The United Kingdom’s Presumption of Derogation from the ECHR Regarding Future Military Operations Overseas: Abuse of Rights, Articles 17 and 18 ECHR, and à la carte Human Rights Protection

Abstract

The paper discusses the intention of the UK government to derogate from the European Convention on Human Rights (ECHR, the Convention) before embarking on military activities overseas, arguing in respect to the suitability of this policy that it (the policy) cannot serve its intended goals but to a limited extent, whilst also possibly generating undesirable legal side-effects. In particular, the ‘presumption to derogate’ –as the UK government labels it– may lead to an abuse of rights, among other reasons discussed in the study, because it is essentially meant for purposes that are not prescribed by the Convention, that is to say, because the aims pursued are not aligned with the raison d’etre (the object and purpose) of Article 15 ECHR that permits derogation from the rights enshrined in the Convention. The UK may be reproached of acting mala fide (in bad faith), thereby being in breach of its obligation to perform the ECHR in good faith. To prepare the ground for this argument, the study critically explores the concept of “abuse of rights” from a theoretical perspective, first, in terms of general international law and, second, within the ECHR system. This way it contributes to the literature on abuse of rights in ECHR law -highlighting especially the function and the role that Article 18 ECHR can play in that respect. To that end, it discusses in a critical fashion the case law of the European Court of Human Rights, criticizing in particular the test regarding Article 18 that the Grand Chamber established in Merabishvili. A derogation under the UK policy in breach of Article 15 ECHR might also amount to an abuse of rights under Articles 17 and 18 ECHR and under the general principles of international law that prohibit bad faith and abuse of law. This, however, does not mean that there might not be cases of future British military operations overseas that lawfully justify a derogation from the ECHR. However, irrespective of their lawfulness under Article 15, such derogation may still be abusive if they predominantly pursue mala fide goals that are foreign to the rationale behind the restrictions permitted by the Convention. Finally, in its conclusions, the study argues that the UK’s intention to derogate from the ECHR when embarking in military activities outside of its territory might be seen as symptomatic of a broader trend of (British) skepticism vis-a-vis the ECHR regime and its institutional apparatus that reflects the legitimacy challenges that the ECHR is currently facing.