Dr Kasey McCall-Smith, Senior Lecturer in Public International Law, University of Edinburgh
The Labour Party’s 2019 Annual Conference has drawn significant attention, particularly for its resolution to eliminate private schools in the UK. This highlights the need to examine politicians’ passionate pronouncements in light of legal realities, especially international and human rights law. Similar situations arose earlier this year when Theresa May presented a unilateral statement on the UK’s interpretation of the Withdrawal Agreement Protocol on Ireland/Northern Ireland and when Geoffrey Cox MP incorrectly suggested that the Vienna Convention on the Law of Treaties (VCLT) offered a simple solution to the Brexit withdrawal agreement and the backstop. These events demonstrate why the UK government and Parliament should avoid relying on international treaty law as a remedy for Brexit disagreements.
The Labour Party’s September 22 vote to include a “commitment to integrate all private schools into the state sector” in its manifesto is another instance where politicians should exercise caution when proposing actions that might infringe upon rights safeguarded by international agreements.
Putting aside the debate on private education’s merits, Labour’s proposal presented minimal practical changes from previous policy suggestions to reduce tax benefits for independent schools, which educate roughly 6-7% of UK children. The most significant aspect is the questions it brings up about Labour’s grasp of any UK government’s limitations in restricting international human rights obligations, which have long been binding and integrated into UK law. This policy proposal specifically raises concerns about the right to education as defined by Article 2 of the first Protocol (P1) to the European Convention on Human Rights (ECHR).
Essentially, the proposed measure eliminates the choice of sending children to fee-paying schools in the UK, an option that, in some but not all circumstances, allows parents to exercise “their own religious and philosophical convictions” (P1 Article 2). Whether such “convictions” apply to private education and whether abolishing private schools alone would violate this right is debatable. Beyond removing decision-making power from parents and the ongoing debates about private versus public education or the margin of appreciation, there are other legal considerations when political parties politicize international legal obligations.
Can the current or a future UK government invalidate a single article or multiple articles of the ECHR’s first Protocol? Using the right to education as an example and assuming the proposed policy is argued to violate that right, let’s examine the relevant international law analysis to see if the UK can effectively change its mind about applying its treaty obligations.
First, we must determine the status of the first Protocol to the ECHR, ratified and in effect for the UK since 1952. P1 Article 5 states that “the provisions of Articles 1, 2, 3, and 4… shall be regarded as additional Articles to the Convention, and all the provisions of the Convention shall apply accordingly.” These articles are effectively incorporated into the ECHR and hold the same weight as those in the original Convention, a point reinforced by the UK Human Rights Act 1998 s1(1) (which notably excludes P1 Article 4).
Could the UK government, however, cease to follow an article of the ECHR or one of its protocols? Because the first Protocol is integrated into the ECHR framework, the original Convention’s rules apply. The legitimacy of a state’s assertion that it will no longer fully apply a treaty provision must be investigated. According to the VCLT treaty rules and customary international law, the only way to partially or completely exclude a treaty obligation is through reservation. However, under both ECHR Article 57 and VCLT Article 19, reservations can only be made when signing or ratifying a treaty. As a result, reservations are not an option for the UK decades after ratifying the Convention. The only possible exception, discussed further below, is denunciation and re-ratification with a new reservation, as Trinidad and Tobago did with Optional Protocol 1 to the ICCPR. This procedure is not currently recognized in ECHR practice or customary treaty law and would undoubtedly establish a risky precedent.
Some have also inquired about the possibility of “denouncing” a single article. ECHR Article 58 governs denunciation of the Convention, but it only addresses denunciation of the entire Convention. It makes no mention of denouncing a specific article. When a treaty is silent on procedural matters, the VCLT’s default rules are used to fill in the gaps. VCLT Article 44 expresses a preference for not separating individual treaty provisions by denunciation, withdrawal, or suspension unless the treaty expressly permits it. Moreover, Article 44 should be read in conjunction with Articles 56 and 60 of the VCLT. Article 56 of the VCLT addresses denunciation when a treaty is silent on the subject, but the ECHR is not. Article 60 of the VCLT addresses the termination or suspension of a treaty due to a breach. Because the breach must be committed by another state, the UK cannot invoke Article 60 if it violates the ECHR. It is safe to assume that denouncing a single article or even a group of articles is not an option.
Derogation is the only remaining option for abrogating a single article. While ECHR Article 15 states that some fundamental rights may never be derogated from, it adds that “[i]n time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation.” While the right to education, as well as most other rights, could be derogated from, it is difficult, if not logically impossible, to imagine how such a public emergency could justify a policy of prohibiting private education in and of itself.
The last few months have taught us that politicians should be aware of the legal ramifications of their policy strategies and ambitions before resorting to rhetoric. This is a timely reminder that, regardless of its future status in the EU, the UK will continue to have international and regional obligations, especially for those seeking to protect the UK from global interference.
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