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Positive Obligations Notes

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1: POSITIVE OBLIGATIONS (I) INTRODUCTION Lazarus: the right to security Summary: Lazarus argument cautions against viewing the right to security as a meta-right (ie. A right which is seen as a pre-condition to the enjoyment of all other rights); if we are to recognize a right to security, it needs to be meaningful on its own terms and distinctive and specifically articulated in terms of the clear and meaningful obligations and duties it creates, designed to protect essential interests which cannot be protected through already existing rights; if we privilege the right to security, this may detract or distract from other rights; our focus should be on protecting these other rights in their first instance; any right to security needs to be narrow in order to risk it being used to legitimate the coercive overreach of the state using the politics and rhetoric of security; if we don't resist the tendency to use the right to security as a means through which all other human interests are protected, we risk colluding in a subtle reordering of the hierarchy of rights, with rights to liberty, life and dignity being submerged under the apex of the right to security Competing conceptions of security:
??????Hobbes: the primary of peace o According to Hobbes, the transition of humanity from a state of nature to a political community is motivated by the promise of security, which in turn provides conditions in which our lives can become meaningful and culturally and socially expressive o Hobbes gave security such primacy that no one in his society could contest the power of the provider of the peace (the sovereign power) o Instead, in his view, the social contract was a bargain between individuals to cede their liberty to the extent necessary to avoid war o For Hobbes, security was both the rationale for the existence of the state and the justification for unlimited sovereign power over the subjects within it o Although Hobbes knew there would be complaints about the sovereign, Hobbes thought the good of security too valuable to be threatened by civil dispute o It is easy to disagree with Hobbes about what is in our interests o This account is instructive insofar as it highlights the value of security and its connection with political power and his understanding of the way that the good of security allows for human flourishing and social and cultural development ?
BUT the primacy Hobbes affords to security and the power he gives to the sovereign is less persuasive as he fails to appreciate how the state itself can pose a threat to individual security o Hobbes' recognition of the value of security as a prerequisite to the realization of other individual and social goods has echoes in contemporary justifications for security as a meta-right o The immediacy of insecurity and our strength of our fear of harm can lead us to prioritise security at the cost of corroding other social goods o Centuries after Hobbes, liberals generally agree that security has to be balanced with other goods and its attainment at the expense of all liberty and all capacity to challenge political power is a step too far
??????Locke's conception of liberty as security: o We need to craft a conception of security that is good not just for security's sake but for the social arrangements flowing from its pursuit o For Locke, Hobbes' society threatened the security of citizens themselves o Unlike Hobbes' agreement between subjects to cede their liberty to an unrestricted sovereign power, Locke's social contract imposes reciprocal obligations on the state which had to be liberty regarding o For Locke, the point of entering into a political community was precisely to optimize the enjoyment of one's liberty and property

In entering society from the state of nature, men give up certain freedoms but they dos o only with an intention in every one the better to preserve himself his liberty and property o Locke did not share Hobbes' view of the state of nature as a state of war, nor of the benefits of an absolute monarchy to preserve against such a condition o He brought sovereign power down from the pedestal and argued that absolute monarchs are but men and favoured limits on their powers instead, viewing absolute power as the greatest threat to the security of individuals o Where a sovereign power breaches trust, they forfeit power the people put in their hands and the power devolves to the people who have a right to resume their original liberty o If arbitrary power constitutes the greatest threat to the security and preservation of individuals, its antithesis constituted the greatest source of security for Locke ? power needs to be constrained by law and people find security within the limits of law o Since the power of the government is only for the good of society it ought to be exercised by established and promulgated law o Locke's conception of security thus differed greatly from that of Hobbes ? he agreed that security underpins meaningful human existence and constituted the object of civic or political community but his ideal of security was a rich conception embedded in the enjoyment of basic rights to liberty, life and property o It was the law's capacity to protect these rights and the law's limits on sovereign power that kept individuals safe and secure within the limits of the law o This theory forms the foundation of a liberal conception of the right to security grounded in the protection of liberty, life and property
??????Hobbes: peace/bare security is a value so important as to supersede other goods
??????Locke: a rich conception of security is inseparable from the enjoyment of the liberties and property that is naturally ours to enjoy
??????This balance between liberty and security remains a perennial debate in liberal theory today The right to security
? Neither Hobbes or Locke spoke explicitly about a right to security
? The following theories explicitly develop such a right: o Blackstone: the right to personal security
? B identified a right to personal security as the first of the three absolute and natural rights of man - the right of personal security, the right of personal liberty and the right of private property
? He identified these rights as primary rights, belonging to persons merely in a state of nature and the law's primary goals was the enforcement and balancing of those rights
? His right to security included rights to protection from the state as well as rights to resources and so this conception of the right to security went beyond protecting life
? It also protected against risks to health and damage to reputation
? This is the first extensive account of security as a personal and legal right vested in individuals
? But this account offers little guidance on the balance between the absolute rights - these issues of balance are sharper when we introduce the notion of a basic right to security
? Without clear guidance on where to place the right to security in a hierarchy of rights, states may face irreconcilable legal duties o Shue: the basic right to security
? Rights are basic if and when enjoyment of them is essential to the enjoyment of all other rights
? Shue identified security as one of the three basic rights (as well as liberty and subsistence) o

The right to security was therefore of utmost importance ? a meta-right which acts as a precondition to the enjoyment of all other rights (a novel claim)
? Shue makes an instrumental and pre-conditional argument and defines the right to security as the right not to be subjected to murder, torture, mayhem, rape or assault
? He enumerates three duties that correlate to the existence of a basic right to security ? the state's correlative duties to act are a key insight into the scope of this right to security, seeing a smaller role for liberty ?
the enjoyment of rights to every liberty is dependent on the enjoyment of security and subsistence
? His account of liberty as a basic right is a thinner rendition of the kind of liberty Locke viewed as intrinsically valuable
? When viewed from the perspective of the correlative duties flowing from this basic right to security, the right to liberty appears more limited than the right to security
? Notwithstanding these worthy intentions, this article argues that the potential for the state's coercive overreach is shaped by the environment in which the right to security and its duties is articulated ?
states seeking to legitimate extensive security measures may draw on the notion of security as a basic right in more pernicious ways and this account of broad state duties to mitigate threats to personal security coupled with a thin conception of liberty provides more ammunition to proponents of the security state than Shue might have anticipated o Fredman and Powell: the capabilities approach
? Fredman identifies security as an essential prerequisite to the exercise of liberty and argues based on the theory of human agency ? a human being must have certain capabilities protected in order to allow them to actualize their autonomy and freedom of choice and autonomy can only flourish when key social conditions are in place
? Powell also relies on the capabilities approach and argues security is a relational concept which requires a set of referent to give it a meaningful content; developed a theory of personhood to give meaning to the right to security - failing to recognize issues as security issues will only protect a limited part of what is essential to the person
? Fredman and Powell provide justification for the positive and negative aspects to the right to security and emphasise the material provisions required to facilitate the development of capabilities
? This article will explain that there are grounds for caution in deploying the right to security to support other concrete socio economic rights o Ramsay: the right to security and vulnerable autonomy
? Locates the right to security in the individual's subjective need to be free from the fear of crime, which itself is a precondition to the exercise of autonomy; he argues individuals depend on supportive and recognitional social institutions to exercise autonomy and one aspect of the citizen's sense of self esteem is an individual's subjective sense of security
? He derives the novel and questionable legal conclusion that the right to security is enforced by means of a liability for failure to reassure others and this liability implies a positive obligation to be aware of what will cause other insecurity
? This broad ranging theory seeks to provide a coherent normative foundation for the emerging paradigm of prevention within the criminal law Securitising rights:
??????Shue, Fredman, Powell and Ramsay fail to take sufficient account for the potential for the right to security to legitimate the state's coercive overreach
??????Lazarus' view, closer to Locke's, is that the state's political and moral duty to secure individuals must be clearly constrained??????If there is a right to security correlative upon the state's broader duty of security, it must be balanced within a hierarchy of rights which places liberty, dignity and equality firmly at its apex The right to security in law:
?????? Certain consequences flow when we transfer a moral claim to a legal claim
??????Legal claims enagegw a set of social institutions and institutional activities that have potentially far reaching effects
??????Legal claims needs to be intelligible
??????The core legal meaning of the right to security is unsettled despite a textual similarity between some of the relevant provisions
??????In a number of them, the right is closely linked to liberty or freedom or life - eg. Security and liberty nexus in Canada, SA, Hungary constitutions and the UD of HR's and the ECHR
??????In the SA constitution and the northern irish draft bill of HR's the right is expressed as a positive right
??????The SA constitution also uses the right to personal security as an overarching title for a cluster of other rights such as freedom from torture and cruel, inhuman or degrading treatment or punishment and the right to bodily and psychological integrity
??????These legal provisions are subject to varying judicial interpretations, even where they share similar wording
??????EG. Canada - the right to security is understood very broadly whereas in the ECHR, there is no additional role for the term security in A5 beyond that which liberty already protects
??????Where the legal norms themselves are broadly and positively expressed like in SA, the courts have taken a narrow and restrictive view of the specific positive obligations imposed
??????It is evident that the right to security is now seen to protect dignity, equality, liberty, physical and psychological autonomy, freedom from fear and freedom from want ? this extensive range of interests leads to the conclusion that the right to security can be deployed to protect most things we want in life
??????The breadth of the right gives rise to RoL concerns as well as to concerns about the legal legitimation of coercive action by the state - coercive action looks very different when it is case as the exercise of a correlative duty flowing from the right to security The right to security in political rhetoric
??????The right to security in global political rhetoric has been used - indicating that the right has become a popular means to legitimate security measures
??????Politicians are claiming that the right to security is the basic right on which all others are based ? using this premise to argue that negative rights out to be rebalanced in favour of the right to security and to legitimate strong coercive measures
??????This growing tendency to invoke the right to security as a means to extend the state's coercive or military reach = righting security process
??????The broad and inclusive capabilities approach to the right to security and other arguments for the meta-right to security have become a staple of intl institutions and NGOs
??????The problem is that a subtle shift is taking place that may be more pernicious than any well-meaning HR's activist might recognize ? the securitization of rights Securing rights or securitizing rights?
? Viewing the right to security too broadly carries unsettling implications - the problems are various but the most urgent is a subtle transformation of the ordering of human rights = the securitization of rights
??????For Shue - the right to security was a right to secure rights
??????These claims regarding a broad and meta-right to security can be reformulated like this: the right to security gives rise to correlative duties for states to create the conditions in which objective risks of future threats which might reasonable cause subjective feelings of apprehension or insecurity are minimized to a degree that allows the enjoyment of other rights ? the right to security imposes a protective duty on

states to anticipate and mitigate the risks that militate against the enjoyment of all other rights
??????Objections = issues of legal practicality such as indeterminability and redundancy; as well as broader normative concerns such as the argument concerning the weakness of the precondition and the risk of securitization
??????Vagueness: o RoL concerns - the right conceived of in this way is too broad to be workable o We need more clarification for the norm to be legally workable (meta-right idea) o The idea of a meta-right is nothing more than rhetorical flourish o At the least, no plausible reason to introduce a legally redundant norm
??????Waldron: It's possible to exercise rights in conditions of insecurity o Questions whether security is always a necessary precondition to the exercise of all other rights - security is not an all or nothing matter but a matter of more or less so it may be possible to exercise rights in conditions of insecurity o This patchy experience of security doesn't always correlate to the negation of all human rights o Waldron alerts us to the risk that focusing on the precondition to the exercise of all rights might steer us away from the meaningful enjoyment of other risks and we might skew the balance between security and other important rights in damaging ways o The core of the problem: without a specific and distinctive conception of the right to security - one with meaningful content and limits - we don't know what we are balancing but we do not that an amorphous right to security can be used to legitimate measures in political rhetoric that threaten the other rights that security is meant to be securing and so we must urgently delimit the right to security in the political imagination otherwise the other HR's which security is meant to be serving are under threat
??????Overlooks the distinction between foundational rights (value based claim) and preconditions rights (factual claim) o To argue that a right is foundation is more than arguing that rights can be enjoyed only in certain factual circumstances - instead a foundational right provides the broader value from which more specific rights can be derived o When we say someone has the right to dignity and the right not to be tortured, we make a value statement that we believe must be respected for basic human existence to be meaningful o This isn't a question of factual conditions but a question of the values which guide the way we live and treat others o The pre-condition argument of Shue is not doing the same thing - his argument is instrumental and the intrinsic value of security is less important to him than the purpose it serves to the exercise of the other rights o The puzzle then is whether security represents a non-instrumental value in its own terms, as Fredman and Powell claim but Lazarus thinks this view is unsuccessful ? imagine a world where security in achieved but the values of dignity, equality and liberty are absent - life would have little meaning beyond the bare fact of survival and we could arrive at the same place by protecting life o Securitisation simply put is a sociological term used to describe a speech act which results in security becoming the prism through which more and more social issues and categories are viewed o When politicians argue about the right to security, they are in effect performing a securitizing act but they mean something less comforting ? by subsuming liberty into security, we can observe a subtle reordering of the value of liberty relative to security - if it is a subset of the right to security, it becomes less adventurous and liberty risks being reduced to a single dimension
? Perhaps the starkest way to emphasise the dangers of securitization are to promote a right to insecurity - such a right could be used to protect a life of self creation, the value of unknowns and surprises, the importance of improvisation and innovation and of freedom
??????For if we are to live in a society where the right to security becomes the meta right

upon which we legitimate claims to other social values, we will inevitably undermine the freedom we hold dear

Lazarus: positive obligations and criminal justice - duties to protect or coerce Summary: Argument: whilst human rights can be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by the view of rights as a limit on the coercive reach of the criminal law/criminal justice institutions. Her point is that when rights are cast are positive, this results in claims for the extension of the criminal law and the creation of preventative duties or protective policing measures. The main argument is that when dealing with coercive duties on states under positive obligations to protect rights, it is important to limit the potential overreach of such protective duties which have the capacity to encroach upon other rights. When seeking to balance the coercive duties on the state to protect rights, the individual rights (ie. Of perpetrators) need also to be taken into account; in this area where the criminal law is being consistently extended by the recognition of coercive duties, it is important that we have a specific framework in play through which the competing claims can be appropriately balanced; resort to broad-brush analysis of rights is insufficient; appropriate attention needs to be paid to the individual rights at risk of being subsumed under the implementation of coercive duties to protect. We need to clearly acknowledge that the imposition of positive obligations on states can lead to sharply coercive activity by the state and may lead to rhetorical expressions of rights permeating political discourse and being used to legitimate rights incursions, particularly in the context of national security concerns. Continuing to refer to positive obligations as involving protective duties and ignoring the fact that coercive duties are also involved risks overlooking the tensions in play - we cannot lose sight of the coercive sting in the tail of positive duties and we need to deploy frameworks within which countervailing rights claims can be balanced and factored in. Introduction:
??????Ashworth: focus is on the relationship between HR's, criminal law and criminal justice o Ashworth's body of work provides a framework within which to balance respect for HR's and the pursuit of safety and security through the criminal law o This work has focused on unearthing the HR's safeguards aimed at constraining coercive activity through criminal procedure - eg. Habeas corpus and fair trial rights being used as principles to regulate the criminal process as a whole and tame the excesses of political pursuits of security and public protection o In his recent work, Ashworth has acknowledged that while the constraints imposed by the ECHR are significant in relation to criminal procedure they are less significant in relation to sentencing and not extensive at all within the criminal law itself and concludes that the convention leaves gaps in the normative coverage, having nothing to say of major issues o His concern is with the unjustified expansion of the criminal law and he seeks to develop HR's principles to underpin a liberal theory of criminalization based on the principle of harm o Along with Zedner, he is right to be worried about the spread of the preventative justice model of criminal law and the potential for coercive overreach o His use of HR's and the ECHR rights is directed to limiting the preventative measures that have proliferated in recent years and his focus on the limiting powers of rights (eg. Liberty in A5 and fair trial in A6) is at the core of his project

??????Lazarus: o The aim here is to explore the relationship between criminal law, process and HR's from a different perspective, seeking to demonstrate that while HR's may be used to limit the excesses of security and law and order politics, the nature of the relationship between human rights and criminal justice cannot be captured alone by this view of rights as a limit on the coercive reach of the criminal law and institutions o Increasingly, rights are cast as positive, resulting in claims for the extension of the criminal law, the creation of preventative duties or protective policing measures, for the intensification of policing and prosecution of sexual and violent crimes in particular and threats to security or public protection in general o There has been a growing international acceptance of HR's as including positive rights ? this involves a shift from a conception of rights as a limitation on state action to one which now views rights as demands for state action o Rights have combined to create coercive duties on the state to criminalise, prevent, police and prosecute harmful acts ? the suggestion is that HR's may have more to say on the big questions of normative coverage of the criminal law than Ashworth suggests, and as a consequence we need to remain vigilant about the direction of positive duties requiring coercive action from the state o Any account seeking to capture the relationship between criminal law, justice and HR's has to account for ambiguity presented by HR's: HR's are used to limit coercion by the state as well as requiring it (positive duties) o Any account by HR's lawyers of the benefits that come from imposing positive rights and duties on the state in general need to take account of the coercive potential which arises out of the logic of positive rights claims and rhetoric in relation to the criminal law Key areas in which positive rights claims have shaped the criminal law/criminal justice processes:
??????The right to life and positive duties: o Osman:
? ECtHR develops a wide-ranging general duty out of the right to life, setting aside the UK exclusionary rule which prevented the police from being held liable in negligence claims for failing to investigate crime
? States have general duties to individual to protect RTL and must legislate effective criminal law provisions to deter offences backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of these provisions
? Acknowledgement that an impossible or disproportionate burden cannot be placed on authorities as the court has to keep in mind the difficulties involved in policing modern societies, unpredictability of human conduct and operational choices which have to be made with respect to priorities and resources
? The court also notes that it is also relevant to consider that police exercise powers in a way that respects due process and other guarantee which place restraints on the scope of their action, including A5 and A8 rights
? This means there cannot be a requirement on the state to take operational measures with respect to every risk to life and states are only under a specific obligation in certain well-defined circumstances to take proactive measures which arises when authorities 'knew or ought to have known of the existence of a real and immediate risk to the life of the individual and that they failed to take measures within their powers which might have been expected to avoid that risk' (*duty informed by tortious notions of causation and responsibility) o Cases have been brought in Strasbourg as a result on the question of whether

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