R.M.T. v. The UK: Expanding Article 11 of the ECHR Through Systemic Integration

On 8 April 2014, the ECtHR rendered a decision in the RMT v. the UK. The case represents an example of using systemic integration as a tool of judicial activism. In applying Article 31(3)(c) VCLT, the Court expanded rights under Article 11(1) ECHR through international instruments that were not binding on all parties to the Convention. This approach adds to the perplexity of the effects of the principle of systemic integration.

In the RMT case, the ECtHR responded to the novel question of whether secondary action—or the so-called sympathy strike that is performed by a trade union in support of the cause of another group of strikers involved in a dispute—comes within the scope of Article 11(1) of the Convention. The Court ruled in the affirmative by relying exclusively on international instruments that recognize secondary action as part of trade union freedom. Although the Court considered that a different outcome could have been reached if one read the wording of Article 11(1) on its own (para 76), it deemed that

the Convention cannot be interpreted in a vacuum but must be interpreted in harmony with… any relevant rules of international law applicable in relations between the parties, and in particular the rules concerning the international protection of human rights.

Referring to Article 31(3)(c) VCLT, the Court utilized the International Labour Organization (ILO) Convention No. 87 and the European Social Charter (ESC) to conclude that secondary action formed part of Article 11(1) of the Convention. The Court viewed that such reception of international law was in line with the Demir and Baykara judgment, which read in the relevant part as follows:

[t]he Court, in defining the meaning of terms and notions in the text of the Convention, can and must take into account elements of international law other than the Convention, the interpretation of such elements by competent organs, and the practice of European States reflecting their common values.

Against that background, the Court continued,

 [i]t would be inconsistent with this method for the Court to adopt in relation to Article 11 an interpretation of the scope of freedom of association of trade unions that is much narrower than that which prevails in international law.

The Court thus stretched the rights under Article 11(1) of the Convention by relying on international instruments that provide for its wider content.

Although in its conclusions the ECtHR found no violation of Article 11 (as the interference with secondary action was prescribed by UK law and it was justified in a democratic society), its engagement with Article 31(3)(c) and the law of treaties more generally, as well as the concurring opinion of Judge Wojtyczek, deserve closer scrutiny.

The contribution of the RMT case to the law of treaties

The ECtHR’s utilization of Article 31(3)(c) in the RMT case triggers criticism on at least two grounds. Firstly, the Court employed systemic integration not to clarify an ambiguous term of the ECHR but rather to expand the rights under Article 11(1). Secondly, the Court expanded the rights under Article 11(1) by relying on international instruments that were not binding on all parties to the Convention.

On the first point, the Court itself did not pronounce that the wording of Article 11(1) of the Convention was ambiguous. On the contrary, the Court noted that “from the language of the text taken on its own … it [was] possible to derive [the conclusion that Article 11(1) did not cover secondary action]”. Notwithstanding that recognized clarity of the wording of Article 11(1), the Court considered that, following the Demir and Baykara judgment, it was bound to apply Article 31(3)(c) in the search for topoi that granted higher protection of human rights in the context of Article 11(1).

In his concurring opinion, Judge Wojtyczek criticized the Court’s methodology of treaty interpretation. He reasoned that since the wording of Article 11(1) was lucid and did not suggest that it encompassed secondary action, Article 31(3)(c) was of no practical use. He argued that, in line with the VCLT, “the point of departure for the interpretation in international law is the wording of the provision to be interpreted”.

Furthermore, the ECtHR’s understanding that it should provide for a higher protection of human rights is at odds with the Court’s mandate and the character of the Convention it is supposed to guard. As pointed out by Judge Wojtyczek, having in mind, inter alia, Articles 19 and 53 of the ECHR,

the Court remains the guardian of a limited catalogue of rights as protected under the minimum standard set forth in the [ECHR] … and does not automatically align on the highest standard set up by other rules of international law binding the Parties to the Convention.

In this vein, Judge Wojtyczek suggested that Article 31(3)(c) could not be utilized to “[extend] the scope of treaty obligations irrespective of its wording” and of the ECHR as a whole.

On the second point, the Court expanded the rights under Article 11(1) of the ECHR by relying on the ILO Convention No. 87 and Article 6 of the ESC, to which not all members of the Council of Europe were party. Judge Wojtyczek considered that it was “illegitimate to transform treaty rules that bind only some members of the Council of Europe into an element of the [ECHR]”. He thus opined

Article 31(3)(c) … may not be understood as an entitlement to align the meaning of a treaty with the content of other rules of international law, especially if those rules are not binding on all the parties to the treaty to be interpreted.

This view is in line with decisions of other international bodies. In the EC Biotech Products case, the WTO panel held that only non-WTO agreements binding on all WTO members could be taken into account in the interpretation of a WTO agreement under Article 31(3)(c). In the Mox Plant case, the PCA Tribunal decided not to apply the instruments invoked by Ireland, namely, the Rio Declaration and the Aarhus Convention because those were not “rules applicable between the parties” but only “evolving international law”. Judge Wojtyczek suggested as follows:

invoking arguments such as a “continuous evolution in the norms and principles applied in international law” or a “strong international trend” usually discloses the fact that there are no strong arguments based on international law to support the chosen interpretation.

Against this background, it is contentious whether the ILO Convention No. 87 and Article 6 of the ESC had already gained a status of “hard law” with respect to all ECHR members and whether the reliance on those instruments could bypass the clear wording of Article 11(1).

While droits de l’hommistes may rightly applaud to the Court’s progressive interpretation of the ECHR, from the perspective of the law of treaties it remains debatable whether the outcome in the RMT case was a result of a proper application of Article 31(3)(c). On this issue many scholars, including Carlo Focarelli, have warned that “the principle of systemic integration, despite being presented as a tool of coherence and meaningfulness, may be used as a tool to reach desired outcomes that could not be reached otherwise”. There is scant ground for criticism concerning the use of Article 31(3)(c) as long as systemic integration is employed to clarify the meaning of ambiguous terms and to mitigate norm conflicts. However, the parameters of Article 31(3)(c) are clearly overstepped where an international tribunal selectively applies any kind of international instrument without regard to its binding or non-binding nature as a source of inspiration.

While systemic integration has been regarded as a possible remedy to the ailment of fragmentation, an unconstrained form of judicial activism may undermine the use of Article 31(3)(c) for that purpose. It may instead frustrate the attempts for coherence of international law, leading to more incoherence and legal uncertainty.