Blog post written by Başak Çalı and Alexandre Skander Galand

The second annual colloquium of the Center for Global Public Law held in May 2016 focussed on a timely question: Europe: A friend or a foe of Global Public Law? We were very happy to host Fiona de Londras of University of Birmingham and Cathryn Costello of University of Oxford to help us assess the balance sheet of Europe’s contribution to the development and endurance of global public law (GPL).

Looking back to the debates we held at the colloquium in May from now, it is difficult to escape the reality of Europe being on the verge of losing its status as the leading regional champion of GPL.

The European institutions, the European Union (EU) on the one hand and the Council of Europe on the other, are faced with popular scepticism across Europe. The United Kingdom recently voted to exit the EU. The UK has also voiced interest in denouncing the European Convention of Human Rights (ECHR).

The European institutions themselves have also been at the center of dissonance.  The Court of Justice of the European Union (CJEU) declared that it is too special to be submitted to the jurisdiction of the European Court of Human Rights (ECtHR). The EU has been embroiled in what is often referred to as a ‘refugee crisis’, in which its actions to solve it (especially the EU-Türkiye deal) are decried by the United Nations High Commissioner for Refugees (UNHCR).

How are we to make sense of these developments? Is GPL itself in crisis, under the pressure of popular democratic sovereignty and regime fragmentation or is this a crisis of Europe as a leader of GPL?

In responding to these questions, Fiona de Londras and Cathryn Costello focussed on two different sites of GPL practice. De Londras focussed on the ECtHR as a key GPL institution and the challenges it faces from states and the CJEU in the name of democratic sovereigntism and legal autonomy. Costello focussed on the practice of refugee law, as a core domain of GPL, by the EU and argued that it has failed to adapt European refugee law in the face of contemporary challenges.

The rise of sovereigntism and exceptionalism in Europe

For De Londras, GPL is as a set of public law norms with a global reach. The core characteristic of GPL, as it has developed in Europe, is the existence of binding supranational courts.  Hence, a significant aspect of GPL, echoing our speakers in our first colloquium, is the importance of the existence of institutions beyond the state that keep the exercise of (State) power accountable. In this respect, for de Londras, the ECtHR is the most prominent international human rights adjudicatory body in place in today’s world and a key site of GPL practice.

Against the background of the centrality of the ECtHR for GPL in Europe, De Londras identified two particular developments showing that Europe may be walking in a path undermining the institutions of CPL. First, is the sovereigntist challenge to GPL in Europe. De Londras focussed on the UK reactions to the ECtHR judgments in the case of Hirst v UK as an example of ‘principled’ non-execution. The UK strongly disagreed with the ECtHR finding that a blanket ban on voting for all those imprisoned violated the ECHR. While the UK used to duly execute the judgments of the ECtHR, the ‘Hirst saga’ stands as an example of failure to execute on principled grounds. The UK contention tries to usurp power from the ECtHR back to domestic judicial institutions and parliaments.  This development is dangerous for keeping the binding judgments paradigm intact. The Russian constitutional court recently adopted a similar reaction towards the ECtHR.

Second, the sovereigntist challenge of the states is mirrored in the relationship between the ECtHR and the CJEU.  The CJEU has demonstrated a reluctance to submit the EU and, in turn, itself to the external judicial oversight of the ECtHR.  It held that the draft EU accession to the ECHR was incompatible with EU law as inter alia it might undermine its lone right to rule on EU law. This, argued De Londras, is further evidence that Europe, and even the most effective regional cooperation system (i.e. EU), is taking an exceptionalism route, tainted with counter-constitutionalism dynamics. Altogether, these worrying trends lead De Londras to question whether Europe is still the friend of GPL it has been.

The rule of law crisis in refugee protection Europe

Cathryn Costello turned to the refugee practice in the EU as a site of GPL practice in order to assess Europe’s commitment to GPL. For Costello, a central feature of GPL must be the existence of rule of law guarantees for vulnerable individuals, in particular, those who seek asylum. Following Hayek’s definition of the rule of law, which places emphasis on clear and prospective rules ‘which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge’, Costello argued that the EU has failed to develop adequate rule of law safeguards.

The defects of the Dublin system and the various barriers erected to defeat the entry of asylum seekers to Europe, Costello argued, has undermined GPL; in particular, the duty to provide rule of law protections. While refugee law is clear on how asylum seekers must be treated once they cross international borders, European States and the EU have engaged in legal policies that aim to coerce and even deter refugees from entering their jurisdiction. Though asylum seekers in Germany and Sweden generally receive refugee status, it is the illegalisation of their journey by various EU measures that undermines refugee protection. Carrier sanctions, in particular, make it impossible to reach a European country safely and the most vulnerable individuals across the world turn to most dangerous, life risking journeys to reach asylum as a consequence. Costello thus questioned whether Europe is facing a ‘refugee crisis’ or a ‘rule of law crisis’.

The demise of European public law and consequences for Türkiye

The debate that followed the colloquium papers focussed on the consequences of the signs of demise of GPL in Europe for Türkiye. Historically, Türkiye has been in the position of emulating European public law standards in order to develop its own political and judicial system. If European public law declines, how could it affect Türkiye, including the asylum seekers and those who are under temporary protection? Colloquium participants concluded the debate with the understanding that basic principles that make up the fabric of GPL, in particular, respect for human rights and rule of law, must be defended at multiple levels both within Türkiye and in Europe, and that European support for GPL cannot be easily taken for granted in the face of popular national movements that seek to bring law back into the national borders.