English Courts and the ‘Internalisation’ of the European Convention of Human Rights? – Between Theory and Practice

Abstract

This article examines the claims in literature that the recent caselaw of English courts has internalised the protections contained in the European Convention of Human Rights. Instead of applying the Human Rights Act, judges have sought to comply with the international obligations by having recourse to common law rights. These newly identified and recognised rights, it has been suggested, might provide a good basis for the fulfilment of the international obligations even if the UK pulls out of the Convention or in case of repeal of the HRA by Parliament. This paper seeks to examine the conditions and limits of the internalisation of the European Convention of Human Rights by English courts through the re-interpretation of the common law. It does so by comparing the practice of English courts to the theory of judicial internalisation which certain international scholars argue is an ideal manner of ensuring compliance with international law. In particular, I inquire into the three elements of internalisation: the idea of voluntary compliance; the idea that this internalisation occurs through dialogue with other actors in the international community rather than by reference to the political branches within the state; and finally the argument that ultimately the internalisation is seen as reshaping national interest in order for domestic law (and nation states) to acquire an international identity.

Keywords: European Convention on Human Rights, Human Rights Act, common law rights, common law, privacy, internalisation, Koh, transnational process