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United Kingdom

The UK is party to CERD,[1] ICESCR,[2]i ICCPR,[3] [4] CEDAW« CAT,[5] [6] [7] the CRC,45 and the CRPDA6 Thus, opinions stemming from the associated treaty bodies should be acknowledged and observed ‘in good faith’ in accordance with the Vienna Convention on the Law of Treaties, though none of these treaties has been officially incorporated into UK law. The trend of referencing treaty body documentation in the UK began shortly after the adoption of the Human Rights Act[8] [9] [10] [11] in 1998. It, however, has taken some time for the products of the treaty bodies to evolve into and become accepted as more mainstream interpretative tools in the UK domestic legal system. Since the inception of the UK Supreme Court, intermittent reference to the treaty bodies has increased and this has trickled down to lower courts in their efforts to maintain coherence with the rulings of the highest court.

Article 2 of the Human Rights Act 1998 largely shapes the assessment of human rights and the expansion of rights in the UK. Article 2 provides:

  • 2 Interpretation of Convention rights.
  • (1) A court or tribunal determining a question which has arisen in connection with a

Convention right must take into account any—

  • (a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,
  • (b) opinion of the Commission given in a report adopted under Article 31 of the Convention,
  • (c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or
  • (d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.

Thus whilst it outlines specifically that UK courts must take into account the jurisprudence of the European Court of Human Rights and opinions of other European Convention on Human Rights organs, there is no direct reference to jurisprudence emanating from the UN treaty bodies. However, this omission has not prevented British courts from utilizing treaty body jurisprudence in the course of interpreting human rights issues that come before them.

In the early months of 2014 the UK Supreme Court reflected on general comments in a handful of cases. For example, Kennedy v. The Charity Commission4% recounted the evolution of the freedom of expression under Article 10 of the ECHR and how it has been expanded to include access to information in order to facilitate expression, particularly in the context of a public watchdog.49 The Court noted that the European Court of Human Rights relied on General Comment No. 34 in which the Human Rights Committee5° (HRC) underscored that ‘the right of access to information includes a right whereby the media has access to information on public affairs’^1 Thus the Supreme Court ‘confidently conclude[d] that a right to require an unwilling public authority to disclose information can arise under article 10’52 because the right of access goes hand in hand with freedom of expression, as outlined in the HRC’s interpretation of Article 19 of the ICCPR. This does not mean that limitations cannot be put in place through legislation, such as those limitations established by the Freedom of Information Act. It, however, demonstrates that in the UK the domestic evaluation of the freedom of expression tracks the interpretation provided by the HRC in its general comment. This linkage strengthens and refines the shared universal dimensions of the right to free expression.

Examination of free movement protected by ICCPR Article 12 is a recurrent theme on which a multitude of UK courts have looked to the treaty bodies for guidance. For example, an administrative judge invoked the HRC’s General Comment No. 27 on Freedom of Movement in the 2010 Agyeman case.53 The judge pointed out that despite the fact that the ICCPR was not incorporated into domestic law, the HRC’s interpretation of the Article 12 freedom of movement in paragraphs 19 and 21 of the general comment were rights flowing to British subjects by virtue of their citizenship. 54 Specifically, the focus was the deprivation of the right of a person to enter his own country. The dicta of the case recognized that this right is set forth in domestic, European, and international law, though it is not an unfettered right. As outlined in the comment, the interference with an individual’s right to return to his country of residence may only be interfered with to the extent that is ‘reasonable in particular circumstances’.55 In this case, the Court determined that the claimant in the case had to accept the difficulties with which he dealt in relation to obtaining a new British passport. It reasoned that the difficulties were justified in light of the security concerns of the age in which we live, even for a British citizen returning home. Thus the general comment, once again, was used to refine the outer limits of a right by highlighting the restrictions that the state might legitimately employ in the protection of free movement.

Immigration and asylum actions are possibly the most frequent cases to invoke the opinions of the treaty bodies in the UK, but this is largely due to the frequency of such cases both at the administrative and higher court levels. In 2012, the UK Supreme Court examined RT & KM (among others) v Secretary of Stated6 a series of cases revolving around asylum-seeking refugees from Zimbabwe who did not only claim not to support the current Zimbabwean regime but simply had no political views whatsoever. The applicants argued that if returned to Zimbabwe it would [12] [13] [14] [15] [16] [17]

be necessary for them to lie and profess support for the regime in order to avoid persecution in light of the Zimbabwean authority’s view that ‘you are either with us or against us’.57 The Court underscored that there was ‘no support in any of the human rights jurisprudence for a distinction between the conscientious nonbeliever and the indifferent non-believer’.58 Thus, the Court determined that the claimants should not be denied asylum simply because they had no political views nor should the alternative to asylum be that the claimants live a lie in their home state simply to avoid persecution. In considering the exercise of the right to freedoms of thought, conscience, and religion as well as the freedom of expression, the Court tracked the HRC’s approach to these rights in General Comment No. 22 on Article 18 (30 July 1993) and in General Comment No. 34 on Article 19 (12 September 2011).59 By referencing the HRC jurisprudence spanning several decades, the UK Supreme Court demonstrates an appreciation for the evolving nature of the right and the multifaceted dimensions in which the right may be implicated.[18] [19] [20] [21] It is clear that the Court worked to maintain a consistent interpretation of the rights involved by paying great deference to the rights as outlined in the HRC’s comments. By utilizing the HRC interpretation of the right to freedom of thought, conscience, and religion the Court aids in building a broad consensus on the expansive nature of the right.

Continuing a long line of asylum and immigration cases specifically involving children, in early March of 2011 a Civil Court of Appeal judge found that five paragraphs of the CRC Committee’s General Comment No. 6 on Treatment of Unaccompanied and Separated Children Outside their Country of Origi^[22] were particularly relevant in DS (Afghanistan).[23] [24] [25] The specificity with which the judge referred to the general comment left no room for questioning the importance of the comment as a tool for interpreting the validity of government actions. The previous month, the Supreme Court had noted in ZH (Tanzania) that the most relevant legislation to the question of the effects of deportation on a child was Article 3(1) of the CRC. Article 3(1) establishes the ‘best interests of the child’ as the primary consideration for all actions involving children.63 Though a different child-related immigration/asylum issue was asked from that in DS (Afghanistan), both courts relied on the best interests of the child derived directly from the CRC and elaborated upon by the CRC Committee’s general comments.64 Notably, the

ZH (Tanzania) opinion also cited the CRC Committee’s General Comment No. 6 and articulated that:

Exceptionally, a return to the home country may be arranged, after careful balancing of the child’s best interests and other considerations, if the latter are rights-based and override best interests of the child. Such may be the case in situations in which the child constitutes a serious risk to the security of the State or to the society. Non-rights based arguments such as those relating to general migration control, cannot override best interests considerations.[26] [27] [28] [29]

With the Supreme Court recognizing the CRC Committee’s opinion, it is no wonder that the decision created a great ripple effect. Following on from ZH (Tanzania), the Mansoor case, in a very similar fact pattern and relying heavily on that case, repeated the acceptance of CRC General Comment No. 6.66 The Mansoor decision noted that the UK Supreme Court has adopted:

the approach recommended by international bodies, including the general comments of the rights of the child and the UNHCR guidelines, to the extent that a rights-based approach must be brought into being in order to justify accumulation of factors which could be said to outweigh the best interests of the child as a primary consideration in these casesU

Thus, the progeny of ZH (Tanzania) continues to reinforce the strength of treaty body general comments as an integral consideration for interpreting UK law, whether as some form of evolving law or as an interpretative tool.

The use of general comments by the UK judiciary presented here demonstrates that these treaty body products aid in developing a more complete picture of international human rights obligations. British courts do not always utilize the chisel approach. The Agyeman case could be viewed as diminution of rights in the restrictions it places on access to passports. However, human rights are not guaranteed unfettered exercise when a legitimate restriction is deemed necessary. The selection of cases here highlights the potential for a common interpretation of international human rights driven by treaty body general comments.

  • [1] The UK signed on 11 Oct. 1966 and ratified on 7 Mar. 1969.
  • [2] 41 The UK signed on 16 Sept. 1968 and ratified on 20 May 1976.
  • [3] 42 The UK signed on 16 Sept. 1968 and ratified on 20 May 1976.
  • [4] The UK signed on 22 July 1981 and ratified on 7 Apr. 1986.
  • [5] The UK signed on 15 Mar. 1985 and ratified on 8 Dec. 1988.
  • [6] The UK signed on 19 Apr. 1990 and ratified on 16 Dec. 1991.
  • [7] 46 The UK signed on 26 Feb. 2009 and ratified on 7 Aug. 2009.
  • [8] UK, Human Rights Act 1998: Elizabeth ll. Chapter 42 (London: The Stationery Office, 1998),An Act to give further effect to rights and freedoms guaranteed under the European Convention onHuman Rights’.
  • [9] 48 Kennedy v. The Charity Commission [2014] 2UKSC 20, [2014] WLR 808.
  • [10] Kennedy v. The Charity Commission [2014] 2UKSC 20, [2014] WLR 808, para. 186.
  • [11] 5° The Human Rights Committee is the monitoring mechanism attached to the ICCPR.
  • [12] HRC, General Comment No. 34: Article 19: Freedoms of Opinion and Expression, UN Doc. CCPR/C/GC/34 (2011), para. 18.
  • [13] 52 Kennedy v. The Charity Commission [2014] 2UKSC 20, [2014] WLR 808, para. 190.
  • [14] Derrick Agyeman v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State forthe Home Department, CO/8185/2006, [2010] EWHC 2180 (Admin) (11 Aug. 2010), at para. 13.
  • [15] 54 Derrick Agyeman v. Secretary of State for Foreign and Commonwealth Affairs, Secretary of State forthe Home Department, CO/8185/2006, [2010] EWHC 2180 (Admin) (11 Aug. 2010), paras 12—13.
  • [16] HRC, General Comment No. 27: Freedom of Movement, UN Doc. CCPR/C/21/Rev.1/Add.9(1999), para. 21.
  • [17] RT & KM (among others) v. Secretary of State [2012] UKSC 38, [2012] 4 All ER 843.
  • [18] RT& KM (among others) v Secretary of State [2012] UKSC 38, [2012] 4 All ER 843, para. 44.
  • [19] RT & KM (among others) v. Secretary of State [2012] UKSC 38, [2012] 4 All ER 843, para. 45,relying on HJ (Iran) v. Secretary of State for the Home Department [2011] 1 AC 596.
  • [20] 59 RT & KM (among others) v. Secretary of State [2012] UKSC 38, [2012] 4 All ER 843, para. 33.
  • [21] HRC, General Comment No. 22 on Article 18 (30 July 1993); HRC, General Comment No.34 on Article 19 (12 Sept. 2011).
  • [22] CRC Committee, General Comment No 6: Treatment of Unaccompanied and SeparatedChildren Outside their Country of Origin, UN Doc. CRC/GC/2005/6 (2005).
  • [23] DS (Afghanistan) v. Secretary of State for the Home Department [2011] EWCA Civ 305, para. 65.
  • [24] ZH (Tanzania) (FC) v. Secretary of State for the Home Department [2011] UKSC 4, para. 23.
  • [25] 64 DS (Afghanistan) v. Secretary of State for the Home Department [2011] EWCA Civ 305, para. 22;ZH (Tanzania) (FC) v. Secretary of State for the Home Department [2011] UKSC 4, para. 23.
  • [26] ZH (Tanzania) (FC) v. Secretary of State for the Home Department [2011] UKSC 4, para. 27.
  • [27] The Queen on the application of Mansoor v. Secretary of State for the Home Department [2011]EWHC 832 (Admin), para. 27, citing UN CRC, General Comment No. 6 on the Treatment ofUnaccompanied and Separated Children Outside their Country of Origin, UN Doc. CRC/GC/2005/6 (2005), para. 86.
  • [28] 67 The Queen on the application of Mansoor v. Secretary of State for the Home Department [2011]EWHC 832 (Admin), para. 27, citing UN CRC, General Comment No. 6 on the Treatment ofUnaccompanied and Separated Children Outside their Country of Origin, UN Doc. CRC/GC/2005/6 (2005), para. 32.
  • [29] S v. Makwanyane and another, 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665),para. 35.
 
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