Denounce the ECHR to deport Abu Qatada… You cannot be serious! – Richard A. Edwards
26 April 2013
The Guardian reports that Prime Minister Cameron is considering denouncing the ECHR on a temporary basis in order to facilitate the deportation of Abu Qatada. As tennis legend John McEnroe might have put it ‘you cannot be serious!’ In order to remove one man from the jurisdiction the government is contemplating removing the protection of human rights for all. One suspects that this announcement by Downing Street was little more than ‘dog-whistle’ politics with the local elections looming next week. But what if the government is really serious? Two quick thoughts come to mind.
Firstly, the UK is on the face of it able to denounce the ECHR under the terms of Article 58, though see below. But even after a denunciation the ECHR will remain fully applicable for six months. Presumably the government would wait for the six months to expire. It would then seek within domestic law to remove Qatada. As this would also require the suspension or repeal of the Human Rights Act 1998 this would require an Act of Parliament. No doubt a political and constitutional storm would break as a result. This would of course not be the end of the matter because the decision would be judicially reviewable, no doubt under an enhanced form of anxious scrutiny. How further forth would the government be then?
Second, there is another possible difficulty for the government. States are usually free to denounce treaties and negotiate re-entry with reservations. No doubt a majority Conservative Administration after 2015 would want to enter a list of reservations to the ECHR, particularly with respect to deportation/extradition cases. In other words it would want to remove the benefit of the Convention system from a distinct group of individuals. Trinidad and Tobago tried something similar with respect to the ICCPR. Frustrated that it was not able to execute convicts as it saw fit in 1998 Trinidad denounced the Optional Protocol to the ICCPR (individual petition mechanism) and then re-acceded with a reservation that prevented capital-prisoners from bringing petitions to the Human Rights Committee. In Kennedy v. Trinidad (1999) Communication No. 845/1999 U.N. Doc. A/55/40 (1999) the Human Rights Committee held the reservation to be contrary to the ‘object and purpose’ of the Optional Protocol to the ICCPR:
6.7 …. the Committee cannot accept a reservation which singles out a certain group of individuals for lesser procedural protection than that which is enjoyed by the rest of the population. In the view of the Committee, this constitutes a discrimination which runs counter to some of the basic principles embodied in the Covenant and its Protocols, and for this reason the reservation cannot be deemed compatible with the object and purpose of the Optional Protocol. The consequence is that the Committee is not precluded from considering the present communication [from Kennedy] under the Optional Protocol.’
Trinidad then denounced the Optional Protocol in its entirety in 2000.
In Europe the situation would be similar. Under Article 32 ECHR the European Court court would have jurisdiction to consider the validity of a denunciation. Article 32 provides that, first, the jurisdiction of the Court extends ‘to all matters concerning the interpretation and application of the Convention’ and, second, ‘in the event of dispute as to whether the Court has jurisdiction the Court shall decide.’ The European Court has already examined the lawfulness of reservations. There is no reason why a sham denunciation should be treated any differently. In Loizidou v. Turkey  ECHR 15318/89 the European Court examined, amongst other things, the Turkish reservation to the then Article 25 limiting the scope of the ECHR to Turkey and not the Turkish occupied territory in Cyprus. As a former resident of northern Cyprus the applicant was unable to vindicate her Convention rights. Before considering the substantive claims of the applicant the Court examined the validity of reservation and remarked:
‘If, as contended by the respondent Government, substantive or territorial restrictions were permissible under these provisions [allowing reservations], Contracting Parties would be free to subscribe to separate regimes of enforcement of Convention obligations depending on the scope of their acceptances. Such a system, which would enable States to qualify their consent under the optional clauses, would not only seriously weaken the role of the Commission and Court in the discharge of their functions but would also diminish the effectiveness of the Convention as a constitutional instrument of European ordre public.’ (para. 75)
The jurisdiction of the European Court would need to invoked via either Article 33 or Article 34 ECHR. It is possible that the Court would exceptionally allow a petition from Qatada notwithstanding a failure on his part to exhaust his domestic remedies. But equally the UK might be subject to an inter-state complaint under Article 33 ECHR, perhaps brought by the newly acceded European Union. Article 33 ECHR actions have the character of an actio popularis.
As the Court noted in Ireland v UK  ECHR 5310/71 ‘unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement”.’(para. 239.) The collective enforcement of the ECHR is as much a part of the public ordre of Europe as the right of individual petition. It is not inconceivable that another Contracting State would bring the UK before the European Court arguing that the denunciation is invalid. The European Court would have jurisdiction to rule on the validity of a denunciation just as it did with respect to the reservations in Loizidou.
It might be argued that once the UK had denounced the ECHR any inter-state case would lapse after six months. However, in the inter-state case arising out of the Colonels’ seizure of power in Greece (Denmark, Norway and Sweden v. Greece  ECHR 4448/70) the Commission after admitting the application mothballed it, reviving the matter once Greece had re-signed the Convention. Eventually, however, the application was struck off in 1976 after all the parties to it decided not to proceed. Nonetheless, it is possible that the UK might find itself subject to proceedings before the European Court long after it has deported Abu Qatada.
This post is by Richard A. Edwards, Associate Head of the Law Department and Principal Lecturer in Law at UWE, Bristol. It first appeared on the Euro Rights Blog and is reproduced here with permission and thanks.
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