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http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx

What are human rights?

Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or
ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without
discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of treaties, customary international
law , general principles and other sources of international law. International human rights law lays down obligations of
Governments to act in certain ways or to refrain from certain acts, in order to promote and protect human rights and
fundamental freedoms of individuals or groups.

Universal and inalienable

The principle of universality of human rights is the cornerstone of international human rights law. This principle,
as first emphasized in the Universal Declaration on Human Rights in 1948, has been reiterated in numerous
international human rights conventions, declarations, and resolutions. The 1993 Vienna World Conference on Human
Rights, for example, noted that it is the duty of States to promote and protect all human rights and fundamental
freedoms, regardless of their political, economic and cultural systems.
All States have ratified at least one, and 80% of States have ratified four or more, of the core human rights treaties,
reflecting consent of States which creates legal obligations for them and giving concrete expression to universality.
Some fundamental human rights norms enjoy universal protection by customary international law across all
boundaries and civilizations.

Human rights are inalienable. They should not be taken away, except in specific situations and according to due
process. For example, the right to liberty may be restricted if a person is found guilty of a crime by a court of law.

Interdependent and indivisible

All human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the
law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and
education , or collective rights, such as the rights to development and self-determination, are indivisible, interrelated
and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of
one right adversely affects the others.

Equal and non-discriminatory

Non-discrimination is a cross-cutting principle in international human rights law. The principle is present in all the
major human rights treaties and provides the central theme of some of international human rights conventions such
as the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the
Elimination of All Forms of Discrimination against Women.

The principle applies to everyone in relation to all human rights and freedoms and it prohibits discrimination on the
basis of a list of non-exhaustive categories such as sex, race, colour and so on. The principle of non-discrimination is
complemented by the principle of equality, as stated in Article 1 of the Universal Declaration of Human Rights: All
human beings are born free and equal in dignity and rights.

Both Rights and Obligations

Human rights entail both rights and obligations. States assume obligations and duties under international law to
respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering
with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and
groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate
the enjoyment of basic human rights. At the individual level, while we are entitled our human rights, we should also
respect the human rights of others.

Human Rights And Their Universality

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Question:
Human rights are: indivisible and interdependent. inalienable and universal. (W102, Unit 14, Section 1)
Given that some rights are derogable and others non-derogable, evaluate the accuracy of the above statement.

Answer

The universality of human rights (HRs) is represented by the fact that they are recognised in international law. They
represent a global and regional system of protection which stems from the Universal Declaration of Human Rights of
1948, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and
Cultural Rights adopted in 1976, the European Convention on Human Rights and Fundamental Freedoms (ECHR),
as well as the monitoring function of the Human Rights Council.[1]

When talking about HRs the natural law view can be taken: that HRs are derived from natural law, and that people
enjoy them simply because of being human; on the other hand, if the legal positivist view is taken, rights are derived
from legal systems and conferred by positive laws. [2] Furthermore, a differentiation can be made between political
rights, socio-economic rights, and collective rights.[3] The ECHR is mostly concerned with political rights or first
generation rights, such as the right to life, equality of treatment before the law and freedom from discrimination.[4]

This essay looks into how the British government can limit the political rights of individuals by derogating from its
Convention obligations under Article 15, particularly regarding terrorism, and it analyses the consequences of this
power conferred on the government and which affects the essence of HRs, its principles of universality, indivisibility
and inalienability.

Hohfeld expressed the view that the characteristic of a right is that it places a duty on others and he distinguishes
them from privileges which, he argues, have no correlative duty to impose on anyone; in other words they are more
linked to the concept of freedoms than to the concept of rights. [5] Dworkin emphasises that it is important to use the
word 'rights' carefully; he says: ' when we say someone has a right to do something, we imply that it would be wrong
to interfere with his doing it or at least that some special grounds are needed to justify any interference'.[6]

However, although other people's rights must be respected, the rights of one individual do not grant more respect or
have more importance than the rights of another; this creates an inherent conflict between rights where different
people wish to exercise them in a conflicting way.[7] Furthermore, there is the important relationship of individuals as
part of society and the state, a relationship also bound by principles of equality through the rule of law, which
encapsulates some of the key rights which should be protected by a code of HRs.[8]

The state is by no means unaccountable; as far back as Entick v Carrington [9] it was established that everyone,
including officers of the state had to show legal authority for their actions. The decision in Entick ensured that if the
government is to interfere with people's rights, it must be empowered with proper and legitimate authority; apart from
that, it restates that the law should possess characteristics consistent with fairness and due process. [10]

However, it is fair to argue that in order to protect its citizens, the state must have tools to do so, and the ECHR
allows for the state to make temporary derogations from Convention rights under Article 15 ECHR - contained in
Article 14 of the Human Rights Act 1998 (HRA 1998) - in order to deal with emergencies or any other special
circumstances. The main concern of the ECHR is the protection of individuals against infringements from the state or
its organisations, a vertical effect, rather than a horizontal effect of protecting rights between two individuals.[11] As
such, derogation is not without supervision: a declaration must be submitted to the Secretary General of the Council
of Europe, who must be kept informed as to when the emergency measures have ceased to operate and the
provisions of the Convention are fully executed again.[12]

Although it is not possible to derogate from absolute rights such as the rights to life or freedom from torture, States
have derogated mostly from the provisions of Article 5, right to liberty and security and from article 6, right to a fair
trial. [13] The British government has used its power to derogate from Convention rights, particularly on issues of
terrorism: in 1988, it made a derogation as to detention before charge to deal with terrorism in Northern Ireland; the
derogation was lifted in 2001. This derogation involved both, Article 5 and 6 ECHR.[14]
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The derogation followed the ruling of the European Court of Human Rights (ECtHR) in Brogan v UK [15] where the
Court held that the UK had violated Article 5(3) ECHR by detaining four applicants without having brought them
promptly before a judge. They had been arrested, under s 12 of the Prevention of Terrorism Act 1984 which allowed
the authorities to detain terrorist suspects on the basis of reasonable suspicion that they had been involved in the
committing, preparation or instigation of acts of terrorism connected with Northern Ireland. [16] As a consequence of
the derogation, the ECtHR found that the UK had complied with the requirements of the Convention in a subsequent
case, Brannigan and McBride v United Kingdom [17] and therefore, there had not been a violation of Article 5.[18]

Such derogation had not been the first one made by the British government. The UK provided the Secretary General
of the Council of Europe with six notices of derogation between 1957-1975 bringing to his attention special and
judicial powers it had invoked.[19] These derogations were considered in Ireland v UK [20] where the ECtHR gave
the UK a wide margin of appreciation and ruled that the derogation of Articles 5 and 6 ECHR had been compatible
with the obligations under Article 15. However, it found the UK in breach of Article 3 (freedom from torture).[21]

Ireland was an interstate case brought against the UK by the Republic of Ireland; it concerned the UK obligations
under the ECHR in Northern Ireland between 1971 and 1975, where, in order to restrain republican violence, the UK
authorised extra-judicial powers to allow the extra-judicial deprivation of liberty. [22] More recently, the British
government derogated again from Articles 5 and 6 ECHR in the aftermath of the terrorist attacks on 11 September in
New York. It allowed for detention without trial under special circumstances but it was quashed in A v Secretary of
State for the Home Department [23] by the House of Lords. [24]

In this case, the claimants were detained under the Anti-Terrorism, Crime and Security Act 2001 (ACTSA); they were
all foreign nationals and terrorist suspects, detained in Belmarsh Prison. Although the Special Immigration Appeals
Commission recognised that there was a justification for the derogation, it held that the provisions and the way they
were enforced was discriminatory, in violation of Article 14 of the Convention which prohibits discrimination related to
exercising other Convention rights.[25] The Court of Appeal disagreed, and ruled that the detentions were compatible
with the Convention, including Article 14. On appeal in the House of Lords, the majority ruled that indefinite detention
without trial or charge was incompatible with the ECHRs and they could not be justified by using the derogation in
Article 15.[26]

The ruling in A v Home Secretary of State for the Home Department stresses the important role of the courts in
keeping the balance between protecting the right to life of people in Britain and fighting terrorism while still respecting
the human rights of others; UK courts must do so, despite the wishes of Parliament if necessary, as they are bound
by the Convention to follow the principle of proportionality to determine if the interference is justified in a democratic
society in order to attain a legitimate aim. [27]At an international level, the task belongs to the ECtHR, which has
established a national margin of appreciation in order to allow national courts to reach their own decisions.[28]

Although ACTSA went beyond any other anti-terrorist legislation and the derogation of Article 5 was controversial, it
could be argued that its enactment could be justified as a global response to international terrorism and the
cooperation demanded at global level from the UK on combating it;[29] however, the prospect of denying non-
nationals the same basic legal protections afforded to British people, is to deny their humanity and to set them apart;
to place some rights as more important than others, therefore threatening the indivisibility of Human Rights by picking
and choosing among them, ignoring some while insisting on others is a concept that seems daunting.[30]

It could be argued that in order to strengthen the protection of HRs, it is necessary to have a stronger justificatory
basis for them by recognising that HRs are based fundamentally on human dignity, and thus strengthening the
Hohfeldian view that they place a duty on others, particularly on the state by recognising the nature of HRs law as
distinct from other law. [31]

The concept of dignity would also strengthen the natural view, that HRs are possessed by all humans and that they
are not merely legal rights given by national or international law but attached to a person regardless of legal systems.
However, despite the fact that the Universal Declaration of Human Rights refers to the possession of dignity as the
moral basis to which human rights are attached, it omits giving it a definition. An explicit reference to dignity is also
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lacking from the ECHR and it was remarkably lacking from the judgment in A v Secretary of State: after all, indefinite
detention without trial infringed the dignity of those being detained.[32]

The protection of dignity would be a means to recognise the universal an inalienable nature of HRs but it would also
need a broad judicial re-characterisation, and a different approach from the ECtHRs regarding principles such as the
margin of appreciation; invoking dignity as a justification for HRs does not need a tool of construction giving
substantive content to HRs to determine the scope of its application.[33]

The dignity approach is not without difficulties. McCrudden described dignity as a 'place holder', encompassing a
wide range of substantive concepts and characteristics which are capable of forming the basis of HRs and he points
out that the problem may be that the concept of dignity involves engagement with moral questions on which there is a
lot of disagreement.[34] However, the concept of dignity is already being used in equality law through the recognition
that human dignity can provide a very valuable underpinning to the concept of equality.[35]

In conclusion, derogation as a tool to control emergency situations is an important and necessary tool given to States
in order to protect their citizens. It raises a lot of questions in that sometimes it is hard to justify; for instance, was the
derogation made by the British government when enacting ATCSA necessary when the terrorist attacks were in the
US rather than in Britain? Was fear of potential attacks sufficient to justify direct interference with HRs by imposing
indefinite detention without charge aimed solely at a group of specific people? The Human Rights Committee (HRC)
stressed in its General Committee Comment 29[36] that in order to achieve proportionality when justifying the
interference with Human Rights, the measures taken must be strictly required by the demands of the situation, that is
to say, strictly proportionate to the specific threat in terms of duration, geographical coverage and material scope of
the emergency.[37]

The HRC went further to say that no declaration of a state of emergency may be invoked as a justification for a state
to engage itself in advocacy of national, religious or racial hatred that would represent incitement to discrimination,
hostility or violence.[38] It is questionable whether a state of emergency should be called when it is actually
happening or if it should be called purely as a preventive measure. States of emergency have been shown through
history to be used as veils for gross abuses of Human Rights.[39]

This brings us back to the point that, ultimately, creating a balance is left in the hands of the courts. It also brings us
back to the argument of whether the judicial approach to HRs should be based more on a concept of dignity as the
basis for the Convention rights through recognising the connection between the worth of an individual, the possession
of dignity and the possession of rights in order to protect the indivisibility, inalienability and universality of human
rights.