The Fight against TCOs as a Threat to Human Rights

General human rights restrictions by states

Rights fall into categories that differentiate the level of permissible state interference: absolute versus qualified rights, derogable versus non-derogable rights.64 Human rights treaties distinguish the rights within, identifying some that are unimpeachable regardless of whether a public emergency befalls a state, some that from which derogation is permissible in a time of public emergency, and others that can have restrictions placed upon them under law and for a specific, listed purpose, in circumstances other than a public emergency. For example, under the ICCPR, in times of public emergency under Article 4 derogation from rights relating to life, torture, and slavery is not permissible, but within those rights’ articles there is scope to lawfully interfere with the rights to life (i.e. impose the death penalty)^ and to freedom from slavery (through the exception for ‘forced or compulsory labour’ as part of a prison sentence).66 The right to freedom of association with others is an example of a qualified right, that is a right that can be interfered with under legal prescription, when necessary in a democratic society and for one of the listed legitimate aims such as national security or public safety.67 Who would decide as to the existence of a public emergency or necessity in a democratic society? Respectively, the executive or legislature of the state. For example, the case of A & Others in the UK provides a good illustration of this: the highest court in the UK was faced with the question whether an anti-terrorism statute (enabling the indefinite detention of suspected international terrorists) complied with the UK’s obligations under the European Convention on Human Rights.6® The first question the judges answered was whether there existed a public emergency that could be invoked by the executive to encroach on the suspects’ rights; the majority of judges declined to be drawn into this question, deeming the determination of a public emergency a question for politicians privy to security and intelligence information.[1] Their second question—whether the indefinite detention provision satisfied the conditions of necessary in a democratic society and for a legitimate aim—was one they could examine, focusing on justiciable appraisals of proportionality.[2] [3] [4] This example shows government and judiciary having particular roles regarding the parameters of derogable and qualified rights, and the principle of the rule of law assisting in correctly assigning those roles; an example of the application of international human rights law to domestic law, and how it can lawfully have restrictions.

  • [1] Ibid, paras 27-9. 70 Ibid, paras 43-4.
  • [2] 71 The list was established on the basis of UN SC Resolution 1267 of 15 October 1999. See http://unscr.
  • [3] com/en/resolutions/doc/1267, accessed 29 February 2016.
  • [4] Cf. the Unruh Civil Rights Act, California Civil Code, p. 51, available at: http://law.onecle.com/california/civil/51.html, with Cohen v California, 403 US 15 (1971) and Hessians Motorcycle Club v J. C.Flanagans, Court of Appeal, Fourth Dist., Div. 3, California, available at: http://caselaw.findlaw.com/ca-court-of-appeal/1464906.html, both accessed 12 February 2016.
 
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