Keeping rights at home: British conceptions of rights and compliance with the European Court of Human Rights
| Published date | 01 November 2017 |
| DOI | 10.1177/1369148117732469 |
| Date | 01 November 2017 |
| Author | Zoë Jay |
| Subject Matter | Articles |
research-article2017
Article
The British Journal of Politics and
International Relations
Keeping rights at home: British
2017, Vol. 19(4) 842 –860
© The Author(s) 2017
Reprints and permissions:
conceptions of rights and
sagepub.co.uk/journalsPermissions.nav
https://doi.org/10.1177/1369148117732469
DOI: 10.1177/1369148117732469
compliance with the European
journals.sagepub.com/home/bpi
Court of Human Rights
Zoë Jay
Abstract
The United Kingdom’s relationship with the European Court of Human Rights (ECtHR) has been
historically fraught. This article examines this relationship with a view to understanding how the
United Kingdom’s conceptions of human rights protection, both domestically and in Europe, shape
its willingness to comply with ECtHR judgements. The article argues that the U K maintains a sense
of a distinctly ‘British’—as opposed to ‘European’—rights culture, based on principles such as
parliamentary sovereignty and so-called common sense values. In doing so, the article explores an
important analytical gap in terms of understanding the relationship between compliance behaviour
and international law, as current theoretical explanations do not necessarily explain how cultural
perceptions of rights and law translate into decisions to comply.
Keywords
British rights, compliance, European Court of Human Rights, norms, rights culture, United
Kingdom
Introduction
For as long as ‘Europe’ as a social and political construct has existed, the United Kingdom
has grappled with how its identity and traditions fit with those on the continent. As a state
with its own composite nations, distinct traditions, cultures and identities, and a long his-
tory steeped in notions of independence and exceptionalism, the United Kingdom was the
poster child for ‘reluctant Europeans’ well before current debates about Britain’s place in
Europe resulted in the landmark vote to leave the European Union (EU) in June 2016
(Gowland and Turner, 2014; see also Garton Ash, 2001). Yet, for all its fraught history
with Europe, the United Kingdom continues to swiftly and effectively meet almost all of
its commitments to the European institutions of which it is a member. In particular, the
United Kingdom’s relationship with the Strasbourg-based European Court of Human
University of Tasmania, Hobart, TAS, Australia
Corresponding author:
Zoë Jay, University of Tasmania, Private Bag 22, Hobart, TAS 7001, Australia.
Email: zoe.jay@utas.edu.au
Jay
843
Rights (ECtHR or ‘Court’) is a key illustration of the tensions that define how the United
Kingdom interacts with Europe; despite fiercely criticising the ECtHR for overreaching
its mandate and undermining domestic legal processes (Conservative Party, 2014), the
United Kingdom was a primary architect of the European human rights system following
the Second World War and is one of the ECtHR’s best role models for how to comply with
international legal obligations and protect human rights (Donald et al., 2012: 144). The
dynamics of this ‘strained’ (Ziegler et al., 2015: 1) or ‘begrudging’ (Hillebrecht, 2014: 99)
relationship are clearly informed by a long and complicated history of competing ideas
and expectations about national and European roles in the legal protection of rights.
Nonetheless, the extent to which this history affects the United Kingdom’s commitment
to its international legal obligations—in particular, how it interprets and decides to follow
European human rights norms—remains underexplored. This article therefore examines
the United Kingdom’s interactions with the ECtHR, with a view to understanding how
British conceptions of human rights and legal norms, domestically and in Europe, shape
its willingness to comply with the ECtHR.
The article makes two interrelated arguments. First, that current theoretical accounts of
compliance behaviour do not sufficiently appreciate the nuances of individual states’ expe-
riences with, and understandings of, law and human rights. Closer examination of the
domestic historical and cultural context in which states receive and interpret international
human rights norms can complement existing explanations by illustrating in more detail
how a state comes to view those norms as legitimate and worth following. In other words,
recognising how a state perceives the role of law and human rights domestically provides
insight into how it responds to, and decides to comply with, international human rights law.
The second part of this argument is that the United Kingdom’s fractious relationship
with the ECtHR can be explained by examining how the United Kingdom uses its legal
culture and long-standing human rights traditions as a litmus test to interpret and accept
or reject norms. Specifically, the article is interested in the broad national trends and ideas
that determine attitudes about what the British traditions entail and how they resonate
with, or differ from, perceptions of the (younger) Strasbourg tradition.1 This approach
reveals a discourse in the United Kingdom—advocated by politicians, judges, and the
public alike—that the British rights culture is distinct from, if not outright superior to, the
European system. This perception champions the British institutions of parliamentary
sovereignty, common law, and so-called common sense values as the best way to uphold
rights, and is built on a narrative that (apocryphally) traces the ‘British approach’ to rights
protection to the 1689 Bill of Rights and Magna Carta. This view also paints the ECtHR
as ‘foreign’, run by judges that cannot comprehend the specific human rights needs of
British society because they do not appreciate British culture. In this sense, the United
Kingdom’s relationship with the ECtHR is tainted by a notion that human rights are better
protected at home than in Strasbourg. This discourse is diffuse, incorporating a variety of
principles and ideas that are at times contradictory and pulled together piece-meal to
make political arguments. Nonetheless, the core theme that British political and legal
institutions are unique in Europe ties together a tangible narrative about the ‘British
approach’ to rights and law. In exploring this approach, the article demonstrates that the
United Kingdom is most likely to perceive ECtHR judgements as legitimate when they
closely reflect British conceptions of rights and law, while non-compliance arises when
ECtHR judgements fundamentally challenge these conceptions.
To this end, the belief that the British approach to rights and law is ‘better’ than the
European approach illustrates that the intersection between normative preferences and
844
The British Journal of Politics and International Relations 19(4)
interests is not, as dominant explanations of compliance suggest, informed solely by
domestic institutions or international pressure. Rather, the UK case demonstrates that the
normative influences motivating compliance are not necessarily the norms promoted
from the top-down by external laws or institutions like the ECtHR, but more powerful
domestic norms and cultural traditions that determine the United Kingdom’s notions of
what is or is not legitimate. Thus, the conclusions offered here provide valuable insight
into why, and in what circumstances, the United Kingdom is willing to comply with the
ECtHR, as well as a clearer understanding of how states interpret and internalise interna-
tional human rights norms.
Theoretical accounts of compliance
The distinctly normative nature of human rights treaties, and the general absence of tan-
gible incentives to obey them, expose major frailties in International Relations’ explana-
tions of compliance with international law (see Reus-Smit, 2004). Materialist and
rationalist perspectives in particular, with their focus on interest- or incentive-driven
motivations (Goldsmith and Posner, 2005; Morgenthau, 1973), and on the international
structures and institutions that create or constrain those preferences (Keohane, 1997;
Slaughter Burley, 1993), struggle to explain compliance with human rights institutions
such as the ECtHR, where the onus is on states to self-enforce and where there is ostensi-
bly little to gain from impinging on the sovereignty of other states to comment on their
domestic human rights practices (Bates, 2005; Moravcsik, 2000). Although current theo-
ries can draw attention to broad patterns of likely or unlikely compliance, they remain
limited in their ability to pinpoint how states decide to comply with particular cases, and
to predict which cases states will obey and which they will resist. This limitation is espe-
cially important to understand in Europe, where many states—including the United
Kingdom—have high, but not yet perfect, compliance rates. This indicates that states’
decisions to comply, or not comply, are informed by a precise and deliberate balancing of
national interests, values, and expectations about international law that is more intricate
than dichotomous rationalist or normative perspectives allow for (Checkel, 1997).
The argument that has gained the most traction in terms of explaining established
democracies’ compliance choices—domestic institutionalism—asserts that compliance is
contingent on the strength of states’ domestic institutions. States with independent judi-
cial and parliamentary branches, free press and civil society, and democratic traditions are
...
To continue reading
Request your trial