The UK Government’s Proposed ‘Presumption to Derogate’ from the ECHR: Submission to the Joint Committee on Human Rights

21 Pages Posted: 30 Mar 2017 Last revised: 5 Apr 2017

See all articles by Alan Greene

Alan Greene

University of Birmingham - Birmingham Law School

Date Written: March 28, 2017

Abstract

This submission challenges the UK government's proposals of a presumption to derogate from the European Convention on Human Rights (ECHR) for the actions of its armed forces overseas. A fundamental difficulty with this proposal is the requirement that a state of emergency under Article 15 ECHR must be declared in response to a 'threat to the life of the nation'. The overseas armed conflicts which the UK has been involved in to date to not satisfy this requirement.

Moreover, the proposal for presumptive derogations in British law may damage the legitimacy of the Convention and the European Court of Human Rights (ECtHR) by challenging the value of human rights norms and by placing the ECtHR in a position whereby it may have to pronounce on politically sensitive issues in order to vindicate these rights. This, in turn, may be utilised by other Contracting Parties to undermine the human rights obligations in their respective jurisdictions and further damage the legitimacy of the ECtHR.

Keywords: ECHR, state of emergency, Article 15, armed conflict, war, international humanitarian law, international human rights law

Suggested Citation

Greene, Alan, The UK Government’s Proposed ‘Presumption to Derogate’ from the ECHR: Submission to the Joint Committee on Human Rights (March 28, 2017). Available at SSRN: https://ssrn.com/abstract=2942210 or http://dx.doi.org/10.2139/ssrn.2942210

Alan Greene (Contact Author)

University of Birmingham - Birmingham Law School ( email )

Edgbaston
Birmingham, AL B15 2TT
United Kingdom

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