Transnational Security and Human
Rights: Bridging the Divide
Ian Turner
Lancashire Law School
University of Central Lancashire
idturner@uclan.ac.uk
Overview of presentation
• Attacks by Islamist terrorists
• Counter-Terrorism and
Security Act 2015
• A right to security
• A ‘positive’ right to security
Ian Turner
Lancashire Law School
University of Central Lancashire
idturner@uclan.ac.uk
• Theoretical justifications for
a ‘positive’ right to security
Attacks by Islamist terrorists
• ‘9/11’ (2001)
• ‘The Shoe-bomber’
(Richard Reid) (2001)
• The ‘Ricin case’, a plot to
spread the deadly poison
ricin on the streets of
Britain (2003)
• Madrid train bombings
(2004)
Attacks by Islamist terrorists
• The ‘7/7’ attacks on the
London transport network
(2005)
• ‘21st July’ failed suicide
bombings in London (2005)
• ‘Airline Bomb Plot’, a plot to
blow up planes flying with
home-made liquids (2006)
• Car Bomb attack in Glasgow
(2007)
• Failed suicide bombing in
Exeter (2008)
Attacks by Islamist terrorists
• Failed attempt to blow up an
airliner at Detroit airport on
Christmas Day (2009)
• Parcel bomb from Yemen found
at East Midlands airport (2010)
• Woolwich attacks (2013)
• Shootings at the Jewish
Museum in Brussels (2014)
• Massacre at the offices of
Charlie Hebdo in Paris (2015)
ISIL – and the raising of the domestic
terror threat level
The Counter-Terrorism and Security Act 2015
“The shocking attacks in Paris last
month, in which 17 people lost their lives,
and the many plots that the police and
security and intelligence agencies
continually work to disrupt,
are clear evidence of the threat we face
from terrorism.”
The Counter-Terrorism and Security Act 2015
• Section 1 – seizure of passports etc from
persons suspected of involvement in
terrorism
• Section 2 – imposition of
temporary exclusion orders from
the United Kingdom
• Section 16 – amendment of the TPIMs 2011
Act allowing for a residence specified by the
Secretary of State, including at least 200 miles
away from a suspect’s home
A right to security: (1) ‘Negative individual security against the state’
The right to security of an individual is an example of a:
i) ‘First Generation’
ii) ‘civil and political’
iii) ‘negative’ right
iv) a ‘freedom from’ state intrusion.
Article 5(1) of the European Convention on
Human Rights (ECHR):
‘Everyone has a right to liberty and
security of person.’
A right to security: (2) ‘Security as justification to limit human rights’
Many individual human rights are ‘qualified’,
in that they can be infringed by the state only for legitimate purposes
such as security.
Article 8(1) of the ECHR is the right
to privacy but is qualified by
Article 8(2), in the interests of:
i) national security
ii) territorial integrity or public
safety
iii) for the prevention of disorder
or crime etc
A right to security: (3) ‘International, collective or human security’
The right to security is also a:
i) ‘Third Generation’
ii) ‘collective’ right of peoples and groups of individuals.
For example, Article 23(1) of the African Charter on
Human and Peoples’ Rights (ACHPR) states:
‘All peoples shall have the right to national and
international peace and security.’
A right to security: (3) ‘International, collective or human security’
The ‘responsibility to protect
populations from genocide, war
crimes, ethnic cleansing and crimes
against humanity’ (‘R2P’)
• This imposes obligations on
states to protect their civilians
(‘Pillar I’) and
• the international
community to help states
meet those obligations
(‘Pillar II’).
A right to security: (3) ‘International, collective or human security’
If a state has ‘manifestly failed’ in
its duty to protect, then ‘Pillar III’ is
particularly relevant:
‘The international community…has
the responsibility to use
In this context, we are prepared to
appropriate diplomatic,
take collective action, in a timely
humanitarian and other peaceful
and decisive manner…on a casemeans…to help to protect
by-case basis and in cooperation
populations...
with relevant regional
organizations as appropriate,
should peaceful means be
inadequate…’
A right to security: (4) ‘Positive state obligation to offer security to
individuals against other individuals’
The final security concept requires states to take ‘positive’
measures to prevent harms committed by non-state actors.
In protecting individuals from violations of rights
by third parties
– killing, torture, enforced disappearance,
slavery, for example –
states are obliged to, say, criminalise such abuses
and
to investigate, prosecute, convict and adequately
punish those found to be responsible
A right to security: (5) ‘Positive state obligation to offer security to
individuals against other individuals’
Regionally, the concept of ‘positive’
obligations seems to be most developed in
the case law of the ECHR, such as:
• Article 3, freedom from torture and
inhuman and degrading treatment and
punishment:
MC v. Bulgaria (2005) 40 EHRR 20
In some instances ‘positive’ obligations can be drawn from the text of the
right itself:
• Article 2(1) states: ‘Everyone’s right to life shall be protected by law.’
A right to security: (5) ‘Positive state obligation to offer security to
individuals against other individuals’
Individual protections aside, the ECHR
also imposes a ‘positive’ duty on member
states to respect human rights;
indeed, the full title of the ECHR is the
‘Convention for the Protection of Human
Rights and Fundamental Freedoms’.
And of particular significance is Article
1 of the ECHR:
‘The High Contracting Parties shall
secure to everyone within their
jurisdiction the rights and freedoms
defined in Section I of this Convention.’
Bridging the divide: a ‘positive’ right to security
• A lawful killing?
• A lawful torture?
• Greater ‘controls’ over those
suspected of terrorism?
Theoretical justifications for a ‘positive’ right to security:
‘social contract’ (1) Thomas Hobbes (1588-1679)
• Hobbes’ most famous
work was Leviathan
which was first published
in 1651.
• Hobbes lived during a
very turbulent time in
England’s history eg Civil
War so was greatly
concerned at the evil of
state collapse.
Hobbes sought, therefore, to effect a strong central authority that
maintained peace and order.
Theoretical justifications for a ‘positive’ right to security:
‘social contract’ (1) Thomas Hobbes (1588-1679)
• If not, anarchy, which
Hobbes described as a
‘state of nature’,
would ensue
– a place where only
the strong would
survive
• Human life in the ‘state of
nature’ would be:
‘solitary, poor, nasty, brutish,
and short’.
Theoretical justifications for a ‘positive’ right to security:
‘social contract’ (1) Thomas Hobbes (1588-1679)
• Only when the state had
failed to fulfil its bargain of
protection had it exceeded
its authority and the
individual’s duties to honour
the social contract were
severed.
Theoretical justifications a ‘positive’ right to security: ‘social contract’
(1) Thomas Hobbes (1588-1679)
• In condoning an oppressive
government
– if it provides peace and order –
this state ‘absolutism’ ignores the reason
why we may be entertaining a right to
security in the first place:
• to protect the very principles of
democracy we are seeking to defend.
• Indeed, Hobbes also failed to
appreciate how the state itself might
pose a threat to security
Theoretical justifications for a ‘positive’ right to security:
‘social contract’ (2) John Locke (1632-1704)
• For Hobbes bad government was
better than no government. Not so
for John Locke who was writing a
generation after Hobbes.
• Locke’s principal work, Two
Treatises of Government, which
was published in 1690, was a
reaction to the allegedly tyrannical
government of James II.
Theoretical justifications for a ‘positive’ right to security:
‘social contract’ (2) John Locke (1632-1704)
• But Locke further believed that
the individual’s obligation to obey
the state, in return for security,
ceased in circumstances less
demanding than a breakdown of
peace and order:
‘To tell people they may provide for themselves by erecting a new
legislative, when, by oppression, artifice, or being delivered over to a
foreign power, their old one is gone, is only to tell them they may expect
relief when it is too late, and the evil is past cure.
This is, in effect, no more than to bid them first be slaves…and men can
never be secure from tyranny if there be no means to escape it till they
are perfectly under it.’
Theoretical justifications for a ‘positive’ right to security:
‘social contract’ (2) John Locke (1632-1704)
Furthermore, again in opposition to Hobbes,
Locke viewed the ‘absolute’ power of the
sovereign as a threat to the security of
individuals.
He therefore advocated a minimal
state, whose power was limited to its
preservation; and therefore one that
guaranteed much more freedoms to
the individual.
‘[The] legislative can have no more power than this. Their power in the
utmost bounds of it is limited to the public good of the society.
It is a power that hath no other end but preservation, and therefore can
never have a right to destroy, enslave, or designedly to impoverish the
subjects…’
Theoretical justifications for a ‘positive’ right to security:
contemporary liberalism of John Rawls and Ronald Dworkin
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’
The author’s theoretical justification
for a right to security is a
compromise between the social
contract theories of Thomas Hobbes
and John Locke:
• Hobbesian ‘absolutism’ ignores,
say, liberal concerns about the
state being a threat to security
but
• liberals perhaps pay too much
attention to individualism and too
little attention to ‘community’.
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’
Recent communitarian theorists are Amitai Etzioni
and Mary Ann Glendon
For them, an important communitarian principle is redressing
the balance between individual rights and social responsibilities
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’
Unless society begins to
redress the balance between
rights of the individual and a
person’s obligations to the
community:
communitarians believe society is, and
will continue to be, self-centred and
driven by self-interests.
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’
no society can
survive if people
only want rights
and are unwilling
to assume
responsibilities
‘To take and not to give,
to draw on the commonwealth, but to refuse
to contribute,
people demanding that the government, and
above all taxes, be curtailed,
while still seeking more government services
from education to public health, from housing
to protection from crime.’
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’ and security
For Etzioni the
right to security is
more fundamental
than any others.
So much so, ‘it
ought to be
treated as a class
unto itself’.
The main reason that the right to security
takes precedence over all others is that all
the others are contingent on the protection
of life – whereas the right to security is not
similarly contingent on any other rights.
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’ and security
And in reference to, say,
security measures post ‘9/11’,
Etzioni believes that nations
did not lose their liberty as a
result of a small accumulation
of increased safety measures:
‘they did so when
they failed to
respond to urgent
public needs.’
‘True patriots…realize that one must protect the nation from all
enemies and the essence of what it means to be patriotic is to
protect our Constitution and its Bill of Rights with all our might.’
Theoretical justifications for a ‘positive’ right to security:
‘communitarianism’ and security
Article 17 of the ECHR:
‘Prohibition of Abuse of Rights’
•
Nothing in this Convention may be
interpreted as implying for any State,
group or person
•
any right to engage in any activity or
perform any act aimed at
•
the destruction of any of the rights
and freedoms set forth herein or at
their limitation to a greater extent than
is provided for in the Convention.
A ‘positive’ right to security, grounded in communitarianism
Ian Turner
Lancashire Law School
The University of Central Lancashire
idturner@uclan.ac.uk