The Interests Protected by the Right to Security of Person

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

Securing the Person

To make sense of ‘security’ in any context, we need to be able to identify the thing that is to be secured. It follows that the meaning of the right to security of person depends upon the meaning of ‘the person’. In order to understand the right and the interests it protects, we need to take a view about which aspects of ‘the person’ warrant securing. In Chapter 4, I argue that Amartya Sen and Martha Nussbaum’s capabilities approach has the potential to provide a meaningful framework through which to understand the right to security of person: the right would protect ‘capabilities’.

Rights as Security

Chapter 7 considers issues in applying the analysis of the right to security of person put forward in this book as the basis of a single legal right. It is argued that security of person, substantiated through the capabilities approach (or any other adequate theory of personhood), is too broad to be the subject of a single legal right. This contention raises an important normative question about the role which security of person should play in human rights law. It is accepted that existing legal rights to security of person are rightfully delineated, albeit that these delineations are pragmatic rather than principled. However, drawing on the key learning points that can be drawn from the analysis of security of person in this book, Chapter 7 explores an alternative way to understand the relationship between security of person and human rights law. It is argued that human rights law in general could be seen as one of the key ways by which international and national legal systems seek to further security of person. This approach is referred to as ‘rights as security’.

The Relational Concept of Security

Chapter 3 puts forward an original conceptual analysis of security. It argues that security is a relational concept. To understand any discussion of security, one must hold certain pieces of information, including (a) security for whom (an agent); (b) security of what (a value or interest); (c) security against what (a threat or risk); and (d) security by whom (a provider of protection). It is argued that the concept of security is silent about the level at which it is applied (international, national, group, individual); silent about the interest or value to be secured; silent about the type of threats and risks which are relevant; and silent about who should provide the protection and how. It is therefore context-sensitive. It follows that contextual discussions of security rely upon a combination of political theory and policy decisions to determine which interests or values should be preserved or promoted, against which risks and threats, how, and by whom. This makes security an adaptable concept and helps to explain why it has come to be used in so many different senses and such diverse fields.

Attempts to Define Security

Chapter 2 reviews conceptual discussions and common understandings of security. The first section focuses on early usage of security in legal and political theory in order to identify the antecedents to common understandings of the concept of security. The second section focuses upon attempts to define or redefine security since the late twentieth century. It is argued that a satisfactory conceptual analysis, which applies to all contexts but avoids the temptation to admit that security has many meanings or is some sort of umbrella term, has not been developed. This is despite extensive scholarly discourse in a number of disciplines. Nevertheless, the literature provides tools to fill the gap.

The Legal Right to Security of Person

There is no agreed meaning ascribed to the legal right to security of person, even though it is an internationally recognized human right and a term found in legislation and political dialogue around the world. Most jurisdictions have left the courts to interpret the meaning of the right to security of person. In turn, courts have taken remarkably different approaches to determining which interests should be protected by the right to security of person in their jurisdictional context. Chapter 1 analyses the meaning that courts have given to the right as it appears in the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Canadian Charter of Rights and Freedoms, and the South African Bill of Rights. It is argued that a deeper theoretical analysis is needed to identify the common core of the right.

Negative and Positive Security of Person

In Chapter 6 it is argued that the right to security of person correlates to both negative and positive duties. The right to security of person should not only restrain the state from threatening or putting a rights-holder’s personal interests at risk; it also requires that the state take positive measures to protect the rights-holders’ interests and values against threats and risks, whether or not these emanate from the state. Taking the capabilities approach as the ‘theory of personhood’ underlying the right, it would also require duties of facilitation and provision in situations where the capability to function is non-existent. Finally, Chapter 6 also considers the extent to which rights jurisprudence of the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights successfully reflect the positive features of the right to security of person.

Introduction: The Right to Security of Person

The right to security of person can be found in a plethora of international and domestic human rights instruments and, yet, we know little about it. Attention has turned to this right due to an increased focus upon ‘security’ more generally as a response to an increase in terrorism. A raft of security legislation was passed throughout the world in the early twenty-first century. These measures have been criticized for their impact upon human rights, instigating discussions about the appropriate ‘balance’ to be struck between security and human rights. Within these debates, some have suggested that we must forgo some of our liberties in the name of security—Michael Ignatieff famously questioned ‘whether the era of human rights has come and gone’ and put forward proposals that we accept the ‘lesser evil’ that is limitation of rights....