CRIMINAL JUSTICE, SECURITY AND HUMAN RIGHTS

Positive Obligations

Right to Security

Moral and Political Claims

• Lazarus argues that the arguments supporting the moral and political claim to a human right to security do not take sufficient account for the potential for a right to security legitimating coercive overreach.

  • Blackstone views the right to security as a consequence of the social contract in which State gives security to individuals in return for restrictions of their natural liberty.

  • Shue sees the right to security as a meta-right – without it all other rights would be incapable of realization (sees liberty as having smaller role than security) instrumental claim.

  • Fredman draws on capabilities theory to justify the right to security as essential to the exercise of autonomy and self-realisation.

• Lazarus’ view is closer to Locke’s views absolute power as the greatest threat to the security of individuals – THUS power must be constrained by law.

  • If there is a right to security it must be balanced within a hierarchy of rights which places liberty, dignity and equality firmly at its apex (Lazarus).

Vagueness and Coercive Overreach

• As persuasive as the argument for the State’s duty to provide security is the problem is to be able to know where it ends (Ashworth).

• Lazarus is concerned with the vagueness and coercive overreach of the right to security.

  • Consequences flow when we transfer the moral claim to the legal claim (Lazarus) – eg it invites a specific form of hard-edged coercion targeted to specific individuals.

• The coercive function operates through the prism of legality and proportionality States justify activities in pursuit of legitimate aims in light of human rights.

  • THUS human rights aren’t operating as limits on State coercive activity – BUT as a requirement for the activities Shue’s meta-right theory coupled with his thin conception of liberty provides more ammunition to the Security State than he might have anticipated (Lazarus).

    • Cf. German Aviation Case – dignity as a meta-right in German Constitution not as problematic because doesn’t lead to coercive overreach in the same way.

• Lazarus does not believe we should have a meta-right to security security refers to a factual state – it is a feeling, but it doesn’t provide you with a value.

  • Concerned that a meta-right to security will become a right that grounds the right to other things and will automatically engage the most extreme coercive activity in response.

  • Waldron opposed to the idea of meta-rights – risk that focusing on security as a precondition to exercise of all rights might steer us away from meaningful enjoyment of other rights (Lazarus).

  • Lazarus warns that the confusion between the instrumental and non-instrumental value of security risks securitizing other rights.

• THUS – right to security aids in legitimization of coercive activities – has become a rhetorical apparatus.

  • Righting security: human rights language securitization of human rights politicians placing right to security above all other rights (Lazarus).

Vagueness of Positive obligations

• Taking rights seriously means taking duties seriously (Shue) – BUT the concern with positive obligations is their tendency to vagueness and ability to lead to coercive overreach (Lazarus).

  • A clear framework is needed because it is inviting coercive action the law has no clarity and does not legitimate undermining the quality / rule of law question.

• Not all positive obligations lead to coercive overreach porousness of the discussion – and no in principle objection to positive obligations – BUT need to provide clear framework of legal clarity and countervailing rights and interests.

• South African Supreme Court provides potential solution in Rail Commuters Action Group – held that positive obligations cannot be overly-wide or all-encompassing as this would make them overly burdensome and impossible to enforce in practice.

  • Cited the principle of accountability as one of the key principles in determining the scope of positive obligations it doesn’t tell the state what to do (as that would infringe on legislative function of the court) but it does ask them to explain why it is doing what it is doing.

Content of Positive Obligations

• Mavronicola classifies as four types of positive obligations:

  • Framework duties;

  • Operational duties;

  • Investigative obligations; and

  • Duties of redress.

• Building on Mavronicola’s framework – categorised into ex ante prevention duties (framework and operational) and ex post quasi-prevention duties (investigation, prosecution and redress).

  • Overlap between the positive obligations (eg framework and redress both involve judiciary).

Ex Ante Prevention duties

Framework Duties

• General obligation requires States to put in place effective criminal law provisions and enforcement machinery (Ashworth).

Right to Life

• For State actors – legal framework and enforcement mechanism to reflect the absolute necessity test in reducing as far as possible the circumstances in which life is taken (Mavronicola) – eg through stringent regulation of police use of force (McCann; School Siege Case).

• For both State / non-State actors – legal framework and enforcement oriented towards preventing, deterring and redressing wrongful takings of life.

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