MAPPING THE UK’S RESPONSIBILITIES FOR HUMAN RIGHTS IN CROWN DEPENDENCIES AND OVERSEAS TERRITORIES (CDOTS) CONTENTS Executive Summary ................................................................................................................................................ 3 International Human Rights Law ........................................................................................................................ 3 UK powers and responsibilities .......................................................................................................................... 3 Effective Enjoyment of Rights ............................................................................................................................. 3 Recommendations .............................................................................................................................................. 3 Extension of International Human Rights Instruments .................................................................................. 3 Support for International Reporting ............................................................................................................... 3 creating Legal Certainty .................................................................................................................................. 4 Ensuring the same standards apply ................................................................................................................ 4 Background ......................................................................................................................................................... 5 Historical Framework and Departmental Responsibilities ................................................................................. 6 B - Application of International Human Rights Law in CDOTs ................................................................................ 7 European Convention on Human Rights and Protocols ..................................................................................... 8 UN Human Rights Conventions ........................................................................................................................ 14 C - UK Powers and responsibilities in CDOTs ........................................................................................................ 17 Role of Governor .............................................................................................................................................. 18 Capacity to legislate for CDOTs ......................................................................................................................... 20 Routes for legal challenge ................................................................................................................................ 22 D - Effective Enjoyment of Rights ......................................................................................................................... 24 WHAT STANDARDS APPLY .......................................................................................................................... 25 What are local requirements? .......................................................................................................................... 27 Specific Issues ................................................................................................................................................... 29 E - Conclusion ....................................................................................................................................................... 29 1 Recommendations ............................................................................................................................................ 30 Extension of International Human Rights Instruments ................................................................................ 30 Support for International Reporting ............................................................................................................. 30 creating Legal Certainty ................................................................................................................................ 30 Ensuring the same standards apply .............................................................................................................. 30 2 EXECUTIVE SUMMARY The relationships between the UK and its CDOTs have developed on an ad hoc basis over centuries which means that there is a lack of consistency in terms of human rights protections for their populations most of whom are British citizens. Although the UK Government has supported the development of human rights laws and policies in its CDOTs in recent years, including the drafting of constitutions that protect human rights, it has not sought to codify its own responsibility for human rights in these territories. INTERNATIONAL HUMAN RIGHTS LAW CDOTs are not able to sign international human rights treaties. The UK has taken a piecemeal approach to extending human rights instruments to them including the ECHR. In some cases, this has been in response to resistance from local governments in CDOTs while in others the reasons are less clear and lead to black holes in the protection of human rights. UK POWERS AND RESPONSIBILITIES The UK is responsible for the security and governance of most of its OTs and their people as non-self-governing territories under international law flowing from the UN Charter. Without clear avenues for legal challenge, the CDOTs may be unable to defend their own interests and protect their rights where UK interests conflict with theirs. EFFECTIVE ENJOYMENT OF RIGHTS The UK Government has made political commitments to ensure the same standards of human rights apply in CDOTs as do in the UK, but it is not clear how those commitments would be put into practice. This is not just a technical legal question but also requires an assessment of the resources needed to ensure effective enjoyment of rights in areas such as healthcare. RECOMMENDATIONS EXTENSION OF INTERNATIONAL HUMAN RIGHTS INSTRUMENTS The UK Government could extend all its international human rights commitments to all “territories under the territorial sovereignty of the United Kingdom.”1 SUPPORT FOR INTERNATIONAL REPORTING The UK Government should provide support to CDOTs, in particular independent human rights institutions, for engagement with periodic reporting and UN Special Procedures to 1 See discussion in Hendry and Dickson p. 282 3 ensure that voices from all British Territories are properly considered in terms of compliance with international human rights standards. CREATING LEGAL CERTAINTY There is a need to clarify and codify constitutional relationships and the routes to challenge acts and decisions made by the UK authorities that will have impacts on the rights of people in the CDOTs. ENSURING THE SAME STANDARDS APPLY There should be a wide-ranging assessment of the current standards of the enjoyment of human rights in CDOTs as they compare with those in the UK in order to understand what areas may need further development and support. Avenues to access funding to support improvement of human rights in CDOTs from the UK under the International Development Act need clarification. 4 - Introduction This paper is the product of a project funded by the Legal Education Foundation (LEF) to support the Island Rights Initiative in mapping the UK’s responsibilities for human rights in the British Crown Dependencies and Overseas Territories (CDOTS). The British Crown Dependencies (CDs) are all located in the British Isles and include the Isle of Man and the Channel Islands. The 14 British Overseas Territories (OTs), of which 11 are populated, are scattered around the world in Europe, the Caribbean, South Atlantic, Pacific and Indian Oceans. Their populations are British citizens and the UK is responsible for their international relations, including international human rights obligations. BACKGROUND Each CDOT is unique. Some, like St Helena or Pitcairn are heavily dependent on the UK for their survival because of their size, remoteness and limited resources. Others, like Bermuda, are economically self-sufficient. Some are remnants of the UK’s colonial past while others share a history of belonging to the Crown. This project aims to map the constitutional arrangements between the UK and its CDOTs in terms of international human rights obligations and responsibilities. It is part of the Island Rights Initiative’s ongoing policy engagement on these issues including Parliamentary evidence and policy advice. The relationships between the UK and its CDOTs have developed on an ad hoc basis over centuries which means that there is a lack of consistency in terms of human rights protections for their populations most of whom are British citizens. Although the UK Government has supported the development of human rights laws and policies in its CDOTs in recent years, including the drafting of constitutions that protect human rights, it has not sought to codify its own responsibility for human rights in these territories. Recent developments such as the exclusion of CDOT residents (with the exception of Gibraltar) from the Brexit referendum, domestic litigation around same-sex marriage in OTs and the assertion by the UK Parliament of direct legislative powers in OTs (though not in CDs) through the Sanctions and Anti-Money Laundering Act 2018, have brought this issue into sharp relief. This project aims