The proposed Withdrawal Agreement breaches international human rights conventions

The proposed Withdrawal Agreement breaches international human rights conventions

On Friday Michel Barnier told a meeting of EU27 ambassadors the EU has a “duty” to stand firm on its key Brexit red lines and not compromise on the draft Withdrawal Agreement. However, what seems to have escaped M. Barnier’s attention – and that is the most generous way of putting it – is that some of those red lines are serious breaches of international human rights conventions and could even lead to an investigation by the UN Human Rights Committee.

The most important area where the draft text breaches human rights conventions to which all EU member states have signed up is the requirement that the UK cannot leave the customs backstop without the permission of the EU. There is is a further potential breach over the division of the UK created by the EU insistence that Northern Ireland be subjected to additional EU regulations over which they will have no say.

Specifically, the draft Withdrawal Agreement breaches the International Covenant on Civil and Political Rights (ICCPR). The important thing about the ICCPR is that unlike many other human rights conventions, such as the Universal Declaration of Human Rights, the ICCPR has legal teeth because countries ratifying are required to give it legal status in their country. That means that any breach of it can be subject to judicial review. The very first article of the ICCPR states:

Article 1

  1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
  2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.
  3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

Please note that first section:

All peoples have the right of self determination. By virtue of that right they freely determine their political status and freely pursue their economic… development.

Requiring the UK to sign a treaty taking away that right to determine our own political and economic development i.e. leave the backstop, without the EU’s permission, is a clear violation of Article 1 of the ICCPR.

Now, the EU actually makes great play of the importance of the ICCPR; in fact, it is a major tool of EU foreign policy. Through the EU’s Generalised Scheme of Preference (GSP), it grants a number of developing countries zero tariff or low tariff access to the EU Single Market – providing that they actively comply with a number of international human rights conventions, among which the ICCPR is prominent.

Compliance requires not simply saying the right thing, but also doing the right thing. For example, in February this year there was serious concern amongst business leaders in Pakistan that they could lose GSP status precisely because of Pakistan’s non-compliance with aspects of the International Covenant on Civil and Political Rights. It is therefore an extraordinary and shameless act of double hypocrisy for the EU to breach the ICCPR in such a blatant way.

There are actually other international human rights conventions which the EU has potentially breached in the draft Withdrawal Agreement as well. For example, Article 73 of the UN Charter which relates to countries which do not have ‘a full measure of self-government’ i.e. where a foreign power exercises a measure of political or economic control, requires that foreign power to recognise ‘the principle that the interests of the inhabitants of these territories are paramount’, while the UN convention relating to such territories specifically states that:

Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

However, returning to the International Covenant on Civil and Political Rights (ICCPR), it is clear that the draft Withdrawal Agreement is a very blatant breach of the ICCPR, which is legally enforceable in any country which has ratified it – as all EU members states have.

It is therefore possible for anyone to apply for judicial review of the Withdrawal Agreement. However, even if a request for judicial review were refused – because all 28 EU member states have ratified not just the ICCPR itself, but also the First Optional Protocol, a referral can be made directly to the UN Human Rights Committee by any

individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration.

As all EU member states are required to collectively agree the Withdrawal Agreement, they become liable when they do so.

I wonder how the people of Belgium or Germany – or for that matter Ireland – will feel about being investigated by the UN Human Rights Committee because of a serious breach of an international human rights convention by the European Union as it sought to retain control over an independent sovereign nation after it left the EU?