What Is Incorporation And Why Does It Matter Presented by: Dr. McCall Smith Date: 4 February 2023 UN Human Rights Treaties (& UK ratification) - A globally responsible Wales - Convention on the Elimination of all forms of Racial Discrimination (CERD) • - International Covenant on Civil and Political Rights (ICCPR) • - 1991 Convention on the Rights of Persons with Disabilities (CRPD) • - 1988 Convention on the Rights of the Child (UNCRC) • - 1986 Convention against Torture (CAT) • - 1976 Convention on the Elimination of Discrimination against Women (CEDAW) • - 1976 International Covenant on Economic, Social and Cultural Rights (ICESCR) • - 1969 2009 Convention on the Rights of Migrant Workers and their Families Convention on the Protection of All Persons from Enforced Disappearance - European Convention on Human Rights EU Social Charter • 1951 Incorporation - Legal effect - Enforce emend - Cultural change Process & Terminology - - - International Law & Policy Debates • Treaty • Ratification • Advocacy Incorporation • International law • National law Implementation • Protect • Respect • Remedy Incorporation - A narrow conception of implementation, focusing predominantly on ensuring direct application and enforceability in national law. - Enforceability generally refers to the availability of institutions and procedures to provide a remedy for the breach of a right. A human rights remedy considers how these institutions both prevent breaches and deliver effective redress when a right is violated, which includes both judicial and administrative paths. The key is that breaches become justiciable. - Direct incorporation - through transformation or transposition of an international treaty, the treaty will form part of the national law, be binding on public agencies and enforceable in court. (e.g. HRA 1998) - Notably, transposition can be through legislation declaring a treaty is part of the national law without copy and pasting all of the text. (incorporation by reference) - Indirect incorporation - 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. (e.g. Art 5, Chilean Constitution, further legislation needed) - Piecemeal or sectoral - 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. Examples of international human rights law in UK law even without direct or indirect incorporation. - Legislation - UK Criminal Justice Act 1988, sectoral incorporation of the prohibition against torture - criminalizes torture. - Case law - Kennedy v the Charity Commission [2014] 2 UKSC 20 - relied on HRC General Comment 34 on freedom of expression and the expanding nature of the right. - Public policy - Scottish Government's policy of conducting CRWIAs in order to fulfil Ministerial duties under the Children and Young Person (Scotland) Act 2014. Treaty Bodies - Review Periodic Reports - General Comments - Procedures of Inquiry - Individual Communications - Days of Discussion - Across all of the functions of the treaty bodies is where the language of human rights is developed. • Treaties establish a baseline • Treaty bodies tell us what that baseline is (a legal concept) • Treaty interpretation evolves with society (and technology) • The treaty & interpretation language is important, but not the only important source... Human Rights Council - Another source of interpretation of human rights obligations but not necessarily treaty specific. This is the political dimension of human rights monitoring at UN level. - Special Procedures • Special Rapporteurs (Poverty, Prof Philip Alston) • Working Groups (Arbitrary Detention) • Can be thematic or country specific (Human Rights in Cambodia, Prof Rhona Smith) Universal Periodic Review - These also contribute to understanding where Scotland sits in terms of international human rights standards but are distinct from treaties.