Absolute Rights Quick Notes

Absolute Rights

‘Absolute rights’ is not a term from the Convention itself, but refers to Articles 3, 4(1) and 7.

• They can be characterised as being non-derogable (no external limitation) and unqualified (no internal limitations) – thus, no proportionality or balancing exercise.

Usually undergo a two-stage analysis: (i) definitional, as to whether the right is engaged, and (ii) justification, as to (if yes), was the interference proportionate?

• Absolute can be characterised as meaning a lack of question (ii) – once the right is engaged, that is all that matters.

Many contend that the justification question merely infiltrates the definitional question, and Greer’s phrase ‘formally unqualified rights’ is arguably more appropriate.

• Must accept the ambiguities that underlying the issue, in what it means to have an ‘absolute rights’, what level of abstraction we are willing to take and from where the rights are derived (and therefore the distinction, if any, between the rights in theory and in practice).

1. Article 4 – Slavery, Servitude and Forced or Compulsory Labour

Particularly difficult to consider in an absolute rights model, since it is not absolute in its entirety.

• Only 4(1), referring to slavery and servitude, contains no limitations; forced or compulsory labour in 4(2), meanwhile, has a number of limitations listed in 4(3).

  • The distinction between the two is therefore of vital importance in considering the absolute nature of such rights.

A structured separation between the different aspects of the Article appears to be eroded in practice by the Courts.

• Siliadin v France stated slavery as ‘a genuine right of legal ownership’ – such a high definition is (practically) useless, since ownership of another person is not possible.

• The difficulty is compounded by defining ‘servitude’ with a low threshold – ‘an obligation to provide one’s services that is imposed by the use of coercion’ – CN and V France noted that the difference between servitude and forced or compulsory labour is one of degree.

  • Without a clear dividing line, the distinction (and availability of limitations) becomes inconsistent.

• Further, Rantsev confirmed that human trafficking falls within Article 4 of the Convention, but makes no statement as to whether it comes under 4(1) (and therefore ‘absolute’) or 4(2) (and therefore open to limitations).

A further difficulty is the way in which the jurisprudence almost invariably arises – in the context of positive obligations.

• This challenges the absolute right model, since positive obligations require less of states and are limited in their demands, traditionally subject to the Osman requirements.

  • This is seen in Rantsev, where it was stated that the right ‘must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities’ – why is the burden relevant?

• Unclear to what extent this effects the rights itself – seems to depend on what we consider the content of the right to be and where it comes from.

  • In particular, in what way do we consider the positive right to be part of the wider right/interact with the negative right.

  • Could compare the positive right as merely the manifestation of the ECtHR’s obtuse perspective on the right in only considering the obligation of public bodies, or an American realist perspective could be taken, that it merely is the right.

  • This then considers whether there is, and to what extent, a difference between the right in theory and in practice.

• ECtHR does appear to now acknowledge the distinction between the negative and positive elements of a right, of rights entirely separately, and there may therefore be different requirements – in relation to Article 2, Silih v Slovenia, noted there as being a ‘separate and autonomous duty’.

2. Article 3 – Torture

Could be considered more instructive in assessing the absolute nature of rights in that they do not necessarily arise in a purely positive context.

• While there is no hierarchy as such within the article, as in Article 4, there are arguably attempts by the court to do so.

  • In Ireland v UK, the action was considered as inhuman or...

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