Human Rights and their universality


Human rights are: indivisible and interdependent. inalienable and universal. (W102, Unit 14, Section 1)

Given that some rights are derogable and others non-derogable, evaluate the accuracy of the above statement.


The universality of human rights (HRs) is represented by the fact that they are recognised in international law. They represent a global and regional system of protection which stems from the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights adopted in 1976, the European Convention on Human Rights and Fundamental Freedoms (ECHR), as well as the monitoring function of the Human Rights Council.[1]

When talking about HRs the natural law view can be taken: that HRs are derived from natural law, and that people enjoy them simply because of being human; on the other hand, if the legal positivist view is taken, rights are derived from legal systems and conferred by positive laws. [2] Furthermore, a differentiation can be made between political rights, socio-economic rights, and collective rights.[3] The ECHR is mostly concerned with political rights or first generation rights, such as the right to life, equality of treatment before the law and freedom from discrimination.[4]

This essay looks into how the British government can limit the political rights of individuals by derogating from its Convention obligations under Article 15, particularly regarding terrorism, and it analyses the consequences of this power conferred on the government and which affects the essence of HRs, its principles of universality, indivisibility and inalienability.

Hohfeld expressed the view that the characteristic of a right is that it places a duty on others and he distinguishes them from privileges which, he argues, have no correlative duty to impose on anyone; in other words they are more linked to the concept of freedoms than to the concept of rights. [5] Dworkin emphasises that it is important to use the word 'rights' carefully; he says: ' when we say someone has a right to do something, we imply that it would be wrong to interfere with his doing it or at least that some special grounds are needed to justify any interference'.[6]

However, although other people's rights must be respected, the rights of one individual do not grant more respect or have more importance than the rights of another; this creates an inherent conflict between rights where different people wish to exercise them in a conflicting way.[7] Furthermore, there is the important relationship of individuals as part of society and the state, a relationship also bound by principles of equality through the rule of law, which encapsulates some of the key rights which should be protected by a code of HRs.[8]

The state is by no means unaccountable; as far back as Entick v Carrington [9] it was established that everyone, including officers of the state had to show legal authority for their actions. The decision in Entick ensured that if the government is to interfere with people's rights, it must be empowered with proper and legitimate authority; apart from that, it restates that the law should possess characteristics consistent with fairness and due process. [10]

However, it is fair to argue that in order to protect its citizens, the state must have tools to do so, and the ECHR allows for the state to make temporary derogations from Convention rights under Article 15 ECHR - contained in Article 14 of the Human Rights Act 1998 (HRA 1998) - in order to deal with emergencies or any other special circumstances. The main concern of the ECHR is the protection of individuals against infringements from the state or its organisations, a vertical effect, rather than a horizontal effect of protecting rights between two individuals.[11] As such, derogation is not without supervision: a declaration must be submitted to the Secretary General of the Council of Europe, who must be kept informed as to when the emergency measures have ceased to operate and the provisions of the Convention are fully executed again.[12]

Although it is not possible to derogate from absolute rights such as the rights to life or freedom from torture, States have derogated mostly from the provisions of Article 5, right to liberty and security and from article 6, right to a fair trial. [13] The British government has used its power to derogate from Convention rights, particularly on issues of terrorism: in 1988, it made a derogation as to detention before charge to deal with terrorism in Northern Ireland; the derogation was lifted in 2001. This derogation involved both, Article 5 and 6 ECHR.[14]

The derogation followed the ruling of the European Court of Human Rights (ECtHR) in Brogan v UK [15] where the Court held that the UK had violated Article 5(3) ECHR by detaining four applicants without having brought them promptly before a judge. They had been arrested, under s 12 of the Prevention of Terrorism Act 1984 which allowed the authorities to detain terrorist suspects on the basis of reasonable suspicion that they had been involved in the committing, preparation or instigation of acts of terrorism connected with Northern Ireland. [16] As a consequence of the derogation, the ECtHR found that the UK had complied with the requirements of the Convention in a subsequent case, Brannigan and McBride v United Kingdom [17] and therefore, there had not been a violation of Article 5.[18]

Such derogation had not been the first one made by the British government. The UK provided the Secretary General of the Council of Europe with six notices of derogation between 1957-1975 bringing to his attention special and judicial powers it had invoked.[19] These derogations were considered in Ireland v UK [20] where the ECtHR gave the UK a wide margin of appreciation and ruled that the derogation of Articles 5 and 6 ECHR had been compatible with the obligations under Article 15. However, it found the UK in breach of Article 3 (freedom from torture).[21]

Ireland was an interstate case brought against the UK by the Republic of Ireland; it concerned the UK obligations under the ECHR in Northern Ireland between 1971 and 1975, where, in order to restrain republican violence, the UK authorised extra-judicial powers to allow the extra-judicial deprivation of liberty. [22] More recently, the British government derogated again from Articles 5 and 6 ECHR in the aftermath of the terrorist attacks on 11 September in New York. It allowed for detention without trial under special circumstances but it was quashed in A v Secretary of State for the Home Department [23] by the House of Lords. [24]

In this case, the claimants were detained under the Anti-Terrorism, Crime and Security Act 2001 (ACTSA); they were all foreign nationals and terrorist suspects, detained in Belmarsh Prison. Although the Special Immigration Appeals Commission recognised that there was a justification for the derogation, it held that the provisions and the way they were enforced was discriminatory, in violation of Article 14 of the Convention which prohibits discrimination related to exercising other Convention rights.[25] The Court of Appeal disagreed, and ruled that the detentions were compatible with the Convention, including Article 14. On appeal in the House of Lords, the majority ruled that indefinite detention without trial or charge was incompatible with the ECHRs and they could not be justified by using the derogation in Article 15.[26]

The ruling in A v Home Secretary of State for the Home Department stresses the important role of the courts in keeping the balance between protecting the right to life of people in Britain and fighting terrorism while still respecting the human rights of others; UK courts must do so, despite the wishes of Parliament if necessary, as they are bound by the Convention to follow the principle of proportionality to determine if the interference is justified in a democratic society in order to attain a legitimate aim. [27]At an international level, the task belongs to the ECtHR, which has established a national margin of appreciation in order to allow national courts to reach their own decisions.[28]

Although ACTSA went beyond any other anti-terrorist legislation and the derogation of Article 5 was controversial, it could be argued that its enactment could be justified as a global response to international terrorism and the cooperation demanded at global level from the UK on combating it;[29] however, the prospect of denying non-nationals the same basic legal protections afforded to British people, is to deny their humanity and to set them apart; to place some rights as more important than others, therefore threatening the indivisibility of Human Rights by picking and choosing among them, ignoring some while insisting on others is a concept that seems daunting.[30]

It could be argued that in order to strengthen the protection of HRs, it is necessary to have a stronger justificatory basis for them by recognising that HRs are based fundamentally on human dignity, and thus strengthening the Hohfeldian view that they place a duty on others, particularly on the state by recognising the nature of HRs law as distinct from other law. [31]

The concept of dignity would also strengthen the natural view, that HRs are possessed by all humans and that they are not merely legal rights given by national or international law but attached to a person regardless of legal systems. However, despite the fact that the Universal Declaration of Human Rights refers to the possession of dignity as the moral basis to which human rights are attached, it omits giving it a definition. An explicit reference to dignity is also lacking from the ECHR and it was remarkably lacking from the judgment in A v Secretary of State: after all, indefinite detention without trial infringed the dignity of those being detained.[32]

The protection of dignity would be a means to recognise the universal an inalienable nature of HRs but it would also need a broad judicial re-characterisation, and a different approach from the ECtHRs regarding principles such as the margin of appreciation; invoking dignity as a justification for HRs does not need a tool of construction giving substantive content to HRs to determine the scope of its application.[33]

The dignity approach is not without difficulties. McCrudden described dignity as a 'place holder', encompassing a wide range of substantive concepts and characteristics which are capable of forming the basis of HRs and he points out that the problem may be that the concept of dignity involves engagement with moral questions on which there is a lot of disagreement.[34] However, the concept of dignity is already being used in equality law through the recognition that human dignity can provide a very valuable underpinning to the concept of equality.[35]

In conclusion, derogation as a tool to control emergency situations is an important and necessary tool given to States in order to protect their citizens. It raises a lot of questions in that sometimes it is hard to justify; for instance, was the derogation made by the British government when enacting ATCSA necessary when the terrorist attacks were in the US rather than in Britain? Was fear of potential attacks sufficient to justify direct interference with HRs by imposing indefinite detention without charge aimed solely at a group of specific people? The Human Rights Committee (HRC) stressed in its General Committee Comment 29[36] that in order to achieve proportionality when justifying the interference with Human Rights, the measures taken must be strictly required by the demands of the situation, that is to say, strictly proportionate to the specific threat in terms of duration, geographical coverage and material scope of the emergency.[37]

The HRC went further to say that no declaration of a state of emergency may be invoked as a justification for a state to engage itself in advocacy of national, religious or racial hatred that would represent incitement to discrimination, hostility or violence.[38] It is questionable whether a state of emergency should be called when it is actually happening or if it should be called purely as a preventive measure. States of emergency have been shown through history to be used as veils for gross abuses of Human Rights.[39]

This brings us back to the point that, ultimately, creating a balance is left in the hands of the courts. It also brings us back to the argument of whether the judicial approach to HRs should be based more on a concept of dignity as the basis for the Convention rights through recognising the connection between the worth of an individual, the possession of dignity and the possession of rights in order to protect the indivisibility, inalienability and universality of human rights.


[1] Richard Stone, Civil Liberties and Human Rights (8th edn, OUP 2010) 15.

[2] Neil Parpworth, Constitutional and Administrative Law (5th edn, OUP 2008) 393.

[3] Stone (n1) 8.

[4] Parpworth (n2) 395.

[5] Stone (n1) 6.

[6] Ronald Dworkin Taking Rights Seriously (Duckworth 1978) 188.

[7] David Hoffman and John Rowe QC, Human Rights in the UK (3rd edn, Pearson 2010) 13,14

[8] Ibid, 19.

[9] Entick v Carrington (1765) 19 St Tr 1029.

[10] Steve Foster, Detention without trial, human rights and the constitutional role of the court (2005) 169 JPN 130.

[11] Stone (n1) 45.

[12] Hoffman (n7) 114.

[13] Jean Allain, Derogation from the European Convention on Human Rights in the light of 'other obligations under international law' (2005) 5 European Human Rights Law Review 480-498.

[14] Hoffman (n7) 115.

[15] Case No. 10/1987/133/184-7 Brogan and Others v UK (1988.

[16] Case No. 10/1987/133/184-7 Brogan and Others v UK (1988) Times 30 November.

[17] Brannigan and McBride v United Kingdom [1993] 17 EHRR 539.

[18] Allain (n13).

[19] Allain (n13) footnote 20.

[20] Ireland v UK (1979-80) 2EHRR 25.

[21] Allain (n13).

[22] Allain (n13).

[23]A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 3 All ER 169.

[24] Stone (n1) 45.

[25] Foster (n10).

[26] Foster (n10).

[27] Hoffman (n7) 119,120.

[28] Hoffman (n7) 54, Eirik Bjorge, Been there, done that: the margin of appreciation and international law (2015) 4(1) Cambridge Journal of International Law 181-190.

[29] Ben Brandon, Terrorism, human rights and the rule of law: 120 years of the UK's legal response to terrorism (2004) December, Criminal Law Review 981- 997.

[30] Ibid.

[31] Benedict Douglas, Undignified rights: the importance of a basis in dignity for the possession of human rights in the United Kingdom (2015) April, Public Law 241-257.

[32] Ibid.

[33] Ibid.

[34] C McCrudden, Human Dignity (2008) European Journal of International Law 655-697.

[35] Sandra Fredman, Discrimination Law (2nd edn, OUP 2011) 227.

[36] Sarah Joseph, Human Rights Committee: General Comment 29 (2002) 2(1) Human Rights Law Review 81-98.

[37] Ibid.

[38] Ibid.

[39] Ibid.