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Acknowledgements
This book started as an Oxford DPhil project. It therefore represents a period of growth from an enthusiastic student to a senior lecturer, with all the ups and downs that this entails. During my doctoral studies I was privileged to be surrounded by highly engaged and sometimes eccentric students from all over the world, some of whom are now my closest friends. I was fortunate to work in a beautiful environment with excellent access to resources. I learned to take the idiosyncrasies of the ancient institution in my stride. This lifechanging experience was made possible by generous funding from the Oxford Clarendon Fund, St Hilda’s College, the New Zealand Law Foundation, and the members of the University of Otago Law Faculty, who wrote reference after reference to help me pursue my goals.
I am grateful for the continued wisdom and guidance of my primary supervisor, Professor Denis Galligan and for the collegiality of the students and Fellows of the Centre for Socio-Legal Studies. I am also grateful for the supervision provided by Professor John Gardner and Associate Professor Liora Lazarus, each of whose astute challenges to my ideas led to many improvements. I am grateful to my doctoral examiners Professor Sandra Fredman and Professor Susan Marks, whose encouragement led me to investigate publishing my thesis. I spent the final year of my doctoral study at Hughes Hall, Cambridge, where I enjoyed another beautiful environment, and more idiosyncrasies. Sarah Squire, President of Hughes Hall, provided invaluable support and encouragement during that year and beyond.
I would never have guessed that it would take me ten years to complete what were supposed to be minor revisions. Two international moves, two changes in career, and two children intervened. Over the past four years, several University of Canterbury law students have provided invaluable research support, generously funded by the School of Law Research Committee. Professor Neil Boister provided helpful comments on a chapter, at a time when we barely knew each other. My colleagues Associate Professor Natalie Baird and Professor Annick Masselot have been my academic backbone—it is unlikely I would have completed this book without their encouragement and friendship. Four anonymous referees engaged by Oxford University Press provided thoughtful and insightful comments. The Academic Law editorial team at Oxford University Press have exhibited remarkable patience with my tardiness and have offered professional and constructive guidance throughout.
Acknowledgements
My children, Matilda and George, tolerate my never-ending work habits admirably. I hope that my example helps them to set their horizons widely. My husband, Michael, has provided the stability needed to sustain my burgeoning academic and professional commitments. My mother, Gaylia, has diligently proofread this piece of work in its entirety more than once and has offered unquestioning support in all my endeavours.
Thank you all.
Christchurch, New Zealand 4 September 2018
Introduction: The Right to Security of Person
The illusive right to security
The right to security of person can be found in a plethora of international and domestic human rights instruments and, yet, we know little about it. Attention has turned to this right due to an increased focus upon ‘security’ more generally as a response to an increase in terrorism. A raft of security legislation was passed throughout the world in the early twenty-first century. These measures have been criticized for their impact upon human rights, instigating discussions about the appropriate ‘balance’ to be struck between security and human rights. Within these debates, some have suggested that we must forgo some of our liberties in the name of security—Michael Ignatieff famously questioned ‘whether the era of human rights has come and gone’ and put forward proposals that we accept the ‘lesser evil’ that is limitation of rights.1 Others have suggested that security and human rights, which protect our liberties, must be reconciled2 or balanced.3 Yet, others have criticized the idea of ‘balancing’ security and liberty altogether,4 or put forward alternative conceptualizations of the relationship between security, citizenship, and human rights.5
1 M Ignatieff, ‘Is the Human Rights Era Ending?’ New York Times (New York, 5 February 2002). See also M Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh UP 2004).
2 See R Ashby Wilson, ‘Human Rights in the “War on Terror” ’ in Human Rights in the ‘War on Terror’ (CUP 2005) 2; L Lazarus and B Goold, ‘Introduction: Security and Human Rights: The Search for a Language of Reconciliation’ in Security and Human Rights (Hart 2007) 2and the works cited there.
3 M Atkin, Balancing Liberty and Security: An Ethical Study of US Foreign Intelligence Surveillance (Rowman & Littlefield 2013); G Treverton, Balancing Security and Liberty in the War on Terror (Maxwell School of Syracuse University 2004).
4 D Luban, ‘Eight Fallacies about Liberty and Security’ in R Ashby Wilson, Human Rights in the ‘War on Terror’ (n 2); J Waldron, ‘Security and Liberty: The Image of Balance’ in Torture, Terror and Trade-Offs: Philosophy for the White House (OUP 2010); R Dworkin, ‘Terror and the Attack on Civil Liberties’ (6 November 2003) New York Rev of Books 37; R Dworkin, ‘The Threat to Patriotism’ (28 February 2002) New York Rev of Books 44.
5 D McGee, Security, Citizenship and Human Rights: Shared Values in Uncertain Times (Palgrave MacMillan 2010).
Another dimension to the debate about security and rights is the idea of a right to security. If there is a right to security, then instead of balancing a fundamental human right against a policy concern, the balance is between two human rights. This may make it easier to justify security measures which infringe human rights. The idea of a right to security has therefore caused concern amongst human rights advocates, who fear that by requisitioning the language of rights in order to further security, other human rights may become ‘securitized’ or their foundations degraded.6
Talk of the right to security often refers to the collective right to security.7 There is no collective right to security in law. Rather, collective security finds its expression as a reason to limit other rights,8 or to derogate from human rights instruments.9 Human rights law does recognize an individual legal right to security of person, which can at times be in conflict with the needs of collective security.10 By a ‘legal right’, I mean a right that is recognized and enforceable through human rights law, either in the national or international context.
The individual legal right to security of person is well established. It can be traced to the French Declaration of the Rights of Man and of the Citizen, which affirmed four ‘natural and imprescriptible’ rights: liberty, property, security, and resistance to oppression.11 The individual right to security is found in three international human rights instruments, the Universal Declaration on Human Rights (‘UDHR’),12 the International Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’),13 and the International Covenant on Civil and Political Rights (‘ICCPR’).14 It is
6 L Lazarus, ‘Mapping the Right to Security’ in L Lazarus and B Goold (eds), Security and Human Rights (Hart 2007) 327–8.
7 I Turner, ‘A Positive, Communitarian Right to Security in the Age of Super-Terrorism’ (2017) 13 Democracy and Security 46.
8 See, eg, International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), arts 12–13, 18–19, 21–22; International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 999 UNTS 3 (ICESCR), art 8; Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), arts 8–11.
9 See, eg, ICCPR, art 4; ECHR, art 15.
10 See Al-Jedda v The United Kingdom (2011) 53 EHRR 23, in which a claim for breach of the right to liberty and security of person in art 5 of the ECHR was successful. The applicant had been in long-term preventative detention due to his terrorist activities.
11 French Declaration of the Rights of Man and of the Citizen (26 August 1789), art 2.
12 Universal Declaration of Human Rights (adopted 10 December 1948, UNGA Res 217 A(III)) (UDHR), art 9.
13 International Convention on the Elimination of All Forms of Racial Discrimination (adopted 7 March 1966, entered into force 4 January 1969) 660 UNTS 195, art 5.
14 ICCPR, art 9.
3 also found in five regional human rights instruments.15 At the national level, the right to security of person is recognized in a number of bills of rights, including those of Jamaica,16 Canada,17 Hungary,18 South Africa,19 and the United States.20
Interestingly, the right to security of person is rarely found on its own. More often it forms part of the right to ‘life, liberty and security of person’,21 or the right to ‘liberty and security of person’.22 There are two exceptions to this: CERD and the South African Bill of Rights each specify the right to security of person independently from the right to liberty of person.23 The South African Bill of Rights is also unusual in defining the right to security of person in the text. In most instances it is simply asserted, with interpretation and definition left to the courts.
The right to security of person is also widely recognized in rights theory. For example, Henry Shue suggests that it is one of three ‘basic rights’.24 The right to security of person is mentioned as an example by Joseph Raz when discussing rights and duties more generally.25 Even John Rawls’ ‘thin theory of rights’ includes the right to security.26 The reason theorists often use the right to security of person as an example is likely to be that its existence is uncontroversial. Notably, like legislators, rights theorists tend not to define the right to security of person. This may suggest that they too assume its meaning to be uncontroversial.
In fact, despite the prevalence of the right to security of person, over the past decade or so questions have arisen as to what it means in law, what
15 ECHR, art 5; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (African Charter), art 6; American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (American Convention), art 7; Charter of Fundamental Rights of the European Union, 2000/C 364/1 (EU Charter), art 6; League of Arab States, Revised Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008), art 14.
16 The Jamaica (Constitution) Order in Council 1962, s 13(a).
17 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), c11, Part 1 (Canadian Charter of Rights and Freedoms) (Canadian Charter), s 7.
18 Constitution of India (as amended) 1949, art 55(1).
19 Constitution of the Republic of South Africa, 1996, ch 2 (SA Bill of Rights), s 12.
20 Constitution of the United States (as amended), Amendment IV.
21 UDHR, art 3; ICCPR, art 9.
22 ECHR, art 5; EU Charter, art 6; Canadian Charter, s 7; African Charter, art 6; American Convention, art 7; Revised Arab Charter on Human Rights, art 14.
23 SA Bill of Rights, s 12; ICESCR, art 5(b).
24 H Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (2nd edn, Princeton UP 1996).
25 J Raz, The Morality of Freedom (Clarendon 1986) 170–1.
26 J Rawls, ‘The Law of Peoples’ in S Shute and S Hurley (eds), On Human Rights: The Oxford Amnesty Lectures 1993 (Basic Books 1993) 68.
Introduction: The Right to Security of Person
distinguishes it from other rights, and how it should be understood.27 Curiously, despite the right’s long history, these questions have not been adequately addressed, with scholars proposing different understandings of what the right to security of person means. For example, Sandra Fredman enunciates the ‘positive right to security’ which acts as a ‘platform for the exercise of real freedom and agency’,28 and extends to ‘the duty to provide for basic needs of individuals’.29 By contrast, Liora Lazarus argues for ‘the narrowest possible conception of the notion of security’ and warns against a right which becomes ‘the overarching legitimating principle and rhetorical tool upon which we ground arguments for all other desirable human goods’.30 Meanwhile, Ian Turner advocates for the recognition of a communitarian right to security.31 The difference between these perspectives reveals the need for an inquiry about the true meaning of the right to security of person. That is the issue addressed by this book.
Inquiring into the right to security
The obvious starting point for the inquiry is the international jurisprudence on the right to security of person. However, the right to security of person turns out to mean something quite different in different jurisdictions. For example, the approach taken under the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’) effectively amounts to procedural protections against arbitrary detention.32 By contrast, the approach taken under the Canadian Charter of Rights and Freedoms (‘Canadian Charter’) focuses upon the idea of ‘physical and psychological integrity’.33 While some of the differences may be accounted for by varying jurisdictional attitudes to the role of courts in protecting rights in general, the inconsistency may also stem from a combination of the undefined nature of this right and its lack of theoretical underpinning. This book’s analysis of the meaning of the right to security of person therefore extends beyond the law to theory. In order to construct a coherent meaning for the right to security of person, the book probes deeper into the terms which establish the right: ‘security’ and ‘the person’. It is argued that security is by its nature both a negative and a
27 Lazarus (n 6) 326.
28 S Fredman, ‘The Positive Right to Security’ in Lazarus and Goold, Security and Human Rights (n 2) 307.
29 ibid, 308.
30 Lazarus (n 6) 326.
31 Turner (n 7).
32 East African Asians (British Protected Persons) v United Kingdom (1981) 3 EHRR 76 (Commission Decision).
33 Rodriguez v British Columbia (AG) [1993] 3 SCR 519 (CanLII).
positive concept and that therefore the right to security of person should ground both negative and positive duties. It is argued further that security is a ‘relational’ and not a ‘substantive’ concept. This means that security provides a structure for understanding the relation between other things but that it does not itself tell us which interests are protected by the right to security of person. The ‘substance’ of the right comes from an analysis of personhood. The book draws upon the notion of personhood put forward as part of Martha Nussbaum and Amartya Sen’s ‘capabilities approach’, which is used for measuring human well-being.34 The capabilities approach suggests that the correct focus for policy-making is upon what each individual is able to do and to be in relation to certain universally valuable ‘functionings’. Nussbaum provides a list of core capabilities, a minimum of which should be guaranteed to all on the basis of human dignity.35 The capabilities approach can be applied to construct a substantive right to security of person by treating the core capabilities as the interests to be protected by the right.36
This new and original theoretical development of security of person is then applied to the legal context in order to illustrate the variety of interests the right to security of person covers and the types of duties it imposes. For instance, it extends to things like food, minimum welfare, and education, as well as protection against violence and the opportunity to exercise practical reason. The right to security of person imposes negative and positive duties on states to protect, promote, and fulfil a wide range of important personal interests.
The analysis demonstrates that the right to security of person is very broad. This helps explain why, when it forms the basis of a legal right, different jurisdictions are able to legitimately give such different meanings to the right. Each jurisdiction is protecting some aspects of personhood, but not all: selection and prioritization has taken place in order to create a legal right that has clear boundaries. It is argued that those boundaries are pragmatic and not principled. Existing legal rights to security of person do not protect the full scope of the right. However, it is not argued that existing legal rights to security of person should be given meanings in line with the true breadth of the right on a theoretical level.
Instead, an alternative and preferable way of understanding the relationship between security of person and human rights is put forward, drawing once again upon the capabilities approach which this time plays a different
34 M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Belknap Press 2006); A Sen, Development as Freedom (OUP 1999).
35 Nussbaum (n 34) 76–8.
36 This is a variation on the approach taken by Fredman (n 28).
Introduction: The Right to Security of Person
role—to determine what it takes to secure a right. It is suggested that rather than attempting to confine a broad concept into a narrow form, human rights law as a whole should be seen as a mechanism to secure the person. This new approach is called ‘rights as security’.
Throughout this book, examples are drawn from three jurisdictions: the ECHR, the Canadian Charter, and the South African Bill of Rights. Whilst it is recognized that there may be very good historical and contextual reasons why legal rights are defined in particular ways, the book is not concerned with why each particular jurisdiction took the approach it did. That question would require a more historical and contextual inquiry, sensitive to the role of the courts and the attitude towards rights in the particular jurisdiction. Neither is the book concerned with the differences in legal context between the three jurisdictions or whether one jurisdiction can learn from another in its interpretation of the right. The book analyses the problem from the other direction—focusing on the nature of the universal right, which should ground its legal expressions. It is assumed that legal rights should share the core features of the universal human rights on which they are based.
The three jurisdictions were chosen for two reasons. First, these jurisdictions have created sufficient jurisprudence to provide a detailed understanding of their approach to the right to security of person. By contrast, in many other jurisdictions, little is said on the right to security of person, albeit that it appears in the text of the relevant instrument.37 Secondly, these jurisdictions exhibit the need for theoretical analysis particularly well because they take very different approaches to the right. Case law is used in three ways: to describe the approaches taken in each jurisdiction; to show why theoretical analysis may help untangle the meaning of the right to security of person; and to exemplify the theoretical points developed.
Outline of chapters
Chapter 1 investigates the approach taken to the right to security of person in law. It focuses on the ECHR, the Canadian Charter, and the South African Bill of Rights. It is revealed that the right to security of person is portrayed
37 For instance, to my knowledge the United Nations Human Rights Committee has only considered the right to security of person (as opposed to the right to liberty of person) on one occasion: William Eduardo Delgado Páez v Colombia CCPR/C/39/D/195/1985 23 August 1990 (HRC). The Office of the United Nations High Commission on Human Rights (OHCHR) and the Joint United Nations Programme on HIV/AIDS (UNAIDS) have interpreted art 9 to extend to compulsory AIDS testing: OHCHR and UNAIDS, International Guidelines on HIV/AIDS and Human Rights: 2006 Consolidated Version (Geneva 2006) 95–6.
Outline of chapters 7
inconsistently between the jurisdictions. The legal analysis shows a lack of agreement about the meaning of the right to security of person. While it gives plenty of food for thought, descriptive legal analysis is not able to provide a common understanding of the right. It is therefore necessary to take a more theoretical approach.
The book then turns to conceptual analysis. This is a technique of analytical philosophy in which a concept or its constituent parts are broken down, in order to gain a better understanding of the philosophical issues which apply to the concept. As Thomas Nagel describes, conceptual analysis is concerned ‘with the concepts and methods that enable us to describe and think about what we can observe’.38 The conceptual method has been employed by analytical legal philosophers, most famously by HLA Hart in analysing the concept of law.39
Chapter 2 considers whether the meaning of the right to security of person can be understood through a conceptual analysis of security. It discusses literature, drawn primarily from the discipline of international relations,40 but also from criminology,41 which attempts to define the concept of security. It is argued that no previous attempt to define security is sufficiently contextneutral that it can be applied to the right to security of person.
Chapter 3 puts forward a new analysis of the concept of security, relying on the strengths and improving on the weaknesses of the existing accounts. It is argued that security describes a fourfold relation between other concepts and that in order to understand its meaning in any particular context, one must identify four factors: security for whom (an agent or patient), security of what (an interest or value), security from what (a risk or threat), and security by whom (a protector). As a relational concept, security relies upon both political philosophy and political discourse to determine each of these variables in any particular context. Importantly, this means that security need not be restricted to preserving that which we have but that it can extend to putting people in a ‘secure’ position for the future.
Chapter 3 also argues that security is both intrinsically negative and intrinsically positive: one cannot be secure in the absence of protection even if one faces no threat. It follows that the legal right to security of person should incorporate both negative and positive duties. It is concluded that whilst the relational analysis of security establishes the type of duties required by the
38 T Nagel, ‘The Central Questions (Review of “A Life of HLA Hart: The Nightmare and the Noble Dream” by Nicola Lacey)’ in London Rev of Books (London, 3 February 2005) 12, 13.
39 H Hart, The Concept of Law (Clarendon 1979).
40 K Booth, Theory of World Security (CUP 2007); B Buzan, O Waever, and J de Wilde, Security: A New Framework for Analysis (Lynne Rienner 1998).
41 I Loader and N Walker, Civilizing Security (CUP 2007).
Introduction: The Right to Security of Person
right, a theory of personhood is needed in order to identify the interests on which the right to security of person is based.
Chapter 4 focuses on ‘the person’. Unlike security, there is a wide analytical literature on persons and personhood. Thus, rather than conduct a new conceptual analysis, an existing theory, the capabilities approach,42 is applied. It is argued that the capabilities approach, which is based on an Aristotelian view of personhood, could be used to identify the most important interests of the person. In this way, the capabilities approach can substantiate the idea of ‘security of person’: in the context of a right to security of person, Nussbaum’s list of ‘capabilities’ can be used to identify the interests to be protected.43
Chapters 5 and 6 apply the theoretical analysis to the legal context. Chapter 5 provides examples of the variety of interests which should be protected by the right to security of person. Illustrations are drawn primarily from rights discourse in Europe, Canada, and South Africa. The right to security of person should protect a wide range of interests, cutting across the distinction between civil and political rights and socio-economic rights. For example, it should cover both the right to political participation and the right to food. However, it is also noted that, on this interpretation, the right to security of person overlaps with, and subsumes, a number of other legal rights.
Chapter 6 discusses the types of duties which are imposed by the right to security of person. Drawing on the conceptual analysis of security as well as human rights theory,44 it is argued that the right to security of person correlates to duties of restraint, protection, and fulfilment. The chapter then returns to the three jurisdictions which are analysed for their ability to reflect both the negative and positive nature of security of person. In particular, Canada is criticized for its failure to recognize positive duties. Both the ECHR and South Africa recognize positive duties, which stem both from their general approaches to rights and from their interpretation of the right to security of person.
Chapter 7 examines the key implications of recognizing the full breadth of the right to security of person. This breadth is not solely a feature of the capabilities approach—any theory of personhood would be equally allencompassing. However, once it is recognized that the right to security of person is necessarily so broad, it is clear that any legal recognition of the right cannot take on its full meaning. It would be inappropriate and counterproductive to protect such a wide range of interests within one legal right, particularly given that many of the interests are already protected in other ways
44 S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008); Shue (n 24).
Outline of chapters 9
through human rights law. Rather than expanding the meaning of existing legal rights to security of person, it may be preferable to focus on creating further specific rights to protect any important personal interests that are not already protected by human rights law. In relation to important personal interests that are already included but that are not afforded the full positive protection that they deserve, human rights law should be strengthened. This is particularly necessary in the area of socio-economic rights.
Finally, Chapter 7 proposes a new framework with which to view the relationship between security of person and human rights: ‘rights as security’. It is proposed that human rights law as a whole can be seen as a way to secure the person, with individual rights protecting individual personal interests. The ‘rights-as-security’ approach enables security of person to take on its full meaning in the context of human rights law. The capabilities approach could still serve as a tool to identify what it takes to fulfil a right, thus defining what it means to secure the person.
The Legal Right to Security of Person
Introduction
There is no agreed meaning ascribed to the legal right to security of person, even though it is an internationally recognized human right and a term found in legislation and political dialogue around the world. Most jurisdictions have left the courts to interpret the meaning of the right to security of person. Security takes on different meanings according to context and accordingly, courts in different jurisdictions have taken different approaches to determining which interests should be protected by the right to security of person. This can be demonstrated by analysing the meaning that courts have given to the right as it appears in the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),1 the Canadian Charter of Rights and Freedoms (Canadian Charter),2 and the South African Bill of Rights.3 As noted in the introduction, these jurisdictions are explored because they have a developed body of jurisprudence about the right to security of person.
Under the ECHR, the right to security of person amounts to procedural safeguards against arbitrary detention. In developing the case law, the European Court of Human Rights (the ‘Strasbourg Court’) has considered whether the right has any broader relevance but has decided on a limited definition that restricts ‘security of person’ to situations in which somebody’s liberty is restricted (eg when somebody is arrested, detained, or at risk of imprisonment). In comparison, the approach taken by the Canadian Supreme Court in its interpretation of the Canadian Charter is broader. In that context, the right to security extends to bodily and psychological integrity and in some instances, autonomy. Finally, in South Africa, the only jurisdiction of
1 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).
2 The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), c11, Part 1 (Canadian Charter of Rights and Freedoms) (Canadian Charter).
3 Constitution of the Republic of South Africa, 1996, ch 2 (SA Bill of Rights).
the three to provide a legislative definition of the right to security of person, the cases focus primarily upon violence to the person. Rather than providing a structured understanding of the right to security, the analysis in Chapter 1 demonstrates a lack of cohesiveness internationally, particularly in relation to the relationship between liberty of person and security of person. As Lazarus has noted, there is ‘a curious schizophrenia between a view of security as indistinct from and submerged within liberty, and a clearly autonomous notion of security as inclusive of liberty and many other rights’.4
It is not normally seen as problematic that courts in different jurisdictions take different approaches to resolving similar legal problems. International, regional, and domestic rights instruments use different wording and have different internal structures. Varying local legal, social, and political norms result in great diversity in legal systems and legal solutions worldwide. International and regional courts work within a constrained political context. Differences between jurisdictions can be therefore explained on the basis of textual and contextual differences. However, arguably human rights protection in different jurisdictions should be based on an element of commonality because legal rights are built on a common understanding of the human rights on which they are based. By their very nature, human rights are universally applicable5 and we should therefore expect that in interpreting human rights law in domestic contexts, relevant international norms will be considered. Indeed, in some instances, judges are explicitly directed to do so by the legislature.6 That does not mean that human rights law is necessarily a coherent system as a whole, but that in the various contexts in which any one human right is protected any local variation should be based on the common universal core. In terms of the right to security of person, this is not the case.
The right to security in the European Convention— arbitrary interference with liberty
The Strasbourg Court and the earlier European Commission of Human Rights (‘the Commission’) have limited the context in which the right to
4 L Lazarus, ‘Mapping the Right to Security’ in L Lazarus and B Goold (eds), Security and Human Rights (Hart 2007) 333.
5 See the reference to the ‘equal and inalienable rights of all members of the human family’ in the Preamble to the Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). See further Chapter 7, 154.
6 See, eg, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(2); SA Bill of Rights s 39(1); Human Rights Act 1998 (UK) s 2.
The Legal Right to Security of Person
security applies to deprivations of physical liberty. This is despite the fact that the parallel right in the Universal Declaration on Human Rights (UDHR),7 which was drafted during a similar period and which adopts similar phrasing, was clearly intended to include matters such as personal integrity,8 and that section 7 of the Canadian Charter has also been given a broader meaning.9
Article 5(1) of the ECHR reads:
Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law . . .
Article 5(2)–5(5) provides procedural protections for persons arrested or detained.
Under the ECHR, the right has no relevance outside detention scenarios (including imprisonment and compulsory detention for mental health treatment), no application that is separate from the right to liberty and no independent content of its own. However, states are required to take positive measures to protect a person’s liberty under Article 5(2)–5(5). It is argued here that these positive measures amount to ‘security’ under the ECHR. Unsurprisingly, given that security has not been given an independent substantive meaning in ECHR jurisprudence, there is very little academic commentary on the right to security under the ECHR.10
It is interesting to see how the Commission first justified its limitation of the meaning of the right to security, which in other jurisdictions is seen as an independent right.11 The Commission stated explicitly that this interpretation by no means makes the right to security meaningless.12 Rather, the right to security is important to secure freedom from arbitrary detention by requiring procedural safeguards such as being informed of the cause of detention,13 being brought promptly before a judge,14 a right to challenge the detention,15 and a right to compensation if the right is breached.16 The doctrine
7 UDHR, art 3.
8 J Morsink, ‘World War II as a Catalyst’ in The Universal Declaration of Human Rights: Origins, Drafting, and Intent (U of Philadelphia Press 1999) 40.
9 Rodriguez v British Columbia (AG) [1993] 3 SCR 519 (CanLII).
10 See Lazarus (n 4) and R Powell, ‘The Right to Security of Person in European Court of Human Rights Jurisprudence’ (2007) 6 EHRLR 649.
11 See the discussions of Canada and South Africa below.
12 East African Asians (British Protected Persons) v United Kingdom (1981) 3 EHRR 76 (Commission Decision) [222].
13 ECHR, art 5(2). 14 ECHR, art 5(3).
15 ECHR, art 5(4); see MH v United Kingdom (2014) 58 EHRR 35.
16 ECHR, art 5(5).
The right to security in the European Convention 13 of positive obligations was in its early stages at that point in time.17 However, with the benefit of hindsight it can be seen that the same procedural safeguards could stem from the right to liberty. It is difficult to see what ‘security’ adds to Article 5.
The cases about the right to security in ECHR jurisprudence can be divided into four sets. Each new set reflects a subtle change in interpretation of the right over time. The first set, in the 1970s, made it clear that the right to security of person had no meaning outside the context of deprivations of liberty. In the second set, in the late 1990s, the language changed slightly to recognize the potential for security to have an independent meaning from liberty. The third set, in the early twenty-first century, signalled movement towards recognizing security as a separate right from liberty, although it did not actually take this step. The fourth set, during a similar time period, took a different approach by examining the issues under other ECHR provisions, despite the claims for breach of right to security of person under Article 5. This same period saw an increase in usage of the rhetoric of security by the Strasbourg Court. The overall picture is of increasing claims related to security of person and increasing use of security language by the court, but a failure to move from the position outlined in the first right to security challenge. That is, security of person, within the meaning of Article 5, is restricted to the context of liberty deprivation.
It is important not to overestimate these variations, as the Strasbourg Court steadfastly limits security to procedural protections against arbitrary detention. Nevertheless, the subtle changes are illuminating because Strasbourg judgments tend to follow standard forms such that the reasoning in one judgment may be repeated verbatim in another.18 It is therefore likely that changes in the standard wording are deliberate. If these subtle changes are not deliberate, then the rhetoric of security may be influencing the Strasbourg Court to find new ways to protect a broader sense of security of person within the framework of the ECHR.
The first set of cases firmly establishes that the right to security in Article 5 is only relevant in the context of deprivations of liberty. In East African Asians v United Kingdom, 19 United Kingdom passport holders of Asian origin who
17 The doctrine was first recognized in the Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium” (No 2) (1968) 1 EHRR 252. See further M Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Hart 2004); D Xenos, The Positive Obligations of the State under the European Convention of Human Rights (Routledge 2012).
18 This is one way the Strasbourg Court achieves consistency. It may also be the result of the procedures of the Court or be due to the time spent negotiating wording between judges of different jurisdictions.
19 East African Asians (n 12).
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had been living in East African countries were denied permission to immigrate to the United Kingdom. The claimants argued that this breached their right to security in Article 5. In rejecting the claim, the Commission stated that:20
the protection of ‘security’ is in this context concerned with arbitrary interference, by a public authority, with an individual’s personal ‘liberty’. . . . any decision taken within the sphere of Article 5 must, in order to safeguard the individual’s right to ‘security of person’ conform to the procedural as well as the substantive requirements laid down by an already existing law.
The Commission clarified that the right to security has no independent content from the right to liberty—in effect the right to liberty and the right to security are two aspects of the same right, liberty being the substantive aspect and security the means of protection. According to the Commission, this interpretation is supported by both the legislative context and the right’s historical development.21 This sort of reference to original intent is unusual in Strasbourg judgments,22 the norm being to focus on the status of the ECHR as a living document that responds to the changing needs of the day.23
The East African Asians case set the scene for the future development of Article 5. In X v United Kingdom, 24 the claimant had taken part in a protest against South African apartheid at a Springboks rugby match in the United Kingdom and had been photographed by a police photographer without her consent. The photographs were retained by the police and the applicant was informed that if she ‘caused any further trouble’ at Springboks matches she would be charged with an offence. The claimant argued that the retention of the photos by the police constituted a breach of her right to security as the police could have used them against her in the future. The Commission stated that ‘ . . “security of person” means physical security, that is freedom from arrest and detention’.25 Thus in the case at hand, the photographs retained by the police could not be said to affect the claimant’s security of person.
20 ibid [222].
21 ‘This interpretation is confirmed both by the text of Article 5 and by the preparatory work of the Convention, which show that the protection against arbitrary arrest and detention was one of the principal considerations of the drafters of this treaty’, East African Asians (n 12) [222]. A similar argument was not persuasive in the United Nations Human Rights Committee decision of William Eduardo Delgado Páez v Colombia CCPR/C/39/D/195/1985 23 August 1990 (HRC) [5.5].
22 Golder v United Kingdom (1979–1980) 1 EHRR 524 [36]; Lawless v Ireland (2) (1979–1980) 1 EHRR 15 [14].
23 Tyrer v United Kingdom (1979–1980) 2 EHRR 1 [31]; Loizidou v Turkey (1995) 20 EHRR 99 ECtHR [71]; see also the discussion in C Ovey and R White, Jacobs and White: The European Convention on Human Rights (4th edn, OUP 2006) 40–1.
24 X v United Kingdom (1973) 45 CD 90. 25 ibid [2]
Similarly, in A v Federal Republic of Germany, 26 the applicants were unable to claim for property confiscated from them and their parents under the Nazi regime through the established compensation scheme for mere procedural reasons. The applicants argued that this breached their right to security in Article 5 but the Commission held that as the claim was not related to arbitrary detention, Article 5 did not apply.27
In Menteş v Turkey28 the claimants were forced to evacuate their homes due to clashes between the state and a Kurdish terrorist organization and their claimants’ houses were demolished by security forces in the fighting. They argued that this constituted a breach of the right to security. The Strasbourg Court held that the notion of security had not been given an independent interpretation and that ‘[t]he insecurity of their personal circumstances arising from the loss of their homes did not fall within the notion of “security of person” for the purpose of Article 5 § 1 of the Convention’.29 A violation of Article 8 was found. There seems little doubt, as this first set of cases establishes, that Article 5 is not relevant outside of detention scenarios.
The second identifiable set of cases illustrates movement on the potential for ‘security’ to have an independent meaning from liberty. The second set of cases all relate to ‘disappearances’, starting with Kurt v Turkey in 1998.30 In Kurt, the claimant’s son had been arrested by state authorities and had not been seen since. Requests for information and investigation as to his whereabouts by the family were unsuccessful and the state denied all knowledge. The claimant suggested that this breached her son’s right to security of person.31 In this case the Strasbourg Court used a new ‘standard phrasing’, appropriate for cases of disappearance:32
any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness . . Having assumed control over that individual it is incumbent on the authorities to account for his or her whereabouts. . . . Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.
26 A v Federal Republic of Germany (1976) 7 DR 8. 27 ibid [28].
28 Menteş v Turkey (1997) 26 EHRR 595. See also Selcuk and Asker v Turkey (1998) 26 EHRR 477.
29 Menteş (n 28) [79]. 30 Kurt v Turkey (1999) 27 EHRR 373.
31 Applicants before the ECHR must be a ‘victim of a violation’: art 25(1). The Commission will also accept complaints by representatives of clearly definable people. In Kurt (n 30), the applicant claimed on behalf of herself and her son.
32 ibid [122]–[123].
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By stating that ‘what is at stake is both the protection of the physical liberty of individuals as well as their personal security’,33 the Strasbourg Court recognized that security could have meaning independently from liberty, which was a new move, and one which has been reiterated in other contexts, such as access to judicial scrutiny of mental health detention.34 By contrast, in the earlier cases security was seen as an aspect of liberty. However, despite the apparent recognition of separate rights to security and liberty, personal security was still seen to be only relevant in situations of detention. Kurt has been widely cited and continues to be one of the most important authorities on cases of disappearance.35
The idea of the purpose of Article 5 being to safeguard individuals from arbitrariness has been picked up recently in the context of ‘fair play’ by the state. In Nikolaishvili v Georgia, the applicant was sought as a witness in relation to a criminal case and when he presented himself, he was arrested in relation to an unrelated matter. He argued that this engaged Article 5 because this was an abuse of state power.36 The Strasbourg Court emphasized that Article 5 encompasses a single right and that security guarantees against the arbitrary interference by public authorities with personal liberty.37 The reference to security serves to remind authorities of the rule of law safeguards required when liberty is at stake.38 In that case, the hidden intention to arrest undermined the principle of legal certainty which potentially breached the right to security.39 The Strasbourg Court noted the potential for lack of transparency to lead to feelings of personal insecurity in persons summoned as witnesses.40
The third set of cases, in the early twenty-first century and in the context of extradition and expulsion, demonstrates movement towards recognizing security as a separate right. The move arises with the case of Öcalan v Turkey, 41 in which a Turkish citizen was arrested by Turkish authorities in Kenya, in collusion with Kenyan authorities, outside the formal extradition procedure.
33 ibid [123]; see also El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25; Huseynov v Azerbaijan App no 59135/09 (ECtHR, 7 May 2015); Nagiyev v Azerbaijan App no 16499/09 (ECtHR, 23 April 2015).
34 Varbanov v Bulgaria App no 31365/96 (ECtHR, 5 October 2000); MH v UK (n 15).
35 See also Bilgin v Turkey (2002) 35 EHRR 39; Cyprus v Turkey (2002) 35 EHRR 30; Ípek v Turkey App no 25760/94 (ECtHR, 17 February 2004); Ibragimov v Russia App no 34561/03 (ECtHR, 29 May 2008); Sangariyeva v Russia App no 1839/04 (ECtHR, 29 May 2008); Shakhgiriyeva v Russia App no 27251/03 (ECtHR, 8 January 2009); El-Masri (n 33).
36 Nikolaishvili v Georgia App no 37048/04 (ECtHR, 13 January 2009) [49].
37 ibid [52].
38 ibid [52]. 39 ibid [53].
40 ibid [56]. See also Uğur v Turkey App no 37308/05 (ECtHR, 13 January 2015), in which two minors were taken to a police station as witnesses and then treated as suspects.
41 Öcalan v Turkey (2005) 41 EHRR 45, affirming Öcalan v Turkey (2003) 37 EHRR 10.
The right to security in the European Convention 17 Öcalan claimed that the arrest breached his right to security because the procedural safeguards in Article 5(2)–(5) were not met. At first, this looks like an archetypal Article 5 liberty case. The emphasis remained on procedural protection and the context remained that of arbitrary detention. However, the Strasbourg Court stated that ‘what is at stake here is not only the “right to liberty” but also the “right to security of person” ’,42 and that ‘an arrest made by the authorities of one state on the territory of another state, without the consent of the latter, affects the person’s individual right to security under art 5(1)’.43 The importance of these statements is that for the first time the possibility of breaching the right to security as distinct from the right to liberty was acknowledged.44 This is significant because it recognizes the right to security as related to but independent from the right to liberty. The model of Öcalan (identifying the possibility of a breach founded upon the right to security) was followed in several other cases.45 However, the Strasbourg Court has not yet upheld a claim for breach of the right to security as distinct from a breach of the right to liberty.
In the fourth set of cases, during the same period as the third set, arguments that Article 5 should be broadened to include scenarios outside of detention were rejected. However, the same arguments successfully established breaches of Articles 3 or 8. Article 3 reads ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’ Article 8(1) reads ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’ Article 8(2) details the circumstances in which a state may limit the rights in Article 8(1) without breaching the ECHR.
In Pretty v United Kingdom, 46 a woman who was suffering from a terminal and degenerative illness requested that the United Kingdom guarantee not to prosecute her husband if he helped her to terminate her own life. She made a number of claims, including a breach of the right to security in Article 5, relying on the Canadian precedent of Rodriguez v British Columbia, in which a similar situation was said to infringe the right to security of the person under the Canadian Charter.47 Pretty was litigated before the House of Lords,
42 Öcalan 2005 (n 41) [83]; See also Salayev v Azerbaijan App no 40900/05 (ECtHR, 9 November 2010) [35].
43 Öcalan 2005 (n 41) [85], emphasis added.
44 On the facts, there was no breach of ECHR, art 5 because the detention was in accordance with a procedure proscribed by law: Öcalan 2005 (n 41) [99].
45 Tekdağ v Turkey App no 27699/95 (ECtHR, 15 January 2004); Tepe v Turkey (2004) 39 EHRR 29; Türkoğlu v Turkey App no 34506/97 (ECtHR, 17 March 2005); Kaboulov v Ukraine (2010) 50 EHRR 39 [130].
46 Pretty v United Kingdom (2002) 35 EHRR 1.
47 Rodriguez (n 9). However, for reasons of public policy it was decided that the limitation was not a breach of the principles of fundamental justice and therefore did not breach the right. For a
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where the claim failed before it was taken to Strasbourg. The Strasbourg Court quoted a long section the Lords’ judgment,48 which rejected the argument that Rodriguez reasoning could be applied to Article 5.49 The Strasbourg Court did not contradict the Lords’ statement that Article 5 was limited to the context of arbitrary detention and did not examine the issue under Article 5.
The Strasbourg Court also considered Pretty’s claims under Articles 3 and 8 of the ECHR. Most significantly, it recognized the breadth of the idea of ‘private life’ in Article 8 and the importance of the principle of personal autonomy, which underlies Article 8. This includes the physical and psychological integrity of the person and aspects of personal and social identity, interests which are protected under the right to security of the person in section 7 of the Canadian Charter.50 The Strasbourg court remained open to a potential breach of Article 8(1) in so far as the law prevented the applicant from exercising her choice to prevent an undignified and distressing end to her life. However, given the aims of the ban on assisted suicide to protect the vulnerable from abuse, the limitation on the applicant’s rights was held to be justified under Article 8(2).
In Gillan v United Kingdom, the exercise of stop-and-search powers by police was held to breach Article 8 of the Convention but not Article 5(1).51 The time that the applicants were detained was insufficient to amount to a deprivation of liberty so as to engage Article 5(1). A broader conception of ‘security of person’ might have encompassed this circumstance. Similarly, in Nada v Switzerland, the applicant was prohibited from entering Switzerland, which had the effect of preventing him from leaving the small Italian area in which he lived. The Strasbourg Court rejected his claim under Article 5 on the grounds that this did not constitute a deprivation of liberty within the meaning of Article 5 but found a violation of Article 8.52
A number of other cases have raised arguments that Article 5 has been breached alongside Article 3 and Article 8. As in Pretty, the pattern has been for the Strasbourg Court to reject the Article 5 claim and explore the issues under Article 3 or Article 8 or both. For example, in Rachwalski and Ferenc v Poland the Strasbourg Court found a claim that Article 5 was breached because of police abuse to be admissible in conjunction with claims under Articles 3 and 8.53 However, in the merits decision, the Strasbourg Court
comparative discussion, see M Cormack, ‘Euthanasia and Assisted Suicide in the Post-Rodriguez Era: Lessons from Foreign Jurisdictions’ (2000) 38 Osgood Hall LJ 591.
48 R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 [23].
49 Pretty v UK (n 46) [14]. 50 Rodriguez (n 9).
51 Gillan v United Kingdom (2010) 50 EHRR 45.
52 Nada v Switzerland (2013) 56 EHRR 18.
53 Rachwalski v Poland App no 47709/99 (ECtHR, 21 October 2008).
The right to security in the European Convention 19 found it ‘unnecessary’ to examine the complaint under Article 5 because it had already found breaches of Articles 3 and 8.54 In the case of Vasilyev v Russia, the applicant, who was in a situation of severe medical need, was abandoned by police and later neglected by doctors.55 Although a breach of the right to security was claimed, the Strasbourg Court was firm that Article 5 was not relevant as there was no deprivation of liberty. However, a breach of Article 3 was found because the state authorities had failed to take the requisite measures to prevent harm to the applicant’s life, and failed to administer appropriate medical treatment, in circumstances which were inhuman and degrading. Thus, scenarios which might arguably fall within the right to security but for the Strasbourg Court’s limitation of that right to detention, sometimes amount to a breach of Article 3 or Article 8. The next section of Chapter 1 shows that these same scenarios would be treated as breaches of the right to security under section 7 of the Canadian Charter.
In addition to interpreting the right to security, the rhetoric of security is used in Strasbourg judgments. In Yefimova v Russia, the obligation on the state to secure a detained person’s health and well-being and provide requisite medical assistance under Article 3 was noted, although that part of the application was dismissed as manifestly ill-founded on the facts.56 In Akdeniz v Turkey57 and Tanis v Turkey, 58 reference was also made to securing accountability of state authorities for unlawful detentions as well as securing liberty or the conditions against arbitrary detention. The purpose of Article 5 to secure ‘the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authorities’ is also commonly noted,59 as is the importance of the guarantees in Article 5 to ‘secure the right of individuals in a democracy to be free from arbitrary detention’.60 These statements reinforce the fact that in the ECHR the substance of Article 5 is the right to liberty and that the procedural protections are the mechanisms by which liberty is secured.
Notably, in Tepe v Turkey,61 a case of alleged abduction, torture, and murder at the hands of state authorities, a reference to ensuring or guaranteeing security is found. In previous cases, security had been portrayed as ensuring or guaranteeing the conditions of liberty and it is curious to see security portrayed as
54 Rachwalski v Poland App no 47709/99 (ECtHR, 28 July 2009).
55 Vasilyev v Russia App no 32704/04 (ECtHR, 17 December 2009) [160].
56 Yefimova v Russia App no 39786/09 (ECtHR, 19 February 2013).
57 Akdeniz v Turkey App no 25165/94 (ECtHR, 31 May 2005).
58 Taniş v Turkey (2008) 46 EHRR 14.
59 Krupko v Russia App no 26587/07 (ECtHR, 26 June 2014); El-Masri (n 33).
60 Shakhgiriyeva (n 35) [187]; Yusupova and Zaurbekov v Russia App no 22057/02 (ECtHR, 9 October 2008).
