close partnerships with allies, built on trust and shared legal standards.
This process aims to defend the Convention's absolute protections, clarify its application in contentious areas, and maintain the system's legitimacy in the eyes of the public it serves. By doing so, it ensures the European Convention on Human Rights endures as a beacon of freedom for the next 75 years and beyond, adapting to new realities while upholding its foundational principles.
