States Rights and Transnational Law


Jonathan Fisher for the UK based The Henry Jackson Society has produced a paper that considers the United Kingdom’s involvement in the European Convention on Human Rights (ECHR) and its judicial body, the European Court of Human Rights. It suggests a fascinating parallel.

This paper addresses the key human rights question in Britain today – Should the United Kingdom withdraw from the European Convention on Human Rights? From the British perspective, the question arises because there is a widespread perception that the European Court of Human Rights:

intervenes too often with decisions of British courts;

is a judicially activist Court, giving an artificially wide application to the European Convention on Human Rights far beyond the contemplation of thecontracting parties;

decides cases too often in favour of the complainant, at the expense of the law-abiding citizen and society in general, and which the Courts in Britain are obliged to follow.

There is universal recognition in the Council of Europe that reform of the European Court of Human Rights is required, and attention has focused on radically reducing the number of cases it hears.

“Intervenes too often” with the decisions of a member soevereign govenment, is “judicially activist,” and “decides cases too often in favour of the complainant, at the expense of the law-abiding citizen.” These days, that last complaint concerns the European Court’s interference with British attempts to manage the radical Islamist presence in the nation.

It is impossible not to see the likeness to historic U.S. states rights disputes, now liberal vs. conservative, over the very same tensions. But are determinations regarding these tensions merely ideal – in balancing local preferences against against universalized ideas – or can history, geography, and culture reasonably lead to different judgments in the different cases. That is, is England’s argument no different from, one upon a time, and even now, that of Alabama, or can one judge their positions differently without contradiction? If one believes in a strong federal government in the United States, must one, then, logically support the same strength of union in Europe?

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