14 - The UK’s Compliance with the ICCPR and ECHR: A Tale of Two Treaties

Summary

This chapter argues that enforceable decisions by treaty bodies are central to ensuring that international human rights laws are respected domestically. Taking the UK as an example, this chapter compares the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR). The chapter demonstrates that the ECHR has been used increasingly by the UK’s courts to protect individuals’ rights, and that the courts have often engaged directly with European Court of Human Rights (ECtHR) decisions. By contrast, although the courts sometimes make limited use of the ICCPR, their approach and its outcome are inconsistent. A similar pattern is observed when the UK’s compliance with both instruments is assessed. Although this may stem from a range of factors, the importance of binding judgments of the ECtHR should not be underestimated: they allow domestic courts to engage directly with a treaty body, and also create a pressure to act. Looking beyond the UK, the chapter concludes that enforceable decisions by treaty bodies have a vital role in ensuring that international human rights laws are respected, and individuals’ rights are protected.

14.1 Introduction

Despite the proliferation of international regimes in recent decades, compliance with treaty obligations remains a topic of much debate.¹ The field of human rights law has seen exponential growth with new treaties aimed at protecting broad categories of rights,² the rights of particular groups,³ or rights within a specific geographic space.⁴ With this range of protected rights has come an array of compliance mechanisms, some successful and others less so.

Scholars have sought to examine and measure the effectiveness of these mechanisms, to understand what works and what does not, as well as to understand why States bind themselves to these instruments. Many scholars look at this from a macro perspective, examining global compliance with particular rights, or using international measures to compare or rank States’ compliance. Examples in this field include Hathaway,⁵ Simmons,⁶ and Landman and Carvalho.⁷ Such works provide an important indication of levels of compliance and the differing success of various treaties in protecting the rights they secure, but they tell us very little about how particular countries experience compliance with their human rights obligations.

This chapter, therefore, examines the question of compliance with human rights treaties at a micro level, looking at the United Kingdom’s (UK) experience with the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The former is an important global treaty with a comparatively weak oversight model, the latter a regional example which is arguably one of the most successful human rights treaties in existence.⁸ In order to carry out this examination, this chapter provides an overview of each treaty’s compliance mechanism before looking at the impact each has had on the protection of human rights in the UK.

The UK has been selected as the basis of this analysis as it was heavily involved in drafting both instruments, and, whilst it has historically had a good record in relation to both, it is currently experiencing a period of significant debate around the future of its human rights protections, making questions about the protections offered by treaties timely.⁹ It is hoped that the lessons learned in the context of the UK, ICCPR, and ECHR will nevertheless be relevant beyond just these contexts and will contribute to the wider debate on human rights treaty compliance. The ICCPR and ECHR have been chosen as they protect similar but not wholly overlapping sets of rights.¹⁰ Whilst the fact that the UK is party to both may mean that the use of these instruments has developed somewhat differently than might be the case in a State which is party to just one, the selection of these instruments allows for a direct contrast of two comparable instruments in a single jurisdiction.

This analysis demonstrates the problems with the trade-off that takes place between designing treaties to which States will be willing to bind themselves, on the one hand, and designing treaties which are possessed of strong and effective compliance mechanisms, on the other. Building on the UK experience, this chapter concludes that strong compliance mechanisms appear central to ensuring the effectiveness of human rights treaties.

14.2 The International Covenant on Civil and Political Rights

The ICCPR has been called ‘probably the most important human rights treaty in the world’ in recognition of its global coverage and wide range of protected rights.¹¹ Despite its importance, however, it serves as an excellent exemplar of the trade-offs required to secure broad global adoption of a human rights treaty. Indeed, the content, compliance mechanisms, and delayed entry into force of the ICCPR all serve to illustrate its difficult beginnings.

It had initially been intended by the United Nations (UN) that there would be a single treaty to protect both the civil and political rights and the economic and social rights contained in the Universal Declaration of Human Rights (UDHR).¹² Disagreement however meant that this was not to be, and the result was the creation of both the ICCPR and International Covenant on Economic Social and Cultural Rights (ICESCR).¹³ The aim of both was to translate the UDHR into a treaty, binding on all States parties which would be ‘backed up by international supervision and enforcement’.¹⁴ There was further discord between States when it came to drafting the ICCPR and in particular its compliance mechanism.¹⁵ One delegate to the drafting committee described the drafting of this mechanism as ‘the most difficult and controversial aspect’ of the whole process.¹⁶ It is perhaps unsurprising then that proposals for compliance mechanisms which included ‘an International Court of Human Rights empowered to settle disputes concerning the Covenant’ were not adopted.¹⁷

Whilst it may not enjoy the quasi-judicial functions some envisaged,¹⁸ compliance with the ICCPR is overseen by the Human Rights Committee (HRC). The HRC is comprised of eighteen individuals who ‘are independent members who do not represent their national states or any other entity’.¹⁹ It has ‘responsibility for monitoring [the ICCPR’s] implementation’,²⁰ a responsibility it discharges in three main ways: ‘the examination of States’ reports, the decision of individual communications, and the writing of General Comments.’²¹

The system of States parties’ reports to the HRC is governed by Article 40 of the ICCPR. These reports provide information on how States parties ‘give effect to the rights recognized in the Covenant and on the progress made in the enjoyment of those rights’.²² The reports also ‘indicate the factors and difficulties … affecting the implementation of the [ICCPR]’.²³ This allows the HRC to focus on issues highlighted by States parties in their self-reporting to inform dialogue between the HRC and States parties.²⁴ Processes exist to allow the HRC to request further reports where necessary or to raise the absence of a report with individual States, but, importantly, the HRC does not have any power to force States parties to accede to such requests.²⁵

The second compliance mechanism is individual communication to the HRC, provided for in the First Optional Protocol to the ICCPR.²⁶ Parties to the Protocol recognise ‘the competence of the [HRC] to receive and consider communications from individuals’.²⁷ The HRC is not empowered to issue judgments, rather its decisions are referred to as ‘views’.²⁸ These are non-binding in nature and lack the legal force of judgments; domestic courts have frequently rejected any assertion that these views are binding.²⁹ Nonetheless, the HRC has made apparent its opinion that States parties ought to comply with these views and act to remedy any violation.³⁰ However rates of compliance with the HRC’s views are low. One study put the compliance rate at around 12 per cent, described as ‘a low figure by any measure’.³¹ There are 116 States parties to the Optional Protocol (from a total of 170 States parties to the ICCPR), but this does not include the UK.³² The UK has noted that it ‘remains to be convinced of the added practical value to people in the United Kingdom of rights of individual petition to the United Nations’.³³

The final mechanism at the disposal of the HRC is the issuing of General Comments. These have evolved to allow for the HRC to comment on matters which are relevant to States parties to the ICCPR, such as the interpretation of specific treaty provisions or the wider obligations of States parties. To date, thirty-seven have been issued.³⁴ Whilst these General Comments are not of themselves related to enforcement of the ICCPR, they ‘have proven to be a valuable jurisprudential resource’ when interpreting the ICCPR.³⁵ These are not discussed in any greater detail here as they are general in nature and are not directed at individual States’ compliance.

As this shows, although there are mechanisms in place to drive compliance with the ICCPR these are limited by the fact that they are non-enforceable: they require States parties to act on the HRC’s dicta, albeit with a treaty obligation to uphold and protect the rights secured by the ICCPR. Particularly for individuals within States, such as the UK, which have not accepted the right to individual petition to the HRC, there is no means by which they can bring complaints against a State. Indeed, in the UK, individuals can do nothing directly to enforce their rights under the ICCPR.

Academic commentary on the effectiveness of UN treaty bodies suggests more widely that there are concerns with the level of compliance they generate. Looking at the perception of the effectiveness of the wider UN human rights treaty body system, one study noted a widespread view ‘that [UN human rights] treaty bodies are only to some extent able to generate public pressure, or even not at all’.³⁶ This negative outlook is further reinforced by Krommendijk’s assessment of the effectiveness of treaty body recommendations, which concluded that, in the countries he surveyed, such recommendations ‘largely remained ineffective … [and] have either been rejected by governments or they have been so vague and broad that they simply did not elicit any follow-up measures’.³⁷ Against this backdrop, the UN has itself noted in respect of treaty bodies that ‘While there have been many cases which could be considered as “success stories”, it is clear that a large number of States fail to apply the remedies as recommended.’³⁸ The analysis which led to this pronouncement included an examination of compliance with the HRC’s views, therefore it seems reasonable to suggest that the general trends seen in relation to the treaty bodies extend to the HRC.

14.3 The UK and the International Covenant on Civil and Political Rights

Although the UK played a significant role in the drafting of the ICCPR,³⁹ no steps have been taken to translate the protections afforded by the ICCPR into UK domestic law.⁴⁰ It is hard to point to any direct impact that treaty membership has had on UK legislation. In the 1980s, ‘the United Kingdom Government’s representative to the UN Human Rights Committee was unable to identify even one case in which the British Courts had made reference to the Covenant’.⁴¹ A decade later, Klug, Starmer, and Weir noted that ‘The United Kingdom ratified the [ICCPR] in May 1976, but has since done nothing substantial to give effect to ratification or even publicly to recognise it.’⁴²

The ICCPR obliges States parties to give effect to the treaty in their own laws,⁴³ but how this happens is a matter for States themselves.⁴⁴ In the UK, despite suggestions to the contrary from the HRC, successive governments have been ‘content to assume … no changes [to UK domestic law] were necessary because the rights and freedoms recognised in the Covenant are inherent in the United Kingdom’s legal system and are protected by it and by Parliament’.⁴⁵

The lack of mandatory oversight of individual cases by a judicial or quasi-judicial treaty body has been suggested as a reason for the UK’s lack of engagement with and knowledge of the ICCPR. It has meant that ‘the HRC has had no opportunity to give a ruling upon United Kingdom compliance with its obligations under the ICCPR in the context of individual communications’.⁴⁶ This in turn has deprived the UK courts of an opportunity to engage more directly with the HRC’s decision-making. Although the HRC is not a court and so dialogue in the sense seen with international courts may not occur, Sandholtz has noted that in States which accept the right to individual petition, views of the HRC relating to that State are ‘available to activists, advocates and courts … to support the expansion of rights’ and courts have been willing to engage with the HRC’s views as they would other courts’ judgments.⁴⁷

The periodic reporting structure does not appear to have spurred UK lawmakers into action when it comes to the protection of the rights contained within the ICCPR. Klug, Starmer, and Weir assert that:

From the UK’s very first report … the [HRC has] been sceptical about the ability of arrangements here to protect human rights in the absence of either constitional [sic] guarantees of such rights or the incorporation of the Covenant in domestic law … scepticism increased when [the HRC] found that the 1979 report failed to refer to the legislative texts and judicial decisions which the government claimed gave protection to the rights and freedoms provided for in the Covenant.⁴⁸

This scepticism has not met with any concerted action on the part of the UK’s executive or legislature, despite the HRC going so far as to question whether ‘the United Kingdom was in fact in a position to “ensure” that the Covenant’s provisions were given proper effect’.⁴⁹ Whilst this situation may have developed to some extent since the HRC said this in 1984, the Committee has continued to raise concerns even after the UK legislated for the protection of some rights more formally in the UK via the Human Rights Act 1998 (HRA).⁵⁰

Given the reticence of the UK to address in any depth its compliance with the ICCPR, and the lack of action to enhance compliance by means of domestic law, it is hard to point to any concrete difference made by the ICCPR to the protection of individual rights in the UK.⁵¹ This lack of change brought about by the ICCPR within the UK is confirmed by an examination of the comments of the HRC in response to the UK’s periodic reporting which consistently highlight concerns.⁵² McGoldrick and Parker suggest that the ICCPR has had some limited impact in the UK,⁵³ but the idea that the ICCPR plays any great role is hard to square with the observations of the HRC, or with research by the author and that carried out some time ago by Klug, Starmer, and Weir.⁵⁴ Even McGoldrick and Parker themselves went on to note that ‘the Covenant is yet to make a marked impact on the consciousness of the British public or on much of the government’.⁵⁵

This general apathy towards the ICCPR in the UK is further demonstrated in the lack of reference to the treaty in domestic judgments. Thus, there were only six references in reported judgments in England and Wales which mentioned the ICCPR prior to the passage of the HRA.⁵⁶ These six cases themselves, moreover, highlight the unwillingness of the courts to engage with the ICCPR in any depth, even when it is directly mentioned. Of the six, the case which addressed the ICCPR in the most detail related to section 133 of the Criminal Justice Act 1988.⁵⁷ The rest did not engage with the ICCPR beyond an initial mention or observation,⁵⁸ and one rejected outright the use of the ICCPR.⁵⁹

The marked lack of engagement with the ICCPR by the UK courts prior to 1998 did not radically improve thereafter with the passage of the HRA and the creation of a greater culture of human rights literacy. In the years after 1998 the number of references to the ICCPR by the courts increased significantly. Nonetheless, these increased references did not generate any significant shift in the quality of the UK’s compliance with the ICCPR.⁶⁰ Indeed, in the majority of cases, the ICCPR was only mentioned briefly and in passing and did not see the courts engaging in any depth with the protections offered. As Figure 14.1, below, shows, despite an increase in references by courts to the ICCPR there is no clear trend in use in the first twenty years after the HRA.

Figure 14.1 Number of cases per year in the higher courts of England and Wales making reference to the ICCPR.

An examination of the HRC’s two sets of concluding observations since 1998 provides examples of the areas of concern. The 2008 document noted twenty-three separate issues for concern in relation to the UK’s compliance with the ICCPR.⁶¹ These included areas such as the detention without charge of terror suspects for extended periods under the Terrorism Act 2006,⁶² the control order regime restricting individual liberties without due process under the Prevention of Terrorism Act 2005,⁶³ and delayed access to lawyers for those detained under the Terrorism Act 2000.⁶⁴ Such concerns, and the others listed, suggest that there are areas in which the protections afforded to individuals under UK law fall short of those offered by the ICCPR. This is despite the fact that the HRA translates the ECHR rights into UK law; the HRC has noted that a range of ‘Covenant rights are not included among the provisions of the [ECHR] which has [sic] been incorporated into the domestic legal order through the [HRA]’,⁶⁵ meaning there can be no challenge under the HRA.

In 2015 the HRC again raised concerns about the UK’s compliance with the ICCPR. In its concluding observations the HRC elaborated further misgivings about the lack of direct applicability of the ICCPR in the UK.⁶⁶ The HRC additionally noted concerns about ‘the lack of a comprehensive mechanism for reviewing existing gaps and inconsistencies between the domestic human rights legal framework and the rights as set forth in the Covenant’.⁶⁷ The long list of other issues suggests that although concerns had shifted slightly from those of the previous reporting cycle, there remained serious reservations on the part of the HRC about the UK’s general level of compliance with its treaty obligations. Thus, for example, the HRC again highlighted counter-terrorism powers under the Terrorism Act 2000,⁶⁸ the power to deprive persons of citizenship, potentially rendering those persons stateless,⁶⁹ and the use of closed material procedures under the Justice and Security Act 2013 in civil cases where issues of national security are raised.⁷⁰

These two sets of concluding observations serve to highlight the range of issues of concern to the HRC in respect of the UK’s compliance with the ICCPR. It is clear from the HRC’s observations that it believes that the current framework of legal protection for human rights is not sufficient to protect all those rights guaranteed under the ICCPR. As this chapter goes on to argue, this is at least partially attributable to the inability of those in the UK directly to approach the HRC by means of individual petition, combined with the lack of strong enforcement powers on the part of the HRC. It also serves to show that the UK’s self-assurance of compliance with the ICCPR is misplaced.

14.4 The European Convention on Human Rights

In common with the ICCPR, the UK had an important role in the development of the ECHR.⁷¹ However, the UK’s motives may at times have been questionable; Bates asserts that the main driver for the UK’s entry into the ECHR system may have been ‘political, “face-saving” considerations’.⁷² There was opposition in the UK to the idea of individual petition with concern that it ‘might be used as a weapon of political agitation’.⁷³ Nevertheless, although sometimes fraught, the ECHR’s drafting process did not present the same levels of difficulty as had the ICCPR.⁷⁴

The ECHR’s system of protection has developed over time.⁷⁵ The early system of enforcement was complex and stemmed, at least in part, from the difficulties in securing agreement for the establishment of a judicial enforcement mechanism, to which various States, including the UK, had been opposed.⁷⁶ Some felt that the ‘machinery set up for enforcing the [ECHR] should not be purely judicial but should be able and competent to give due weight to political as well as legal considerations’.⁷⁷ However, as time went on, this system was overhauled, and the original process was replaced by Protocol 11 which substituted this approach to decision-making with a permanent European Court of Human Rights (ECtHR), with the new system taking effect on 1 November 1998.

The process has since been reformed again by Protocol 14 of 2004 which Bates summarises as aiming ‘to maximise economy of procedure at Strasbourg’.⁷⁸ Judgments of the ECtHR do not provide detail on the action which member States must take to address violations, where these are found: such action is at the discretion of the member State itself.⁷⁹ Where a case is ‘exceptional’ a reference may be made to the Grand Chamber of seventeen judges for judgment.⁸⁰ A decision of the ECtHR is binding on member States.⁸¹ Any judgment of the Grand Chamber is final, whilst other judgments become final where the parties indicate that they do not wish to refer the judgment to the Grand Chamber, where three months have elapsed since the judgment, or where the Grand Chamber rejects a request to refer the judgment.⁸²

Article 46 of the ECHR, as amended by Protocol 14, charges the Committee of Ministers, a body comprised of the foreign ministers of each member State, with overseeing the enforcement of the ECtHR’s judgments. Under Protocol 14, the Committee of Ministers may now refer a member State to the ECtHR for non-compliance.⁸³ In addition to the Committee of Ministers and the ECtHR, the Parliamentary Assembly of the Council of Europe also plays a role in enforcement; its recommendations, resolutions, and opinions inform the work of the Committee of Ministers.⁸⁴ The ECtHR enjoys good levels of compliance with its judgments and the system as a whole has been described as ‘astoundingly successful’,⁸⁵ suggesting that this mix of mandatory judicial oversight (the ECtHR) combined with political supervision (the Committee of Ministers) is highly effective. Indeed, as will be argued, the relative strength of the combination of mandatory judicial oversight and individual petition is closely linked with the UK’s high level of compliance with the ECHR.

14.5 The UK and the European Convention on Human Rights

Although the ICCPR has not resulted in any significant changes to the human rights landscape in the UK, the same is not true of the ECHR. Even before the ECHR was a part of the UK’s domestic law, Lord Bingham asserted that it had played a role in ‘the interpretation of ambiguous statutory provisions, guiding the exercise of discretions, bearing on the development of the common law’.⁸⁶ Examining these areas, it seems fair to assert that prior to the reception of the rights protected by the ECHR into UK law by way of the HRA, the ECHR’s impact was already significant. Summarising the use of international human rights treaties in England and Wales prior to the HRA, Hunt suggests that ‘During … the mid-1970s, domestic judges … not only [displayed] a willingness to interpret domestic law in the light of international human rights instruments, but often considered themselves under an obligation to do so.’⁸⁷ However, as Hunt’s own analysis illustrates this willingness seems to have been almost exclusively focused on the ECHR.

Much of this development was driven by discourse between the UK courts and the ECtHR. The overall number of violations by the UK remained comparatively low during this period, but there was sufficient opportunity for the ECtHR to rule on matters of UK law, giving the UK courts the chance to engage with Strasbourg’s judgments to develop their own reasoning. The judgments of the ECtHR directly impacted the UK’s own relationship with the ECHR system. Thus, whilst Masterman notes that ‘to think that [ECtHR] jurisprudence could be followed or applied in the manner of precedents would be a mistake’,⁸⁸ Beloff and Mountfield show that UK courts set some store by the ECtHR’s rulings when making decisions.⁸⁹ For example, the UK courts relied directly on jurisprudence of the ECtHR in relation to freedom of expression.⁹⁰ It is therefore evident that the domestic courts were willing to look to the work of the ECtHR as part of their decision-making process, suggesting that the courts saw the benefit of dialogue with the ECtHR for the protection of human rights in the UK. This dialogue would not have been possible without the right of individual petition; a right entirely absent in the case of the protections offered by the ICCPR.

The HRA and the translation of the ECHR rights into UK domestic law marked a significant shift in the protection of human rights in the UK. Arguably, the effectiveness, in both legal and political terms of the ECtHR in identifying breaches of individual rights in the UK was a major factor in the decision to move the primary responsibility for the protection of individual rights into the domestic sphere by enacting the HRA. Indeed, concern that traditional methods of human rights protection in the UK were ineffective was ‘reinforced by a perception that the European Court of Human Rights was finding the United Kingdom in violation of the [ECHR] with disquieting frequency’.⁹¹

The nature of the ECHR’s enforcement system also appears to have been one of the reasons behind the decision to enact the HRA. The government of the day noted:

The European Convention is not the only international human rights agreement to which the United Kingdom and other like-minded countries are party, but … it has become one of the premier agreements defining standards of behaviour across Europe. It was also for many years unique because of the system which it put in place for people from signatory countries to take complaints to Strasbourg and for those complaints to be judicially determined. These arrangements are by now well tried and tested … They therefore afford an excellent basis for the Human Rights Bill which we are now introducing.⁹²

Since the HRA entered into force there have been increasingly few applications from the UK to the ECtHR and ‘the UK has among the lowest number of applications per year allocated for a decision. It also has a lower percentage of these applications declared admissible than most and loses proportionately fewer of the cases brought against it than most’.⁹³

Whilst the biggest driver in the UK’s increased compliance in the last two decades is undoubtedly the HRA and its translation of the ECHR rights into domestic law, a number of points should be made. First, the fact that the courts of the UK are now required to view human rights questions through the lens of the rights protected by the ECHR means that there is increased opportunity for proceedings in the national courts to address complaints under the ECHR. This in turn also allows the national courts to develop their dialogue with the ECtHR.⁹⁴ Thus, judgments of the ECtHR continue to play an important role in the protection of the Convention rights within the UK. Second, the political importance and power of enforceable judgments of the ECtHR should not be underestimated. As the row between the UK Parliament and the ECtHR on prisoner voting showed, it is very hard to face down the legal and political pressure of an adverse ruling by the Court even where political red lines have been drawn.⁹⁵

It is clear, therefore, that the design of the enforcement mechanism of the ECHR plays an important role in the high level of compliance that the UK enjoys. The UK has developed its domestic human rights protections to reflect those envisaged under the ECHR, and the nature of the ECtHR’s judgments has allowed the domestic courts to engage with their counterparts in the ECtHR on questions of law. Moreover, the success of the ECHR system, coupled with the political impact of adverse judgments of the ECtHR, was a major factor in the decision to enact the HRA and bring the rights contained in the ECHR ‘home’ into UK domestic law.⁹⁶

14.6 Analysis

As Heyns and Viljoen have noted, ‘The success or failure of any international human rights system should be evaluated in accordance with its impact on human rights practices on the domestic … level.’⁹⁷ With this in mind, the wide gulf between the impact of ICCPR and ECHR in the UK suggests that the ECHR has been a much greater success.

Whilst the UK’s track record at the ECtHR has improved over the past decades, an improvement which has accelerated significantly since 1998, there was already a movement towards use of the ECHR in domestic courts long before this was envisaged by domestic law. In 1998 when the HRA translated ECHR rights into UK domestic law, UK judges were empowered more overtly to have regard to the dicta of the ECtHR in their own decision-making.⁹⁸ More recently still, the UK’s Supreme Court has demonstrated its willingness to keep British jurisprudence pegged to the ECtHR’s interpretation of the ECHR,⁹⁹ further highlighting the continuing relevance of the ECtHR as a point of reference for domestic courts. Commentators and judges have pointed to the relatively broad impact of the ECHR on a range of areas, including in ‘the interpretation of ambiguous statutory provisions, guiding the exercise of discretions [and] bearing on the development of the common law’.¹⁰⁰

By contrast, the UK’s compliance with the ICCPR receives little attention from the UK courts or from Parliament and this has not dramatically improved over the course of the UK’s involvement with the treaty.¹⁰¹ Whilst there may be a number of reasons at play for this vast disparity, given the ECtHR’s role in driving compliance with the ECHR it is impossible to underplay the importance of mandatory judicial oversight of treaty bodies in ensuring that States comply with their treaty obligations. As the majority of interaction between the UK and HRC takes place quietly by means of periodic reporting and concluding observations and receives little publicity, public awareness and ownership of the rights protected by the ICCPR are almost non-existent.¹⁰² Moreover, the nature of periodic reports and concluding observations means that the UK courts are unlikely to engage with these in developing their own jurisprudence, preferring instead the surer ground offered by decisions of an international court.

Examining the UK experience, it seems fair to conclude that strong judicial or quasi-judicial compliance mechanisms are essential in ensuring the effectiveness of human rights treaties. However, it is acknowledged that this may deter States from becoming party to such conventions. Hathaway, drawing together empirical research on the effect of international human rights law, highlights the apparent trade-off between States’ participation in and the effectiveness of human rights treaties.¹⁰³ States are more likely to participate in treaty systems with weaker compliance models. As Hathaway notes, ‘Where enforcement is stronger, all else being equal fewer countries should be expected to commit. However, those fewer adherents will be more likely to comply with the treaty than they would be if the treaty were less strongly enforced.’¹⁰⁴

This raises an important question: are the gains of greater compliance significant enough to justify the loss of engagement? In ‘Do Human Rights Treaties Make a Difference?’ Hathaway presents some concerning findings in relation to States’ willingness to engage with human rights treaties: in some cases, membership of such treaty systems was shown to correlate with poorer performance in terms of compliance with the protected rights.¹⁰⁵ This suggests that the dichotomy might be starker than first presented. On the one hand strong compliance systems provide protection for human rights but may discourage States from becoming party to a treaty because of the risks associated with breaching treaty obligations. However, on the other hand, weaker systems allow States cynically to tether themselves to such structures to gain from the wider political and economic benefits they may bring without raising human rights standards in any meaningful way.¹⁰⁶ Simmons is rather more optimistic about the positive changes brought about by instruments, such as the ICCPR, believing that they can effectively empower domestic actors to bring about change.¹⁰⁷ Nevertheless, she acknowledges that such treaties cannot ‘solve all problems’.¹⁰⁸ Whilst there is not enough space to explore this in greater depth here, it is a question which merits further research, particularly in the context of increasing antagonism to global institutions, such as the UN.

In any event, the UK’s experience with the ICCPR and ECHR serves to underline the difference which a strong compliance mechanism (and a State’s active engagement) can make to the domestic effectiveness and relevance of a human rights treaty. Given the broad range of rights protected by the ICCPR, the lack of engagement with the ICCPR and its compliance machinery represents a missed opportunity for the further development of human rights in the UK. If the pattern witnessed here is mirrored with respect to other human rights instruments in the UK, as well as in other States more broadly, it should give pause for thought about the way in which human rights are protected, and what can be done to strengthen the oversight of these protections within existing frameworks.¹⁰⁹

14.7 Conclusion

This chapter has illustrated the differing outcomes brought about by differing models of compliance mechanism in human rights treaties. Using the UK’s experience with the ECHR and ICCPR as a lens, it has argued that the former – characterised by a strong, judicial compliance mechanism – can be linked with better human rights outcomes. By contrast, the ICCPR, with its weaker, reporting-based compliance monitoring and opt-in right of individual petition, has not had the same impact.

Building on the UK experience it seems reasonable to conclude that strong compliance mechanisms in which all States parties are expected to participate are important in ensuring the effectiveness of human rights treaties. Whilst these findings relate to the UK, there is no reason to believe that the lessons learned in this context cannot be applied more widely to contribute to the debate on how human rights are best protected. A regime of human rights protection centred on strong compliance monitoring may deter States from becoming party to a human rights treaty, yet the benefits for individuals’ rights protection may be enough to outweigh this.

This chapter does not seek to argue that the vast advances in rights protection since 1945 have not dramatically improved the attainment of human rights. Rather, it aims to help to safeguard the gains achieved and to allow these to be further built upon to ensure that rights protection is strengthened, and that human rights courts and treaty bodies are in a better position to ensure that the rights they steward are respected, protected, and fulfilled.