Peter Margulies on British Reform Proposals for the ECHR

The European Court of Human Rights has increasingly become a tribunal pushing back against international counterterrorism efforts.  While in some cases it has identified real government overreaching, the ECHR often stalks bigger fish: Its guiding concern seems to be that counterterrorism measures such as curbs on terrorist financing and application of the law of war paradigm are not products of international consensus in a post-9/11 world, but instead hegemonic power-plays by the U.S.  Driven by this sentiment, the ECHR has curbed states’ ability to detain or extradite suspected terrorists.  Those who view the ECHR’s jurisprudence as unduly rigid and dismissive of terrorism’s impact have reason to praise recent proposals by the United Kingdom that seek to rein in the tribunal.  However, these proposals face an uncertain future, not least because they fail to deal with legitimate concerns about post-9/11 abuses.

The UK proposals stress two principles that already inform ECHR decisions: (1) subsidiarity – the premise that a state gets “first crack” at adjudication of human rights violations, and that matters satisfactorily resolved by a state’s courts should not be entertained in a regional court like the ECHR; and, (2) the “margin of appreciation” accorded state policies, which embodies deference to state officials’ choices.

Regarding subsidiarity, the UK proposals suggest a number of options, including a proposal (Draft sec. 23(c)) to limit the ECHR’s jurisdiction to cases where a national court “clearly erred” in interpreting the Convention or the petition raises a “serious question” regarding the Convention’s interpretation.  Regarding the “margin of appreciation,” which pragmatic types on this side of the Atlantic might term the “degree of deference,” the UK draft notes that deference should be “considerable” (Draft sec. 17) and that each state’s political branches (typically merged, as in any parliamentary system) have the responsibility and competence to apply the Convention in the context of particular cases.  

Just on a procedural level, the UK’s proposals are merely the opening salvo in a long contest.  Foreshadowed in a speech by Prime Minister David Cameron in January, the proposals must be approved by the Council of Europe’s Committee of Ministers.  Thereafter, they must be ratified by each of the forty-seven High Contracting Parties of the European Convention – hold-out problems, anyone?  A less politically loaded proposal to streamline the ECHR’s jurisdiction – the now-approved Protocol 14 – was delayed for six years as Russia sulked.  While Russia – no stranger to authoritarian state policies – might endorse the UK’s effort to curb the court, it might also decide that the proposals unduly favored US interests, and were worth opposing on that basis alone.  Even if Russia agrees, one of the other contracting parties might assert that the UK proposal hobbled human rights.

Ironically, on issues which do not necessarily relate to terrorism, an objecting party might be correct.  Bear in mind that the European Convention is not invariably more receptive to individual rights than the US Constitution.  Indeed, the opposite is sometimes the case.  For example, the European Convention limits free expression, which enjoys pride of place in our Bill of Rights.  The Convention subjects speech to a balancing test which weighs autonomy against national security and public safety.  European states can readily regulate the content of speech, while the US Supreme Court, in Holder v. Humanitarian Law Project, has only permitted such regulation in a narrow zone involving speech at the bidding of foreign terrorist groups.  Holder also includes many safe harbors, as described in my article, Advising Terrorism: Hybrid Scrutiny, Safe Harbors, and Freedom of Speech.  European free speech law, in contrast, already defers to states; the UK proposal would only exacerbate this deficit in democratic expression.

Even if the state parties agreed to the UK changes, the impact of the changes on the court is unclear.  Subsidiarity has rarely stopped the court from intervening.  Moreover, the court already applies the margin of appreciation, but has repeatedly held that counterterrorism policies exceed the appropriate range of deference.  For example, in A and Others v. United Kingdom, the ECHR purported to apply a margin of appreciation, but nonetheless struck down detention of a suspected terrorist.  The UK had credible evidence that the detainee, a foreign national, posed a threat.  However, it could not deport him because of concerns that he would be tortured if returned to his country.  The ECHR was impervious to this dilemma.

The rigidity that the ECHR displayed in A and Others has significant consequences.  Since the ECHR barred detention and the UK’s narrow conspiracy laws did not support a criminal prosecution, the ECHR effectively forced the UK into a worst-case scenario: release despite strong evidence of dangerousness.  In mandating this result, the ECHR ignored evidence of a world-wide consensus on effective counterterrorism, manifested by measures such as United Nations Security Council Resolution 1373, which requires all member states to take measures to stop terrorist violence. One could argue in favor of the UK reform proposals that they would address the counterintuitive reading of the margin of appreciation adopted by the A and Others court.  The court deferred not to political officials, as the UK’s current reform proposals would require, but to the British House of Lords, which had struck down the detention.  However, bear in mind that the US Supreme Court applies its Chevron doctrine, requiring deference to administrative agencies, in an inconsistent manner.  Similarly, the ECHR would not be above playing “whack a mole” by in practice narrowing the margin of appreciation accorded political officials if European states approved the UK’s proposals.

Viewed more broadly, the ECHR’s decision in A and Others hinged on one of two possible explanations.  Perhaps the ECHR’s mechanical reading of the Convention trumped its concern about the threat terrorism presented or its willingness to consider other law, such as SC Resolution 1373.  Or perhaps the court believes that its true calling is obstruction of counterterrorism measures tied to the US and its allies.  The court’s rhetoric and reasoning occasionally hint that force is an outdated response that the US pushes to retain its global position.  This perspective is supremely resistant to evidence that some non-state actors, including groups like Al Qaeda, are unmoved by logic or diplomacy.  A remixed gloss on subsidiarity and the margin of appreciation will not address either of these root causes of the ECHR’s stilted jurisprudence.  As a result, the court’s threat to international coordination of counterterrorism efforts is likely to continue.

That said, the UK proposal might be more effective if it was accompanied by meaningful reforms in some aspects of counterterrorism policy.  For example, the US and its allies could take even more decisive steps to assure that detention of civilians both within a state and in  theaters of armed conflict received an independent and fair review.  Human rights law requires such safeguards, but the US and its allies have long argued that the law of war, which does not require independent or judicial review, trumps human rights law.  The US has instituted administrative review of detainees’ present dangerousness both at Guantanamo and in Afghanistan, but it’s unclear that the current framework provides the independence that human rights law demands.  The US and allies such as the UK could acknowledge that on matters such as review of detention, the law of war should be informed by the law of international human rights.

Since this move would merely refine safeguards for those already detained, it would not pose a security threat and might earn the US and its allies some precious good will.  Such a  concession would not magically convert the ECHR into a pro-counterterrorism tribunal.  However, it might usefully disrupt the ECHR’s apparent anti-US bias, setting the stage for a more pragmatic brand of interpretation in terrorism cases.