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  This module is a resource for lecturers  

 

International human rights law

 

The UN CT Strategy, and related legal framework, is premised on the understanding that effectively combatting terrorism while respecting human rights and fundamental freedoms is not only possible, but also necessary.

Though outside the scope of the current University Module Series, brief mention must be made of the many criticisms, complaints and litigation regarding the Security Council's own practices, particularly in relation to its sanctions regime under Security Council Resolution 1267 (1999) especially. From these, it is clear that not only States, but also international organizations, including the United Nations, are expected to abide by fundamental human rights standards with respect to their own institutional counter-terrorism measures. (See United Nations, Security Council Committee).

The scope of international human rights law principles is far reaching, with human rights standards and obligations lying at the heart of national, regional and international counter-terrorism responses. There is, however, an underlying, recurring tension between meeting national security imperatives and upholding human rights which is explored in subsequent Modules. It is of special importance to respect and abide by human rights principles in the context of counter-terrorism, not least since a common goal of terrorist activities is to seek to undermine those very rights and fundamental freedoms (see Modules 1 and 2). Due to the significant negative impact that terrorism can have on human rights, any counter-terrorism measures that ignore or damage human rights are self-defeating and unacceptable in a society guided by the rule of law and democratic values.

Human rights are universal values and legal guarantees that protect individuals and groups against actions and omissions, caused primarily by State action, that interfere with fundamental freedoms, entitlements and human dignity. As such, they are universal, interdependent and indivisible. This section focuses on human rights specific instruments.

Universal Declaration of Human Rights 1948

In terms of the key legal instruments, the starting point is the Universal Declaration of Human Rights 1948 (UDHR). The text was adopted as a "common standard of achievement for all peoples and nations", which identified common goals for States to work towards realizing. The UDHR is notable for a number of reasons. One is that it represents the first human rights instrument of universal relevance, despite some ongoing debates regarding its cultural relativity. Though only 48 United Nations Member States existed at the time the UDHR was adopted by the General Assembly, at the World Conference on Human Rights in Vienna in 1993, 171 States reiterated the universality, indivisibility and interdependence of human rights, and reaffirmed their commitment to the UDHR.

Notably, the UDHR incorporates civil and political with economic, social and cultural rights, though this was not reflected in the subsequent treaty negotiations, resulting in the adoption of two treaty instruments, the International Covenant on Civil and Political Rights 1966 (ICCPR) (Treaty Series, vol. 999, p. 171 and vol. 1057, p. 407) and the parallel International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) (Treaty Series, vol. 993, p. 3). This was due to factors such as differences of opinion regarding the nature of the accompanying obligations, the relative importance of these rights, and so forth (which had also been evident during the negotiation of the UDHR text). Furthermore, although not of itself a binding legal instrument as a declaration (i.e. resolution) of the General Assembly, nevertheless its text has been a source of inspiration to hundreds of other binding and non-binding instruments, such as national constitutions and law, United Nations resolutions (it is often cited in their Preambles), and over 60 regional and international human rights treaties. It has also been translated into at least 439 different languages.

Overarching principles of the UDHR include that: "All human beings are born free and equal in dignity and rights" (article 1); and basic principles of equality and non-discrimination on such grounds as "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (article 2). Of particular relevance to counter-terrorism efforts are articles 4-21 which detail civil and political rights (e.g., the right to life, liberty and security of person, prohibition against torture). Articles 22-27 then focus on economic, social and cultural rights.

Some argue that the UDHR itself has acquired customary international law status ( Continued Presence of South Africa in Namibia, 1971, p. 16; United States of America v. Iran, 1981, p. 45). Whilst it is certainly the case that a number of its individual provisions have such status, e.g. the prohibition against torture, it is questionable whether the whole instrument has entered into customary international law despite the subsequent State practice. See, e.g. the vague and general wording of articles 10 and 19.

International human rights instruments

Within the United Nations human rights system, there are nine core international human rights instruments, a number of which have optional protocols which should inform State counter-terrorism law, policy and practice, as well as enable individual complaints to be made alleging human rights violations by States parties in respect of their treaty obligations. A number of these treaties are of special relevance to countering terrorism.

International human rights conventions relevant to counter-terrorism

  • International Convention on the Elimination of All Forms of Racial Discrimination (adopted on 21 December 1965, entered into force 4 January 1969)
  • International Covenant on Civil and Political Rights (adopted on 16 December 1966, entered into force 23 March 1976)
    • Optional Protocol (adopted on 16 December 1966, entered into force 23 March 1976)
    • Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty (adopted on 15 December 1989, entered into force 11 July 1991)
  • International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966, entered into force 3 January 1976)
  • Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984, entered into force 26 June 1987)
    • Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 18 December 2002, entered into force 22 June 2006)
  • Convention on the Rights of the Child (adopted on 20 November 1989, entered into force 2 September 1990)
International Convention for the Protection of All Persons from Enforced Disappearance (adopted on 20 December 2006, entered into force 23 December 2006)

Complying with these obligations requires States to develop national counter-terrorism policies, laws and practices that seek to prevent terrorism, as well as prosecute and punish those responsible for terrorist acts, in a manner that is consistent with the promotion of and respect for human rights. These activities must also include measures to prevent the spread of terrorism, including measures to reinforce human rights, prevent ethnic, national or religious discrimination, political exclusion and socio-economic marginalization, as well as measures to address impunity for human rights violations.

In terms of approach, the starting point for counter-terrorism responses, and any related allegations of breach of treaty obligations, is the ICCPR, both in terms of its articulated core human rights principles (Parts I-III) and monitoring mechanisms (Part IV).

Its core principles, explored in subsequent Modules, include:

  • The right to life
  • The prohibition against torture, cruel, inhuman and degrading treatment or punishment
  • The right to liberty and freedom of movement
  • The right to equality before the law
  • The right to presumption of innocence until proven guilty
  • The right to be recognized as a person before the law
  • The right to privacy and protection of that privacy by law
  • The right to legal recourse when rights are violated
  • Freedom of thought, conscience and religion or belief
  • Freedom of opinion and expression
  • Freedom of assembly and association
  • Non-discrimination on any basis, such as race, sex, colour, national origin or language.
 

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