Britain and European Human Rights Law: An Author’s Apology

Abstract

Now that Britain has withdrawn from the European Union (‘EU’) and its legal order (‘Brexit’), what will be the British role, if any, in the Council of Europe and its most significant achievement, European human rights law (‘EHRL’)? Many British subjects would be surprised if told that, after Brexit, the United Kingdom (‘UK’) is still a full-fledged member of that ‘other’ European institution, the Council of Europe, so long conflated in public opinion with the EU. There is a certain logic in predicting that, having left the EU in Brussels and its law, the UK, in its nationalistic surge, will also abandon the Council of Europe in Strasbourg and its regional international human rights legal system. Notwithstanding the long-standing warning of John Donne’s ‘no man is an island’ poem, it seems likely that Britain will, in the future, be ever more sundered from its neighboring continent.

This is, for me, a sorrowful prospect, not only because of my fondness for Britain and for my commitment to international human rights law (‘IHRL’), but because it forces me to reappraise some optimistic predictions about the fate of EHRL, notably those made in my book, European Human Rights Law (‘Book’), co-authored with good friends, Richard Kay and Tony Bradley, which was first published as a trial edition in 1990 and last appeared in its third Oxford University edition in 2008. How could I have gotten my prognosis, especially about Britain and EHRL, so dreadfully wrong? In this essay, let me first recount how I arrived at my predictions, now more than a decade old at their latest, and then explore two likely causes for my failing: first, not recognizing that Britain, a ‘Nostalgia Nation’, has vainly sought to recapture the power and prestige of a lost empire even at its own political and economic cost, and, second, being caught up in the intellectual bubble of the modern missionary zeal for IHRL. I should have known better on both counts!