Post No.: 0799
Following on from our introduction to International Human Rights Law in Post No.: 0792 – States should respect (typically these are negative obligations), protect (typically these are positive obligations) and fulfil (these are also typically positive obligations) human rights, including by actively providing certain social goods that aren’t being adequately delivered through market mechanisms (e.g. fulfil adequate housing, fulfil education, fulfil healthcare, fulfil sanitation, provide food parcels and water). States should intervene in market relationships to protect the weak from the powerful (e.g. against child labour exploitation or employment discrimination), and to protect individuals against human rights violations caused by private, non-state actors.
Negative obligations are, on paper, easier to fulfil because they’re about not doing something, and breaches of these rights are relatively more black-or-white to spot; whereas positive obligations require resources because they’re about doing something, which means that we need to determine what we should ‘reasonably expect’ a State to fulfil according to the means available to them. The former in turn is more easily enforceable by the courts than the latter. Most argue that the courts are only there to carry out the law (as the judiciary) rather than to write it (as the legislative), which it’d have to do if the courts were tasked to determine what actors are ‘reasonably expected’ to do.
The right to life may not be restricted and yet it imposes duties to protect (e.g. to protect citizens who receive death threats from others). Meanwhile, the duty to respect may correspond to a right that may be restricted (e.g. the right to freedom of expression – although imposing on the State a duty to respect, such as by not censoring the press – may be restricted in special circumstances).
Peremptory norms (jus cogens) are rules that States cannot circumvent even via treaties that would claim an exemption from them. Examples include trading slaves, torture, genocide and subjecting people to the retroactive application of penal laws. States may suspend some human rights obligations in the actual face of national security emergencies or when their very survival is at stake – but never these rights. The only way they can ever be derogated from is if the relevant normative right is no longer actually considered a normative right (which could happen, because what is an ‘objective’ human right or judicial interpretation except, in practice, one that’s held by an overall consensus by the international community?)
So under certain extreme emergency circumstances that pose a grave threat to the survival of a nation – perhaps due to an armed conflict, pandemic, natural disaster, imminent terrorist attack, a mass demonstration with instances of violence, a major industrial accident or some other public emergency – a State can temporarily suspend some International Human Rights Law obligations until the crisis is over; bar some non-derogable exceptions like the right to life, or to not be mentally or physically tortured, inhumanely punished or degradingly treated.
Even more routinely, certain human rights can be and are restricted – States may, under strict conditions, limit the ways under which people move across their territories, express their religious beliefs or express themselves in newspapers. Whilst non-derogable human rights cannot ever be suspended, some non-derogable human rights provide for limitations in their ordinary application (e.g. limiting the freedom of thought, conscience and religion, such as when tackling inciteful hate speech). A limitation is however only acceptable if it is in the public interest, it is applied transparently and in accordance with the law, and it is the least restrictive option available.
Some rights are considered ‘absolute’ and cannot be restricted for any reason (e.g. freedom from slavery), whilst most rights are non-absolute thus can be reasonably limited under strict conditions (e.g. freedom of speech). An additional way of categorising rights is by those that are considered ‘non-derogable’ and cannot ever be suspended even in times of war or national emergency (e.g. the right to life), and those that are derogable under such circumstances (e.g. the right to liberty and security, such as when terror suspects are detained without charge, although this should never be for an indefinite time).
National authorities are usually given a wide margin of appreciation in how they attempt to overcome a ‘grave threat to the survival of their nation’ for being the ones closest to the pressing needs of the moment. But they might have to notify other member States in the international community of their intentions. Non-derogable rights must also never be suspended, States must not go beyond what’s necessary and proportional, and no discrimination on the grounds of race, colour, sex, language, religion or social origin is permissible. Yet terror suspects are frequently arbitrarily detained according to their race or religion, and extraordinary renditioned to places where they’ll be exposed to ‘enhanced interrogation’ techniques.
The USA was a ratified member of the UN Convention Against Torture (UNCAT – meow) during and following 2001, yet nonetheless detained without charge and tortured suspected terrorists in Guantanamo Bay through techniques like prolonged sleep deprivation, binding in stress positions and waterboarding. And no one got punished for this violation either even though if they are isolated cases then the State must investigate, prosecute and punish the human rights offenders, or if they are a widespread practice (a crime against humanity) then the international community should step in and help to do so. We should also note that confessions extorted via torture cannot be admitted in evidence, except against the torturer. It doesn’t matter whether they are actual terrorists – under no circumstances can someone be tortured. The USA also deported persons suspected of being linked to ISIS from Syria to Iraq even though there was a real risk they’d face torture, death or unfair trials there – this is also prohibited even if their presence represents a risk to the national security of the country where they’re staying. (Sufficient diplomatic assurances that a detainee’s rights will be protected in the receiving State are acceptable though, debatably.)
In fairness, most countries in the world have had at least one allegation or case of torture made against them. China currently violates multiple human rights concerning the lives of Uyghur and other minorities, claiming that it’s for tackling terrorism too. But what can we do when powerful nations get away with breaking international law? Lots of other countries do also expressly think ‘if the USA doesn’t follow the rules as a self-proclaimed ‘land of the free’ and shining beacon of democracy then why should we?’ Organisations like Human Rights Watch and Amnesty International continue to scrutinise these kinds of challenges.
Torture or ill treatment is never a viable self-defence response even in times of war. False confessions are too easy to generate thus torture isn’t a reliable way to save even potentially thousands of lives during times of emergency. ‘I need to torture these guys to protect the right to life of innocent people’ isn’t permissible because there is no hierarchy of human rights to say that one right overrides another.
Some human rights freedoms impinge on the enjoyment of human rights by other individuals. Examples include the freedom of expression versus spreading lies or hate speech that will harm others or the community as a whole, or the rights of an unborn child versus a pregnant woman regarding abortion, or the rights of someone who wishes to play their own music loud versus the rights of those who want peace and quiet in the neighbourhood.
As touched upon earlier, if the State can put forward strong reasons to do so that purrsue the general interest of the public then it can place certain limitations on human rights. A legitimate purpose may for instance relate to the maintenance of public order, public security, public morals, public health or the preservation of the rights and freedoms of others. A restriction will not be permitted if it is imposed for arbitrary reasons, out of convenience, or because a particular group is disliked by the authorities or certain opinions aren’t considered welcome by the State (e.g. China or Saudi Arabia’s government silencing any citizen who simply speaks against them).
In principle, human rights are precisely conceived to protect the minority from the majority, and to ensure that unpopular or shocking viewpoints can be expressed without fear or censorship. But if the majority of the population strongly opposes abortion, for instance, then under democratic rule, the majority can limit certain conducts that are considered important for a minority – provided that such limitations have been the object of an open and public debate, and that the restrictive measures are justified, such as because it’s about protecting the rights of foetuses, who pro-life supporters believe are already human beings who therefore have human rights. The rights of the unborn child and the mother are equal, hence open and public debate can break such a deadlock, but the reasons cannot be based on prejudice or a ‘disgust’ for certain segments of the population.
Some forms of expression may be prohibited if they advocate values that run against human rights, and organisations can be outlawed if they try to attack and deny the human rights of others. People may be penalised for expressing their views if the justification for the penalty is to respect the rights or reputations of others (e.g. defamation via slander or libel can be punishable), to protect national security or to protect the public interest. People shall not abuse their rights either.
A sufficiently precise and reliable legal framework lets citizens clearly know where they stand and what the consequences would be with regards to what they can say or do. This would prevent a ‘self-censorship’ or ‘chilling effect’ where people might not risk exercising certain individual freedoms of theirs for the fear of the unpredictable legal consequences i.e. people should not be caught by legal surprise.
The requirement that any restriction must be transparent and ‘in accordance with the law’ is also to ensure that public officials cannot abuse their power by imposing restrictions in an arbitrary or discriminatory fashion, or use their power to reward certain political supporters or favour cronies or family members.
A restriction must not be excessive or go beyond what’s required to fulfil the legitimate objective pursued. Most human rights claims succeed or fail based on this condition. But exploring deeper the issue of when two incommensurable rights clash against each other – how can we possibly weigh them up so that the costs of restricting the extent of one right balances with the benefits of protecting another (e.g. the importance of freedom of expression with the importance of maintaining public order)? How can we work out what limitations of rights are ‘necessary’ or ‘proportional’ or therefore ‘excessive’? It’s not like a financial cost-benefit analysis where a common metric is available (in this case money). Science cannot give us objective answers here because it’s like trying to balance a temperature to a length.
There has therefore been a tendency in human rights monitoring to focus less on the substance of the restrictive measures adopted and more on the procedures through which a decision to restrict was made – such as the extent to which the views of impacted individuals were taken into account throughout the decision-making process, the research, considering the alternatives, and the procedural safeguards that were in place. This is why inclusive and transparent democratic decisions, such as if the public votes to allow or disallow abortion, are permissible.
However, by focusing on who was consulted and how – can human rights courts effectively respect, protect and fulfil the rights of individuals or are they effectively relinquishing this role? Or is this the best we can do because there are no objective answers to what we ‘ought’ to prioritise when it comes to what rights to respect, protect or fulfil?
Meow. If you would like to, please share your thoughts about this appreciable conundrum through the Twitter comment button below.