Preserving the European Convention on Human Rights: Why the UK's Threat to Leave the Convention Could Save It

Abstract

The European Court of Human Rights sits in a precarious position. The United Kingdom continues to publicly defy the Court and is now threatening to withdraw from the European Convention on Human Rights altogether. If the Court is going to continue to be successful, prominent member States like Britain cannot withdraw. Vinter v. UK, decided in June 2013, is cause for the latest uproar. Vinter held that Article 3 of the Convention requires all life sentences to incorporate a review mechanism for early release. Contrary the Court’s public chiding of the UK, however, Vinter indicates that it is the Court, not the UK, that poses a threat to the long-term success of the Convention. How so? Because the jurisprudential model — European consensus — that produced Vinter and governs the Court’s interpretation of the Convention seriously undermines the rule of law. And fidelity to the rule of law, not a commitment to expanding the protections covered by the Convention, is what will preserve the work and influence of the Court for years to come.

For nearly 35 years, the Court has interpreted the Convention by looking for a “consensus,” “common approach,” or “trend” among the Contracting States or States outside of Europe. This Article briefly surveys the Court’s cases and concludes that the Court’s use of European consensus has been completely unpredictable — the antithesis of a judiciary adhering to the rule of law. Accordingly, the Article argues that the Court must abandon its living European consensus jurisprudential model and adopt a countervailing historical jurisprudential model that focuses solely on Contracting States. The historical model provides predictability and reinforces the notion of the Convention as an agreement, therefore upholding the rule of law and preserving the Court’s credibility.

Keywords: European Court of Human Rights, European Convention on Human Rights, Rule of Law, Jurisprudence, Human Rights, International Law