A Security as Individual Right or ‘State Purpose’?48
It has been argued that rights appear practically impervious to social utility arguments. However, even non-utilitarians acknowledge that rights can hardly be absolute in all the circumstances. As Dworkin pointed out, ‘someone who claims that citizens have a right against the Government need not go so far as to say that the State is never justified in overriding that right’.49 He suggested that the State may override a given right when it is necessary to protect the rights of others. Accordingly, for security to be ‘balanceable’ with human rights and civil liberties, it needs to be construed as a kind of individual right that may override liberty rights where they clash. Thus, the question that needs to be asked is: can security constitute an individual right?
The idea of a human right to security has been debated for some time,50 but has received particular attention in the context of anti-terrorism legislation introduced in the aftermath of the 9/11 attacks. Defending Germany’s legislative changes in an interview with German daily newspaper, Munich’s Süddeutsche Zeitung, the former Interior Minister, Otto Schily, claimed that curtailments of liberty were justified and indeed warranted by the government’s obligation to protect the ‘basic right to security’ of German citizens.51 Despite the fact that the basic rights catalogue of the German constitution does not contain any specific right to security, Schily assumed that this right was an ‘implicit component’ of the Basic Law. Schily’s Australian counterpart, Philip Ruddock, has also invoked the right to security as a basis for introducing wide-ranging anti-terrorism laws.52 For the Attorney-General, the existence of this right was hardly questionable: it was also protected by Article 3 of the United Nations Universal Declaration of Human Rights (‘UDHR’) and Article 9 of the United Nations International Covenant on Civil and Political Rights (‘ICCPR’).53 Both Ruddock and Schily have taken the State’s duty to protect to create a positive individual right to security.54
Both explanations are unsatisfactory and unconvincing for factual, as well as systematic and dogmatic reasons. The UDHR, as well as the ICCPR and its corresponding regional instruments, do indeed protect the right to liberty and security of the person.55 It is widely accepted, however, that this right does not relate to some broader right to safety or to any obligation for the State to protect, with positive measures, the physical integrity of its citizens.56 On the contrary, the right to liberty and security of the person concerns confining the power of the State to coerce individuals through arbitrary arrest and detention. As Monica Macovei has pointed out, in the context of the European Convention on Human Rights, the expression ‘liberty and security of the person’ has to be read as a whole. ‘Security of a person’ must be understood in the context of physical liberty;57 it cannot be interpreted as referring to different matters, such as a duty on the State to give someone personal protection from an attack by others, or a right to social security. This interpretation has been confirmed by the jurisprudence of the European Court of Human Rights.58
It is also unconvincing to claim that the State’s duty to protect the citizenry automatically creates a positive individual right to security. Firstly, a review of several constitutions and bills of rights of leading liberal democracies reveals the absence of any specific right to security. Neither the US constitution nor the German Basic Law, for example, contain any right addressing personal security and safety explicitly. Other constitutions such as the Constitution of Austria 1945 (Article 1), Constitution of the Republic of Cyprus 1960 (Appendix D, Part II, Article 11.1), Constitution of the Republic of Estonia 1992 (Article 20), Constitution of the Republic of Hungary 1949 (Article 55), Constitution of the Republic of Latvia 1992 (Article 94), Constitution of Malta 1964 (section 32), Constitution of the Portuguese Republic (1976, (Article 27) and Spanish Constitution (1978, Article 17) recognise a right to security. However, as with the international human rights instruments, these constitutions refer to the right to security in the context of personal liberty and the freedom from arbitrary and oppressive State action. Consequently, the right to security in these constitutions does not relate a right to personal protection or to a positive duty for the State to protect the citizenry from physical harm.
The idea of an individual right to security is problematic for systematic and dogmatic reasons as well. In a liberal democracy, one of the primary purposes of the State is to protect fundamental human rights, such as the right to life, freedom of speech and the right to property. It is the respect for, and the protection of, the rule of law and human rights in their entirety which lead to, and help to maintain, national security. If, however, national security is principally a result of the State respecting, protecting and facilitating all human rights, it would not make sense, from a systematic and dogmatic point of view, to create a separate and exclusive legal title (or good) allowing for an individual claim to security.59 Were such a right to be created a situation would arise in which security policy would become an end in itself, rather than a means of facilitating the realisation of liberty. Security policy would then be independent of, and possible competing with, the State’s duty to respect and protect human rights. This would ultimately lead to an unlimited relativism, wherein security may always trump the competing interest of human rights protection. This, however, is incompatible with the very idea of liberal democracy. It is a defining characteristic of liberal democracy that security policy is normatively bound to the rule of law and to human rights; it is not an end in itself.
The idea that security constitutes an individual right is all the more problematic in the context of the threat of international terrorism. While civil liberties are quite precisely defined, the public good of security is generally rather unspecific. Indeed, normatively speaking, security cannot be positively defined; only negatively defined as the defence against dangers.60 As a consequence, the definition of these dangers requires great specificity. The definition of these dangers, and their individual assignment, might have been possible in previous terrorism crises. In the cases of left-wing terrorism in Europe in the 1970s and 80s, as well in the case of separatist terrorism in Spain and elsewhere, the threats arose from a limited number of individuals operating in a confined and restricted local environment. As far as the threat of international terrorism is concerned, however, this is no longer possible. Dangers can no longer be individualised. They arise from diffuse transnational organisations and networks without any single sponsor or home base. If the dangers arising from terrorism cannot be sufficiently defined and/or individually assigned, then it is imperative to consider security as a ‘state purpose’ rather than as an individual right of legal subjects.
However, if security is to be understood primarily as a ‘state purpose’ rather than as an individual right, then it no longer constitutes a weighable good. Talk of ‘balancing’ security against liberty is thus misleading. Security has become vague in its meaning: as an empowering objective it constitutes a ‘state purpose’, as a legal term it describes a legal good. But, as Oliver Lepsius has pointed out, these two meanings must be strictly separated.61 The positive ‘state purpose’ of guaranteeing security must not be confounded with the negative, legally protected, right of defence against danger. To confuse the two may either lead to security demands the State is not able to fulfil or indicate the failure of the legal system. Lepsius rightly argues that security constitutes an objective that stands above positive law. It must not be used as argumentative tool on the level of positive law. In that case, a situation is created in which positive law can always be trumped by the hyper-positive idea.