Rights as Security: The Theoretical Basis of Security of Person

193 Pages·2019·1.075 MB·English

by  Rhonda Powell

RIGHTS AS SECURITY
ii
Rights as Security
The Theoretical Basis of Security of Person
RHONDA POWELL
1
Rights as Security: The Theoretical Basis of Security of Person. First Edition. Rhonda Powell.
© The several contributors 2019. Published 2019 by Oxford University Press.
iv
1
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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 life-
changing 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 improve-
ments. 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, sev-
eral 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 pro-
vided 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.
Rights as Security: The Theoretical Basis of Security of Person. First Edition. Rhonda Powell.
© The several contributors 2019. Published 2019 by Oxford University Press.
vi
vi Acknowledgements
My children, Matilda and George, tolerate my never-e nding 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 bur-
geoning 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 le-
gislation was passed throughout the world in the early twenty-fi rst 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 alterna-
tive 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).
Rights as Security: The Theoretical Basis of Security of Person. First Edition. Rhonda Powell.
© The several contributors 2019. Published 2019 by Oxford University Press.
2
2 Introduction: The Right to Security of Person
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-T errorism’ (2017)
13 Democracy and Security 46.
8 See, eg, International Covenant on Civil and Political Rights (adopted 16 December 1966, en-
tered 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.
The illusive right to security 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 un-
controversial. 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, en-
tered 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.
4
4 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 ad-
equately addressed, with scholars proposing different understandings of what
the right to security of person means. For example, Sandra Fredman enunci-
ates 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 be-
comes ‘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 ex-
ample, 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 ap-
proach 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 inconsist-
ency 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).