Kasey McCall-Smith
Brexit and Rights Engagement Network
International human rights treaties universally contain a call to States parties to give legal effect to the obligations found in the treaty text. Article 2(2) of the International Covenant on Civil and Political Rights, for example, obliges states ‘to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant’. However, as has been often noted, a treaty entering into force and a treaty being in force in the State are not the same. Up to now, the UK approach to implementing international human rights treaties epitomises this distinction; it has ratified 11 UN human rights treaties and associated optional protocols plus a number of the Council of Europe human rights treaties, but has never directly incorporated any of them into its national law, save the European Convention on Human Rights. Thus these unincorporated treaties generally are not enforceable in national law. This reflects the common approach to international human rights treaties exercised by many States.
The UN Convention on the Rights of the Child (UNCRC) is a prime example. As the most widely ratified international instrument, the content of the UNCRC has been voluntarily accepted by 196 States. The impressive number of States parties belies the reality of practical implementation across the constituent States parties as each State has its own particular view as to which rights children may exercise and who, in fact, is a child. The practical difficulties in implementation stem from a range of legal and political realities defined by the culture in which each government operates.
‘Implement’ is a flexible term
Most States that have made some effort to incorporate human rights treaties have been selective in implementing – giving effect to – obligations, opting for an á la carte selection of rights protections rather than the full menu of rights. And while international law demands that States parties comply with their human rights treaty obligations ‘in good faith’, the law does not dictate the method through which treaty obligations are recognised at the national level. There are variable, flexible approaches to translating human rights obligations into national law. In terms of implementation in the UK, the distinct devolution settlements pose further layers of legalities to navigate when it comes to incorporating human rights treaties.
What is meant by ‘incorporation’?
In terms of human rights treaties, incorporation is often viewed as a narrow conception of implementation, focusing predominantly on enforceability in national law and precisely linked to a legal recognition of the treaty obligations through law reform and judicial decisions. However, incorporation must also be understood in a broader sense in order to appreciate that incorporation can only be effective if a multitude of approaches are taken to fulfil the promise of incorporation and the ultimate realisation of human rights.
There are three general approaches to human rights treaty incorporation: direct incorporation, indirect incorporation and sectoral or piecemeal incorporation. Direct incorporation holds that through transformation or transposition, the treaty will form part of the national law, be binding on public agencies and enforceable in court. This method of incorporation may be on a treaty-by-treaty basis or applicable to all treaties or certain types of treaties. The UK Human Rights Act 1998 is often cited as a good example of the treaty-by-treaty approach to direct incorporation where the Act outlines that it is intended ‘to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights’.
Indirect incorporation, alternatively, gives the treaty some effect in national law by means of another legal mechanism. This is generally achieved through a constitutional reference to ratified human rights treaties, however, effectiveness will be tempered based on whether the provisions have ‘direct effect’. For example, France is a monist State and ratified human rights treaties take precedence over domestic law once published. However, treaties such as the UNCRC are viewed as non-self-executing and not directly justiciable without further action by the French parliament. Thus, indirect incorporation without further comprehensive implementing legislation undermines the fact that the treaty is ‘part’ of the national law as there is no real enforcement potential.
The third approach is a piecemeal or sectoral approach, which sees various provisions of the treaty being integrated into national laws that are related to the subject matter of the specific treaty provisions but at some level less than incorporation of the full treaty. For example, Australia’s Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 specifically amended the Australian Criminal Code in order to directly incorporate certain provisions of the UN Convention against Torture and makes specific reference to the International Covenant on Civil and Political Rights. Some observers would argue that this is not ‘incorporation’ at all, but cherry-picking of obligations and, as is often the case, done without direct reference to the treaty.
Incorporation in the devolved nations
In the wake of the Brexit referendum in the UK, devolved nations have been scrambling to ascertain how best to protect human rights in a post-Brexit Britain. Each nation’s approach to human rights protection is driven by its specific constitutional arrangement and internal politics. Navigating the devolved competences necessary to realise human rights is becoming increasingly complex as a result of poor UK government leadership and its failure to clarify positions of economic and social rights as well as civil and political rights in a post-Brexit world.
For this reason, incorporation of human rights treaties is a topic of increasing interest. For example, across the devolved nations different approaches have been exercised or mooted in regard to incorporation of the UNCRC. Globally, piecemeal or sectoral incorporation appears to be the predominant approach to implementing the UNCRC and has thus far been the approach taken in Scotland. The current Children (Equal Protection from Assault) (Scotland) Bill before the Scottish Parliament exemplifies the piecemeal approach and is designed to give effect to UNCRC Article 37 by prohibiting corporal punishment of children, which is considered to amount to cruel, inhuman or degrading treatment. The Scottish Government has repeatedly committed to incorporating the ‘principles’ of the UNCRC in Scotland while explicitly avoiding a commitment to direct incorporation. In Wales, indirect incorporation has been the path chosen to give effect to the UNCRC through an obligation of due regard on Welsh ministers following the adoption of the Rights of Children and Young Persons (Wales) Measure 2011. Wales has further entrenched children’s rights protections through a variety of piecemeal measures. Northern Ireland has also typically followed the piecemeal approach to safeguarding children’s rights but has not gone as far as either Scotland or Wales in terms of government commitment to incorporating of the UNCRC. Its Children’s Services Co-operation Act (Northern Ireland) 2015 provides that ‘regard is to be had to any relevant provision of the [UNCRC]’ when determining the well-being of children under the Act. In these devolved contexts, it will take a longer period of study before a firm assessment of these approaches can be made.
In these challenging times it is incumbent upon devolved governments to fill the gap left by the UK government and ensure human rights protections for their inhabitants, children or otherwise, though incorporation and other measures of human rights implementation. The range of measures must also acknowledge the ‘living’ dimension of human rights treaties and therefore be agile enough to accommodate the evolution of rights. Implementation is therefore a holistic term encompassing incorporation and other actions with far-reaching implications trickling into every aspect of a State’s social and governance structures. With those structures in flux in the UK, the devolved nations must reevaluate their individual approaches to human rights protection and survey not only what will be lost in post-Brexit UK, but also all that there is to gain by securing a human rights forward future.
Kasey McCall-Smith
University of Edinburgh
Dr Kasey McCall-Smith is Lecturer in Public International Law and programme director for the LLM in Human Rights at Edinburgh Law School. Her research focuses primarily on treaty law and how treaties are interpreted and implemented at the domestic and supranational levels.
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