Human Rights Act 1998: Are all human rights absolute and inalienable?

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Week 6 Assignment


The Human Rights Act 1998 (HRA) incorporates the majority of rights within the European Convention on Human Rights (ECHR) into the UK legal system. Some rights therein are considered to be absolute and inalienable such as the prohibition on torture, whereas others such as the right to liberty are derogable in times of emergency. Legal and anthological scholars have introduced the dual concepts of cultural relativism and universalism into the human rights debate. While both positions have their strengths in leading to the enhancement of human conditions, cultural relativistic positions have also been used in relation to the subordination of women. Hence, it is revealed that culture itself is never absolute, and when constructed by institutions, such cultural defence is unable to undermine the opposing notion of the universality of human rights.

The Human Rights Act

The introduction of the HRA was intended to receive the ECHR into domestic law. Section 3(1) HRA requires that legislation must be interpreted by national courts as compatible with Convention rights. Section 2 HRA requires that the national judiciary should take account of any relevant Strasbourg jurisprudence. Section 4 enables a court to make a declaration of incompatibility if it is not possible to construe the relevant legislation to harmonise with the Convention.

Some of the Convention rights contained within the HRA are absolute and inalienable. An example of which is Article 3 ECHR (freedom from torture, inhuman and degrading treatment or punishment). Article 3 has been regarded as an 'absolute right' by the European Court on Human Rights (ECtHR),   over a significant length of time and producing an extensive body of case law. It may be thought of as perplexing to talk of an 'absolute' human right within a national human rights system; however, there is also support for the absolute nature of the prohibition on torture within the UN system. Furthermore, the Torture Convention is widely ratified with 159 States Parties and 10 Signatories.

Derogable Rights

There are other rights within the Convention, which are subject to derogation. Article 15 ECHR permits the derogation of a Contracting Party's commitments under the Convention 'in time of war or other public emergency threatening the life of the nation...'.  In the aftermath of the September 11th, 2001 attacks on Washington and New York, the UK government entered a derogation under Article 15 and attempted to derogate from Article 5 ECHR (the right to liberty) in section 23 of the Anti-Terrorism, Crime and Security Act 2001. Derogations can be challenged however, and in A and Others v SSHD [2004], the House of Lords held that the UK's Derogation Order was disproportionate to the level of threat of terrorism to the UK.

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Relativism and Universalism

The rights contained within the ECHR are also available for ratification, by States at an international level within the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Both of these Covenants are widely ratified, giving credence to the argument that the rights contained within are of universal application and apply across cultures. The radical universalist position therefore suggests that culture has no relevance to the validity of moral rights or rules, which are valid across all cultures equally. At the opposite end of the spectrum, the radical cultural relativist ...

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