top of page
Search

Human Rights Essay Competition 23/24

  • Writer: Justice Society Durham
    Justice Society Durham
  • Oct 8, 2024
  • 6 min read

Congratulations to out winner Issac Tsang, WINNER of our Human Rights Essay Competition titled - Should the United Kingdom withdraw from the ECHR?






















Should the United Kingdom withdraw from the ECHR?

The European Conventions of Human Rights (ECHR) was partially incorporated into British domestic laws under the Human Rights Act 1998. Notwithstanding previous rulings from the Strasbourg Court that challenged the British government’s human rights policies, the call to withdraw from the ECHR reached a new height, due to an interim measure issued to block a flight that was supposed to send asylum seekers to Rwanda (ECtHR, 2022). Prime Minister Sunak proclaimed “I won’t let a foreign court stop us from getting flights up and running” (2024), a claim that could be made material under the enacted Safety of Rwanda (Asylum and Immigration) Act 2024, which stipulates as follows:


“It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure” (Section 5:2)


Analogous to the Brexit debate, the crux of the dilemma now lies between British sovereign integrity and a European intervention. While it is convenient to deem the call to withdrawal as sheer Euroscepticism, one must also analyse the contention with the very issue it addresses — human rights.


The rationale, which Britain helped draft and signed, for the Strasbourg Court to intervene is generally grounded in ECHR Article 1-18 (1950). In particular, the interim measure is justified by Article 3 — “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The British Supreme Court later corroborated this assertion by citing the “real risk of ill-treatment by reason of refoulement” (2023, Article 71) if asylum seekers were deported to Rwanda. It must be noted that both courts have not weighed in on the human rights situation in Rwanda (the third country), but grounded their judgement in the possible, if not probable scenario of asylum seekers being deported again from Rwanda to their countries with human rights violations (the country of origin). The principle of non-refoulement is respected in the 1951 Refugee Convention, also signed by Britain, to prohibit expulsion of anyone “in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened” (UNHCR, Article 33). Therefore, with or without the interim measure from Strasbourg, deportation to Rwanda would arguably subject Britain to a violation of both domestic and international human rights legislation.


Having established the human rights aspect of ECHR, one could then question why Britain needs ECHR still if refoulement — or human rights violation in general — was already prohibited in the international 1951 Refugee Convention and the domestic Human Rights Act 1998. The subjugation to a European court seems redundant should the human rights regime theoretically suffice under British self-commitment. The reality, however, is more complicated than having faith in relevant legal clauses.


The Rwanda case is far from a precedent in which Britain’s human rights standards have been challenged by the Strasbourg Court. Solely focusing on the violation of non-refoulement, several deportations were overruled under ECHR, due to a possible death sentence in America (Soering v. UK, 1989); real risk of ill-treatment in India (Chahal v. UK, 1996); lack of medical care for AIDS patients in St Kitts (D. v. UK, 1997). In addition, in the violation of ECHR Article 2 Right to Life during the Iraqi military operation, British soldiers were held accountable, not by a British court, but by the Strasbourg Court for the killings of Iraqi civilians (Al-Skeini and others v. UK, 2011). Those instances highlight the extra-territorial nature of human rights issues, and are more effectively adjudicated by the ECHR legal model for extra-territorial jurisdiction (Khalilov, 2024).


If refoulement were under such scrutiny under ECHR, wouldn’t the extra territorial human rights jurisprudence hamstring the British government, as Prime Minister Sunak repeatedly phrases it, to “stop the boats”? After all, respect for human rights is important, and so is immigration policy, yet an operational Rwanda deal is not a likely prospect even for the Rwandan president (Elliott et al., 2024). This binary between respecting human rights and tolerating human trafficking is, at best, a debatable political narrative (and let’s be honest, it’s not exclusively a Conservative agenda). No matter how you stand on nearly unauthorised 10,000 English Channel crossings (Walker & Jones, 2024) and the daily £8m housing costs for those irregular migrants (Francis & Eardley, 2023), one must recognise ECHR is by no means designed as an incentivising mechanism for human trafficking “criminal gangs”.


In fact, human trafficking is a violation of ECHR Article 4 (Rantsev v. Cyprus & Russia, 2010), yet the distinction between human trafficking and smuggling must be articulated — the former is a crime under ECHR; the latter is a form of irregular migration (Tammone, 2024). Human traffickers are the criminals, the trafficked are the victims. Irregular migrants are first financially, physically, and sexually exploited by human traffickers, and as they touch British soil, they are then threatened with possible refoulement to countries with human rights violations. That is the doublevictimisation of the Safety of Rwanda (Asylum and Immigration) Act 2024, which ECHR Article 3 is serving to, at least legally, prohibit.


To protect the rights of irregular migrants, ECHR Protocol 4 Article 4 is employed to prohibit the Italian authority from pushing back irregular migrants at sea before they reach the border (Hirsi Jamaa and others v. Italy, 2012). For irregular migrants whom the receiving state intercepts, their asylum seeker status must assessed before the decision of repatriation, in order to respect the principle of non-refoulement. Collective expulsion of aliens is prohibited, be it happening in international waters or Rwanda.


Therefore, should the United Kingdom withdraw from the ECHR? Summarising the analysis above, it is likely the British government’s arrangement with Rwanda will face further legal challenges under ECHR. But that is exactly the idea. In times when human rights standards fall short within the British government, the Strasbourg Court would wield its extra-territorial jurisprudence to intervene and compensate. The question is more than an indicator of the level of Euroscepticism, but the respect for human rights in the United Kingdom.


Bibliography:


Special commendations:

  • Lilia Prowse



  • Shivani Muralidharan




CONGRATULATIONS to our winners, we hope to see everyone's upcoming entries for this year!




 
 
 

Comments

bottom of page