In September 2014, the United Nations Security Council adopted two resolutions within a few days of each other, both addressing ‘threats to international peace and security’: Resolution 2177 (2014), adopted on 18 September, determined that ‘the unprecedented extent of the Ebola outbreak in Africa constitute[d] a threat to international peace and security’. Resolution 2178 (2014), adopted on 24 September, addressed the threat of the terrorist freedom fighter and reiterated that terrorism constituted a ‘threat to international peace and security’. These resolutions raise questions about the appropriate means to address such threats and how doing so might conflict with human rights obligations. Following Resolution 2178, for example, states have been updating their terrorism legislation, some of which include contentious measures such as administrative bans on leaving or entering the country for suspected jihadis. The controversy over data surveillance, as well as the increase of international human rights instruments and human rights obligations, has renewed the old debate between national security and human rights. In parallel, the resurgence of the Ebola virus and the thousands of deaths attributed to it have again prompted questions about international bodies imposing measures to prevent and protect the population, sometimes at the expense of freedom of movement or other human rights.
A few months before these events, in May 2014, the ‘National Security and Public Health: Exceptions to Human Rights?’ conference was held at the Institute of Advanced Legal Studies in London. The basis for the conference was the following observation: national security and public health are both included in many human rights instruments as ‘exceptions’ to the human rights therein sanctioned, yet they can arguably be considered as human rights themselves. Therefore, participants in the conference asked to what extent the protection of the individual could – or should – be overridden to enable the protection of the general public. Both practice and case law have shown that human rights risk being set aside when they clash with the protection of national security or public health; the conference addressed the protection of human rights when faced with other pressing needs and further asked if the language of balance was the appropriate tool to address the relationship between rights and public safety.
This special issue collates articles from the conference and deals with the complicated relationship between national security and human rights and between public health and human rights. Some of the articles focus on the theoretical level and question the use of concepts such as ‘balance’ and ‘proportionality’, while others examine, in practical terms, national and thematic examples. The articles that form the content of this special issue all address the tension that arises when the concepts of national security and public health are used – and abused – and other rights, such as freedom of speech, procedural freedoms, freedom of movements, etc., are violated as a consequence.
The opening article, ‘International counterterrorism – national security and human rights: conflicts of norms or institutional balance?’ discusses the notion of ‘conflict’ between security and human rights in the context of terrorist sanctions. Feinberg argues that while balancing these two types of norms is the traditional way to include both interests in democratic societies, the focus on the language of ‘conflict’ that counterterrorism favours too often creates a choice between values that should all form the benchmark of counterterrorism. Using the 2008 Kadi case from the European Court of Justice to illustrate the recent trend of judicial involvement in national security matters, Feinberg examines the relationship between United Nations (UN) and European Union (EU) terrorist sanctions as a particular situation where security measures and human rights protection interact. Feinberg contends that the institutional conflict created by the Kadi decision, while contributing to the fragmentation of international law and raising a number of legal concerns, has also had some positive consequences on the sanctions regimes. This is because the case law is, in practice, an example of institutional checks and balances, usually absent from international security and which, in effect, enhances the fairness of sanctions regimes by actively criticising executive measures and requesting the protection of fundamental freedoms from those adopting the measures.
In ‘Protecting “national security” whistleblowers in the Council of Europe: an evaluation of three approaches on how to balance national security with freedom of expression’, Kagiaros focuses on the conflict of values between freedom of information and intelligence sharing and he studies the protection offered to whistleblowers in the intelligence community within the framework of the Council of Europe. In his article, he offers three possible options for such protection by focusing on the concept of public interest: first, an absolute ban on external disclosures for intelligence officials; second, a broad exemption from criminal sanctions or other forms of retaliation when the interest in the information disclosed outweighs national security concerns; and, finally, protection from reprisals provided only for specific disclosures or categories of wrongdoing, which would be exhaustively enumerated in the law. Kagiaros favours the third approach as offering the most reasonable solution to the issue at hand, and as providing concrete protection to whistleblowers while ensuring that security concerns are adequately addressed. Yet, Kagiaros stresses that this approach needs to be supported by strengthened regional standards on whistleblower protection and vigilance on behalf of the judiciary.
The next two articles deal with case studies on the tension between national security and human rights at the national level in the United States (US) and in Israel. This tension often features in these two states, yet, in this special issue, the authors use novel angles to examine it.
In ‘Resisting accountability: transitional justice in the post-9/11 United States’, Jonathan Hafetz examines US national security considerations post 9/11 through the lens of transitional justice in order to assess whether it could pave the way towards accountability for human rights violations. With the release of the Senate Select Committee on Intelligence report about the CIA interrogation programme, these issues have become even more pressing. In his article, Hafetz stresses how ‘resistance to accountability can take root and spread in a stable, advanced democratic society’. He demonstrates how the legal framework on national security was altered to, in effect, limit risks of liability in cases where allegations of torture could be raised. His analysis also suggests that such opposition to any future accountability process can effectively decriminalise categorical norms. Hafetz claims that this kind of reframing in the narrative on torture can happen even in societies with a strong rule-of-law foundation and sophisticated legal system such as the US. For Hafetz, the US experience in the war on terrorism further shows how changes of administration must be accompanied with specific legal measures to address crimes committed by previous administrations in order to promote accountability and to avoid future violations of human rights.
In ‘From the barrier to refugee law: national security's transformation from a balancing right to a background element in the realms of Israeli constitutionalism’, Solon Solomon examines the role of the Israeli Supreme Court in adjudicating cases of national security. Drawing both from cases in which the court considered the legality of governmental actions that infringed upon human rights for the purpose of enhancing national security, and from citizenship and immigration law cases where the national security nexus was less apparent, he observes how Israeli constitutionalism unfolds in its treatment of national security issues: Solomon notes that while the court defined national security as a decisive factor when adjudicating a balance between various human rights, it appeared less willing to award national security an equally significant role in cases where security did not constitute the main legal argument. Solomon concludes that, in doing so, the Israeli Supreme Court aligned its jurisprudence with that of other supreme courts, as well as with the international thematic constitutionalism model, by interpreting the different fields of laws and various provisions under the concept of the right to dignity.
In ‘The use of incapacitating chemical agent (ICA) weapons in law enforcement’, Michael Crowley and Malcolm Dando examine cases where states have resorted to weapons utilising chemical agents outside the context of wars and conflicts. The article surveys contemporary chemical and life science research potentially applicable to the study or development of ICA weapons, and highlights reported possession or use of such weapons by states. The authors also explore contemporary advances in relevant science and technologies, and the potential implications for ICA weapons development. Their empirical analysis consequently provides a summary of the obligations upon states under relevant international law – specifically the Chemical Weapons Convention and applicable regional and international human rights instruments. Crowley and Dando argue that although existing international law certainly constrains and arguably prohibits the development, acquisition and use of ICA weapons for law enforcement, there are areas of contested interpretation. The authors highlight the policy and regulatory lacunae that exist in this area and argue that this situation must be urgently addressed by the international community in order to prevent the potential proliferation and misuse of such weapons.
As the Ebola crisis evidences, there is an urgent need to clarify the links between efforts to protect the health of the public whilst securing human rights. The last three entries to this special volume address these matters from different perspectives and lead to different results and conclusions.
In ‘Human rights and public health: towards a balanced relationship', Toebes discusses the complex relationship between public health, human rights and international law which, according to Toebes, is still ill-understood. Toebes explains that in international law there are many references to the protection of public health contrasting with other interests, including the interests of trade, commerce, intellectual property protection, transportation and warfare. Potentially, in such contexts, the ‘right to health’ as an economic and social right can be used as an additional collective claim to advance the health of the public, thus counterbalancing such interests as international and domestic trade and the conduct of warfare. While this approach has potential, Toebes warns that public health measures may potentially infringe on the civil and political rights of individuals, including their rights to privacy and freedom of movement. The author concludes that an integrated approach to human rights, taking into account both civil and political and economic, social and cultural rights, is the most balanced response to public health concerns.
In ‘Some scepticism on the right to health: the case of the provision of medicines', Niada-Avshalom analyses the duties relating to the provision of medicines envisaged by the right to health included in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Niada-Avshalom closely studies the problem of rationing scarce resources, a necessary exercise considering that health and medicine needs are virtually infinite while resources are limited. Her study leads to the finding that the covenant and its monitoring body, the Committee on Economic, Social and Cultural Rights, do not clearly indicate which interventions are to be prioritised – and therefore do not conclusively answer the problem of limited resources. The ICESCR framework only refers to duties of providing public health as well as interventions that would benefit groups of vulnerable people or the individual's medical needs. Niada-Avshalom concludes that such lack of clarity, and a slight penchant for public health, both contribute to engender legal, moral and political flaws such as discretion for states to determine what action – if any – to take on access to medicines and the tendency to focus on numbers rather than individuals.
In ‘WHO international health regulations and human rights: from allusions to inclusion’ Zidar investigates what limitations and derogations human rights can be subject to during international public health emergencies, when these are declared by the World Health Organisation (WHO) Director-General according to WHO International Health Regulations. Zidar remarks that references to human rights in these regulations are ‘scant and general’, yet they state that their implementation shall be guided by the Charter of the United Nations, which Zidar considers includes the UN corpus juris of human rights. Thus he calls for integrating the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) legal regimes into the legal framework of the regulations. Zidar's approach is constructive in that he argues that the UN international human rights framework includes satisfactory guidance to deal with the limitation and derogation of human rights during public health emergencies. For example, it includes tests that ensure that such limitations and derogations to human rights are ‘in conformity with human rights’, and procedural safeguards. Zidar concludes that the regulations are ‘fully compatible with international human rights standards’, but that these standards need to be included in the training and education of public health officials and, more significantly, that it has to be ensured that these standards will be applied in practice.
Thus, the articles of the special issue reflect particular instances in which human rights are considered as obstacles or challenges to national security and public health and can thereby be side-tracked or, on the contrary, where national security and public health are considered to constitute an integral part of human rights protection and will therefore contribute to its enhancement. For example, Toebes carefully argues that, while conflicts between public health and human rights exist, the right to health can be used for public health claims in order to form a collective right. For Zidar, human rights law includes satisfactory guidance to deal with the limitation and derogation of human rights during public health emergencies but he stresses implementation issues. Kagiaros envisages the various ways in which the concept of public interest could solve the conflict between freedom of speech and national security. For Niada-Avshalom, instead, public health represents utilitarian argument when it is opposed to individual care – and thus it is a distortion of the right to health, which states will use to include and endorse public health. Feinberg argues also that placing national security in conflict with human rights can lead to the abuse of the concept. Instead, she suggests that transposing the language of conflict to institutions will provide the checks and balances that are necessary to combine security interests with the protection of fundamental freedoms. Hafetz also shows the negative consequences of placing national security in conflict with human rights with his tale of the use of torture in the US after 11 September 2001. Hafetz recalls how torture was conducted based on the ends justifying the means. Further warning is provided by Solomon, who argues that national security should not be used in a broad and vague sense.
This special issue focuses on debates that are not new, but it aims to reconsider them in light of recent events. These articles contribute to the analysis of the relationship between national security and human rights and between public health and human rights in very specific contexts. Yet they also aim to theorise this relationship more generally in order to identify and avoid the abuses that can arise in emergency situations. The first five articles stress the crucial need for review, transparency and for fair processes for the protection of the democratic nature of states as the emergence of human rights violations caused in the name of security and the strengthening of executive measures prove how fragile the concept of human rights is. The last three entries emphasize the importance of paying attention to the relation between public health matters and human rights protection at an international level, and whilst filling certain normative gaps they are also evidence of the enormous momentum this topic currently faces.
This special issue is a testimony of the importance and need to re-examine these issues as they, once again, raise new legal questions. It provides many interesting findings on the values that states are ready to protect – and forego – to ensure their safety, which can contribute to the ongoing debate on the protection of human rights.