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RIGHTS AS SECURITY
ii
Rights as Security
The Theoretical Basis of Security of Person
R H O N D A P OW E L L
1
Rights as Security: The Theoretical Basis of Security of Person. First Edition. Rhonda Powell.
© The several contributors 2019. Published 2019 by Oxford University Press.
iv
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Acknowledgements
This book started as an Oxford DPhil project. It therefore represents a period

of growth from an enthusiastic student to a senior lecturer, with all the ups
and downs that this entails. During my doctoral studies I was privileged to
be surrounded by highly engaged and sometimes eccentric students from all
over the world, some of whom are now my closest friends. I was fortunate to
work in a beautiful environment with excellent access to resources. I learned
to take the idiosyncrasies of the ancient institution in my stride. This life-
changing experience was made possible by generous funding from the Oxford
Clarendon Fund, St Hilda’s College, the New Zealand Law Foundation, and
the members of the University of Otago Law Faculty, who wrote reference
after reference to help me pursue my goals.
I am grateful for the continued wisdom and guidance of my primary
supervisor, Professor Denis Galligan and for the collegiality of the students
and Fellows of the Centre for Socio-Legal Studies. I am also grateful for the
supervision provided by Professor John Gardner and Associate Professor Liora
Lazarus, each of whose astute challenges to my ideas led to many improve-
ments. I am grateful to my doctoral examiners Professor Sandra Fredman
and Professor Susan Marks, whose encouragement led me to investigate
publishing my thesis. I spent the final year of my doctoral study at Hughes
Hall, Cambridge, where I enjoyed another beautiful environment, and more
idiosyncrasies. Sarah Squire, President of Hughes Hall, provided invaluable
support and encouragement during that year and beyond.
I would never have guessed that it would take me ten years to complete
what were supposed to be minor revisions. Two international moves, two
changes in career, and two children intervened. Over the past four years, sev-
eral University of Canterbury law students have provided invaluable research
support, generously funded by the School of Law Research Committee.
Professor Neil Boister provided helpful comments on a chapter, at a time
when we barely knew each other. My colleagues Associate Professor Natalie
Baird and Professor Annick Masselot have been my academic backbone—it is
unlikely I would have completed this book without their encouragement and
friendship. Four anonymous referees engaged by Oxford University Press pro-
vided thoughtful and insightful comments. The Academic Law editorial team at
Oxford University Press have exhibited remarkable patience with my tardiness
and have offered professional and constructive guidance throughout.
vi
vi Acknowledgements
My children, Matilda and George, tolerate my never-ending work habits
admirably. I hope that my example helps them to set their horizons widely.
My husband, Michael, has provided the stability needed to sustain my bur-
geoning academic and professional commitments. My mother, Gaylia, has
diligently proofread this piece of work in its entirety more than once and has
offered unquestioning support in all my endeavours.
Thank you all.
Christchurch, New Zealand
4 September 2018
Introduction: The Right to Security of Person
The illusive right to security

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 le-
gislation 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.1 Others have suggested that security and human rights, which protect
our liberties, must be reconciled2 or balanced.3 Yet, others have criticized the
idea of ‘balancing’ security and liberty altogether,4 or put forward alterna-
tive conceptualizations of the relationship between security, citizenship, and
human rights.5
1
M Ignatieff, ‘Is the Human Rights Era Ending?’ New York Times (New York, 5 February 2002).
See also M Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh UP 2004).
2
See R Ashby Wilson, ‘Human Rights in the “War on Terror” ’ in Human Rights in the ‘War on
Terror’ (CUP 2005) 2; L Lazarus and B Goold, ‘Introduction: Security and Human Rights: The
Search for a Language of Reconciliation’ in Security and Human Rights (Hart 2007) 2and the works
cited there.
3
M Atkin, Balancing Liberty and Security: An Ethical Study of US Foreign Intelligence Surveillance
(Rowman & Littlefield 2013); G Treverton, Balancing Security and Liberty in the War on Terror
(Maxwell School of Syracuse University 2004).
4
D Luban, ‘Eight Fallacies about Liberty and Security’ in R Ashby Wilson, Human Rights in the
‘War on Terror’ (n 2); J Waldron, ‘Security and Liberty: The Image of Balance’ in Torture, Terror and
Trade-Offs: Philosophy for the White House (OUP 2010); R Dworkin, ‘Terror and the Attack on Civil
Liberties’ (6 November 2003) New York Rev of Books 37; R Dworkin, ‘The Threat to Patriotism’
(28 February 2002) New York Rev of Books 44.
5
D McGee, Security, Citizenship and Human Rights: Shared Values in Uncertain Times (Palgrave
MacMillan 2010).
2
2 Introduction: The Right to Security of Person

Another dimension to the debate about security and rights is the idea of
a right to security. If there is a right to security, then instead of balancing a
fundamental human right against a policy concern, the balance is between
two human rights. This may make it easier to justify security measures which
infringe human rights. The idea of a right to security has therefore caused
concern amongst human rights advocates, who fear that by requisitioning
the language of rights in order to further security, other human rights may
become ‘securitized’ or their foundations degraded.6
Talk of the right to security often refers to the collective right to security.7
There is no collective right to security in law. Rather, collective security finds
its expression as a reason to limit other rights,8 or to derogate from human
rights instruments.9 Human rights law does recognize an individual legal
right to security of person, which can at times be in conflict with the needs
of collective security.10 By a ‘legal right’, I mean a right that is recognized and
enforceable through human rights law, either in the national or international
context.
The individual legal right to security of person is well established. It can
be traced to the French Declaration of the Rights of Man and of the Citizen,
which affirmed four ‘natural and imprescriptible’ rights: liberty, property,
security, and resistance to oppression.11 The individual right to security
is found in three international human rights instruments, the Universal
Declaration on Human Rights (‘UDHR’),12 the International Convention
on the Elimination of All Forms of Racial Discrimination (‘CERD’),13 and
the International Covenant on Civil and Political Rights (‘ICCPR’).14 It is
6
L Lazarus, ‘Mapping the Right to Security’ in L Lazarus and B Goold (eds), Security and
Human Rights (Hart 2007) 327–8.
7
I Turner, ‘A Positive, Communitarian Right to Security in the Age of Super-Terrorism’ (2017)
13 Democracy and Security 46.
8
See, eg, International Covenant on Civil and Political Rights (adopted 16 December 1966, en-
tered into force 23 March 1976) 999 UNTS 171 (ICCPR), arts 12–13, 18–19, 21–22; International
Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force
3 January 1976) 999 UNTS 3 (ICESCR), art 8; Convention for the Protection of Human Rights
and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR),
arts 8–11.
9
See, eg, ICCPR, art 4; ECHR, art 15.
10
See Al-Jedda v The United Kingdom (2011) 53 EHRR 23, in which a claim for breach of the
right to liberty and security of person in art 5 of the ECHR was successful. The applicant had been
in long-term preventative detention due to his terrorist activities.
11
French Declaration of the Rights of Man and of the Citizen (26 August 1789), art 2.
12
Universal Declaration of Human Rights (adopted 10 December 1948, UNGA Res 217 A(III))
(UDHR), art 9.
13
International Convention on the Elimination of All Forms of Racial Discrimination (adopted
7 March 1966, entered into force 4 January 1969) 660 UNTS 195, art 5.
14
ICCPR, art 9.
The illusive right to security 3
also found in five regional human rights instruments.15 At the national level,
the right to security of person is recognized in a number of bills of rights,
including those of Jamaica,16 Canada,17 Hungary,18 South Africa,19 and the
United States.20
Interestingly, the right to security of person is rarely found on its own.
More often it forms part of the right to ‘life, liberty and security of person’,21
or the right to ‘liberty and security of person’.22 There are two exceptions to
this: CERD and the South African Bill of Rights each specify the right to
security of person independently from the right to liberty of person.23 The
South African Bill of Rights is also unusual in defining the right to security of
person in the text. In most instances it is simply asserted, with interpretation
and definition left to the courts.
The right to security of person is also widely recognized in rights theory.
For example, Henry Shue suggests that it is one of three ‘basic rights’.24 The
right to security of person is mentioned as an example by Joseph Raz when
discussing rights and duties more generally.25 Even John Rawls’ ‘thin theory
of rights’ includes the right to security.26 The reason theorists often use the
right to security of person as an example is likely to be that its existence is un-
controversial. Notably, like legislators, rights theorists tend not to define the
right to security of person. This may suggest that they too assume its meaning
to be uncontroversial.
In fact, despite the prevalence of the right to security of person, over the
past decade or so questions have arisen as to what it means in law, what
15
ECHR, art 5; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, en-
tered into force 21 October 1986) 1520 UNTS 217 (African Charter), art 6; American Convention
on Human Rights (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123
(American Convention), art 7; Charter of Fundamental Rights of the European Union, 2000/C
364/1 (EU Charter), art 6; League of Arab States, Revised Arab Charter on Human Rights (adopted
22 May 2004, entered into force 15 March 2008), art 14.
16
The Jamaica (Constitution) Order in Council 1962, s 13(a).
17
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), c11, Part 1 (Canadian
Charter of Rights and Freedoms) (Canadian Charter), s 7.
18
Constitution of India (as amended) 1949, art 55(1).
19
Constitution of the Republic of South Africa, 1996, ch 2 (SA Bill of Rights), s 12.
20
Constitution of the United States (as amended), Amendment IV.
21
UDHR, art 3; ICCPR, art 9.
22
ECHR, art 5; EU Charter, art 6; Canadian Charter, s 7; African Charter, art 6; American
Convention, art 7; Revised Arab Charter on Human Rights, art 14.
23
SA Bill of Rights, s 12; ICESCR, art 5(b).
24
H Shue, Basic Rights: Subsistence, Affluence, and US Foreign Policy (2nd edn, Princeton
UP 1996).
25
J Raz, The Morality of Freedom (Clarendon 1986) 170–1.
26
J Rawls, ‘The Law of Peoples’ in S Shute and S Hurley (eds), On Human Rights: The Oxford
Amnesty Lectures 1993 (Basic Books 1993) 68.
4

distinguishes it from other rights, and how it should be understood.27
Curiously, despite the right’s long history, these questions have not been ad-
equately addressed, with scholars proposing different understandings of what
the right to security of person means. For example, Sandra Fredman enunci-
ates the ‘positive right to security’ which acts as a ‘platform for the exercise of
real freedom and agency’,28 and extends to ‘the duty to provide for basic needs
of individuals’.29 By contrast, Liora Lazarus argues for ‘the narrowest possible
conception of the notion of security’ and warns against a right which be-
comes ‘the overarching legitimating principle and rhetorical tool upon which
we ground arguments for all other desirable human goods’.30 Meanwhile, Ian
Turner advocates for the recognition of a communitarian right to security.31
The difference between these perspectives reveals the need for an inquiry
about the true meaning of the right to security of person. That is the issue
addressed by this book.
Inquiring into the right to security

The obvious starting point for the inquiry is the international jurisprudence
on the right to security of person. However, the right to security of person
turns out to mean something quite different in different jurisdictions. For ex-
ample, the approach taken under the European Convention for the Protection
of Human Rights and Fundamental Freedoms (‘ECHR’) effectively amounts
to procedural protections against arbitrary detention.32 By contrast, the ap-
proach taken under the Canadian Charter of Rights and Freedoms (‘Canadian
Charter’) focuses upon the idea of ‘physical and psychological integrity’.33
While some of the differences may be accounted for by varying jurisdictional
attitudes to the role of courts in protecting rights in general, the inconsist-
ency may also stem from a combination of the undefined nature of this right
and its lack of theoretical underpinning. This book’s analysis of the meaning
of the right to security of person therefore extends beyond the law to theory.
In order to construct a coherent meaning for the right to security of person,
the book probes deeper into the terms which establish the right: ‘security’ and
‘the person’. It is argued that security is by its nature both a negative and a
27
Lazarus (n 6) 326.
28
S Fredman, ‘The Positive Right to Security’ in Lazarus and Goold, Security and Human Rights
(n 2) 307.
29
ibid, 308. 30
Lazarus (n 6) 326. 31
Turner (n 7).
32
East African Asians (British Protected Persons) v United Kingdom (1981) 3 EHRR 76
(Commission Decision).
33
Rodriguez v British Columbia (AG) [1993] 3 SCR 519 (CanLII).
Inquiring into the right to security 5
positive concept and that therefore the right to security of person should
ground both negative and positive duties. It is argued further that security
is a ‘relational’ and not a ‘substantive’ concept. This means that security pro-
vides a structure for understanding the relation between other things but that
it does not itself tell us which interests are protected by the right to security
of person. The ‘substance’ of the right comes from an analysis of person-
hood. The book draws upon the notion of personhood put forward as part of
Martha Nussbaum and Amartya Sen’s ‘capabilities approach’, which is used
for measuring human well-being.34 The capabilities approach suggests that
the correct focus for policy-making is upon what each individual is able to do
and to be in relation to certain universally valuable ‘functionings’. Nussbaum
provides a list of core capabilities, a minimum of which should be guaranteed
to all on the basis of human dignity.35 The capabilities approach can be ap-
plied to construct a substantive right to security of person by treating the core
capabilities as the interests to be protected by the right.36
This new and original theoretical development of security of person is then
applied to the legal context in order to illustrate the variety of interests the
right to security of person covers and the types of duties it imposes. For in-
stance, it extends to things like food, minimum welfare, and education, as
well as protection against violence and the opportunity to exercise practical
reason. The right to security of person imposes negative and positive duties
on states to protect, promote, and fulfil a wide range of important personal
interests.
The analysis demonstrates that the right to security of person is very broad.
This helps explain why, when it forms the basis of a legal right, different jur-
isdictions are able to legitimately give such different meanings to the right.
Each jurisdiction is protecting some aspects of personhood, but not all: se-
lection and prioritization has taken place in order to create a legal right that
has clear boundaries. It is argued that those boundaries are pragmatic and
not principled. Existing legal rights to security of person do not protect the
full scope of the right. However, it is not argued that existing legal rights to
security of person should be given meanings in line with the true breadth of
the right on a theoretical level.
Instead, an alternative and preferable way of understanding the relation-
ship between security of person and human rights is put forward, drawing
once again upon the capabilities approach which this time plays a different
34
M Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Belknap Press
2006); A Sen, Development as Freedom (OUP 1999).
35
Nussbaum (n 34) 76–8.
36
This is a variation on the approach taken by Fredman (n 28).
6

role—to determine what it takes to secure a right. It is suggested that ra-
ther than attempting to confine a broad concept into a narrow form, human
rights law as a whole should be seen as a mechanism to secure the person. This
new approach is called ‘rights as security’.
Throughout this book, examples are drawn from three jurisdictions: the
ECHR, the Canadian Charter, and the South African Bill of Rights. Whilst
it is recognized that there may be very good historical and contextual reasons
why legal rights are defined in particular ways, the book is not concerned
with why each particular jurisdiction took the approach it did. That question
would require a more historical and contextual inquiry, sensitive to the role
of the courts and the attitude towards rights in the particular jurisdiction.
Neither is the book concerned with the differences in legal context between
the three jurisdictions or whether one jurisdiction can learn from another
in its interpretation of the right. The book analyses the problem from the
other direction—focusing on the nature of the universal right, which should
ground its legal expressions. It is assumed that legal rights should share the
core features of the universal human rights on which they are based.
The three jurisdictions were chosen for two reasons. First, these juris-
dictions have created sufficient jurisprudence to provide a detailed under-
standing of their approach to the right to security of person. By contrast, in
many other jurisdictions, little is said on the right to security of person, albeit
that it appears in the text of the relevant instrument.37 Secondly, these juris-
dictions exhibit the need for theoretical analysis particularly well because they
take very different approaches to the right. Case law is used in three ways: to
describe the approaches taken in each jurisdiction; to show why theoretical
analysis may help untangle the meaning of the right to security of person; and
to exemplify the theoretical points developed.
Outline of chapters
Chapter 1 investigates the approach taken to the right to security of person in
law. It focuses on the ECHR, the Canadian Charter, and the South African
Bill of Rights. It is revealed that the right to security of person is portrayed
37
For instance, to my knowledge the United Nations Human Rights Committee has only con-
sidered the right to security of person (as opposed to the right to liberty of person) on one occa-
sion: William Eduardo Delgado Páez v Colombia CCPR/C/39/D/195/1985 23 August 1990 (HRC).
The Office of the United Nations High Commission on Human Rights (OHCHR) and the Joint
United Nations Programme on HIV/AIDS (UNAIDS) have interpreted art 9 to extend to com-
pulsory AIDS testing: OHCHR and UNAIDS, International Guidelines on HIV/AIDS and Human
Rights: 2006 Consolidated Version (Geneva 2006) 95–6.
Outline of chapters 7
inconsistently between the jurisdictions. The legal analysis shows a lack of
agreement about the meaning of the right to security of person. While it gives
plenty of food for thought, descriptive legal analysis is not able to provide a
common understanding of the right. It is therefore necessary to take a more
theoretical approach.
The book then turns to conceptual analysis. This is a technique of analyt-
ical philosophy in which a concept or its constituent parts are broken down,
in order to gain a better understanding of the philosophical issues which
apply to the concept. As Thomas Nagel describes, conceptual analysis is con-
cerned ‘with the concepts and methods that enable us to describe and think
about what we can observe’.38 The conceptual method has been employed by
analytical legal philosophers, most famously by HLA Hart in analysing the
concept of law.39
Chapter 2 considers whether the meaning of the right to security of person
can be understood through a conceptual analysis of security. It discusses lit-
erature, drawn primarily from the discipline of international relations,40 but
also from criminology,41 which attempts to define the concept of security. It
is argued that no previous attempt to define security is sufficiently context-
neutral that it can be applied to the right to security of person.
Chapter 3 puts forward a new analysis of the concept of security, relying
on the strengths and improving on the weaknesses of the existing accounts.
It is argued that security describes a fourfold relation between other concepts
and that in order to understand its meaning in any particular context, one
must identify four factors: security for whom (an agent or patient), security of
what (an interest or value), security from what (a risk or threat), and security
by whom (a protector). As a relational concept, security relies upon both pol-
itical philosophy and political discourse to determine each of these variables
in any particular context. Importantly, this means that security need not be
restricted to preserving that which we have but that it can extend to putting
people in a ‘secure’ position for the future.
Chapter 3 also argues that security is both intrinsically negative and in-
trinsically positive: one cannot be secure in the absence of protection even if
one faces no threat. It follows that the legal right to security of person should
incorporate both negative and positive duties. It is concluded that whilst the
relational analysis of security establishes the type of duties required by the
38
T Nagel, ‘The Central Questions (Review of “A Life of HLA Hart: The Nightmare and the
Noble Dream” by Nicola Lacey)’ in London Rev of Books (London, 3 February 2005) 12, 13.
39
H Hart, The Concept of Law (Clarendon 1979).
40
K Booth, Theory of World Security (CUP 2007); B Buzan, O Waever, and J de Wilde, Security: A
New Framework for Analysis (Lynne Rienner 1998).
41
I Loader and N Walker, Civilizing Security (CUP 2007).
8

right, a theory of personhood is needed in order to identify the interests on
which the right to security of person is based.
Chapter 4 focuses on ‘the person’. Unlike security, there is a wide analyt-
ical literature on persons and personhood. Thus, rather than conduct a new
conceptual analysis, an existing theory, the capabilities approach,42 is applied.
It is argued that the capabilities approach, which is based on an Aristotelian
view of personhood, could be used to identify the most important interests of
the person. In this way, the capabilities approach can substantiate the idea of
‘security of person’: in the context of a right to security of person, Nussbaum’s
list of ‘capabilities’ can be used to identify the interests to be protected.43
Chapters 5 and 6 apply the theoretical analysis to the legal context.
Chapter 5 provides examples of the variety of interests which should be pro-
tected by the right to security of person. Illustrations are drawn primarily
from rights discourse in Europe, Canada, and South Africa. The right to se-
curity of person should protect a wide range of interests, cutting across the
distinction between civil and political rights and socio-economic rights. For
example, it should cover both the right to political participation and the right
to food. However, it is also noted that, on this interpretation, the right to se-
curity of person overlaps with, and subsumes, a number of other legal rights.
Chapter 6 discusses the types of duties which are imposed by the right to
security of person. Drawing on the conceptual analysis of security as well as
human rights theory,44 it is argued that the right to security of person correl-
ates to duties of restraint, protection, and fulfilment. The chapter then returns
to the three jurisdictions which are analysed for their ability to reflect both
the negative and positive nature of security of person. In particular, Canada
is criticized for its failure to recognize positive duties. Both the ECHR and
South Africa recognize positive duties, which stem both from their general
approaches to rights and from their interpretation of the right to security of
person.
Chapter 7 examines the key implications of recognizing the full breadth
of the right to security of person. This breadth is not solely a feature of the
capabilities approach— any theory of personhood would be equally all-
encompassing. However, once it is recognized that the right to security of
person is necessarily so broad, it is clear that any legal recognition of the right
cannot take on its full meaning. It would be inappropriate and counterpro-
ductive to protect such a wide range of interests within one legal right, par-
ticularly given that many of the interests are already protected in other ways
Nussbaum (n 34); Sen (n 34).

42 43
Nussbaum (n 34) 76–8.
S Fredman, Human Rights Transformed: Positive Rights and Positive Duties (OUP 2008); Shue
44
(n 24).
Outline of chapters 9
through human rights law. Rather than expanding the meaning of existing
legal rights to security of person, it may be preferable to focus on creating
further specific rights to protect any important personal interests that are
not already protected by human rights law. In relation to important personal
interests that are already included but that are not afforded the full positive
protection that they deserve, human rights law should be strengthened. This
is particularly necessary in the area of socio-economic rights.
Finally, Chapter 7 proposes a new framework with which to view the rela-
tionship between security of person and human rights: ‘rights as security’. It
is proposed that human rights law as a whole can be seen as a way to secure
the person, with individual rights protecting individual personal interests.
The ‘rights-as-security’ approach enables security of person to take on its full
meaning in the context of human rights law. The capabilities approach could
still serve as a tool to identify what it takes to fulfil a right, thus defining what
it means to secure the person.
10
1
The Legal Right to Security of Person
Introduction
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 jurisdic-
tions have left the courts to interpret the meaning of the right to security of
person. Security takes on different meanings according to context and ac-
cordingly, courts in different jurisdictions have taken different approaches to
determining which interests should be protected by the right to security of
person. This can be demonstrated by analysing 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 (ECHR),1 the Canadian
Charter of Rights and Freedoms (Canadian Charter),2 and the South African
Bill of Rights.3 As noted in the introduction, these jurisdictions are explored
because they have a developed body of jurisprudence about the right to se-
curity of person.
Under the ECHR, the right to security of person amounts to proced-
ural safeguards against arbitrary detention. In developing the case law, the
European Court of Human Rights (the ‘Strasbourg Court’) has considered
whether the right has any broader relevance but has decided on a limited
definition that restricts ‘security of person’ to situations in which somebody’s
liberty is restricted (eg when somebody is arrested, detained, or at risk of im-
prisonment). In comparison, the approach taken by the Canadian Supreme
Court in its interpretation of the Canadian Charter is broader. In that con-
text, the right to security extends to bodily and psychological integrity and in
some instances, autonomy. Finally, in South Africa, the only jurisdiction of
1
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights, as amended) (ECHR).
2
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), c11, Part 1 (Canadian
Charter of Rights and Freedoms) (Canadian Charter).
3
Constitution of the Republic of South Africa, 1996, ch 2 (SA Bill of Rights).
The right to security in the European Convention 11
the three to provide a legislative definition of the right to security of person,
the cases focus primarily upon violence to the person. Rather than providing
a structured understanding of the right to security, the analysis in Chapter 1
demonstrates a lack of cohesiveness internationally, particularly in relation to
the relationship between liberty of person and security of person. As Lazarus
has noted, there is ‘a curious schizophrenia between a view of security as in-
distinct from and submerged within liberty, and a clearly autonomous notion
of security as inclusive of liberty and many other rights’.4
It is not normally seen as problematic that courts in different jurisdictions
take different approaches to resolving similar legal problems. International,
regional, and domestic rights instruments use different wording and have dif-
ferent internal structures. Varying local legal, social, and political norms result
in great diversity in legal systems and legal solutions worldwide. International
and regional courts work within a constrained political context. Differences
between jurisdictions can be therefore explained on the basis of textual and
contextual differences. However, arguably human rights protection in dif-
ferent jurisdictions should be based on an element of commonality because
legal rights are built on a common understanding of the human rights on
which they are based. By their very nature, human rights are universally ap-
plicable5 and we should therefore expect that in interpreting human rights
law in domestic contexts, relevant international norms will be considered.
Indeed, in some instances, judges are explicitly directed to do so by the legis-
lature.6 That does not mean that human rights law is necessarily a coherent
system as a whole, but that in the various contexts in which any one human
right is protected any local variation should be based on the common uni-
versal core. In terms of the right to security of person, this is not the case.
The right to security in the European Convention—

arbitrary interference with liberty
The Strasbourg Court and the earlier European Commission of Human
Rights (‘the Commission’) have limited the context in which the right to
4
L Lazarus, ‘Mapping the Right to Security’ in L Lazarus and B Goold (eds), Security and
Human Rights (Hart 2007) 333.
5
See the reference to the ‘equal and inalienable rights of all members of the human family’ in the
Preamble to the Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res
217 A(III) (UDHR). See further Chapter 7, 154.
6
See, eg, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(2); SA Bill of
Rights s 39(1); Human Rights Act 1998 (UK) s 2.
12
12 The Legal Right to Security of Person

security applies to deprivations of physical liberty. This is despite the fact that
the parallel right in the Universal Declaration on Human Rights (UDHR),7
which was drafted during a similar period and which adopts similar phrasing,
was clearly intended to include matters such as personal integrity,8 and that
section 7 of the Canadian Charter has also been given a broader meaning.9
Article 5(1) of the ECHR reads:
Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following cases and in accord-
ance with a procedure prescribed by law . . .
Article 5(2)–5(5) provides procedural protections for persons arrested or
detained.
Under the ECHR, the right has no relevance outside detention scenarios
(including imprisonment and compulsory detention for mental health treat-
ment), no application that is separate from the right to liberty and no in-
dependent content of its own. However, states are required to take positive
measures to protect a person’s liberty under Article 5(2)–5(5). It is argued
here that these positive measures amount to ‘security’ under the ECHR.
Unsurprisingly, given that security has not been given an independent sub-
stantive meaning in ECHR jurisprudence, there is very little academic com-
mentary on the right to security under the ECHR.10
It is interesting to see how the Commission first justified its limitation
of the meaning of the right to security, which in other jurisdictions is seen
as an independent right.11 The Commission stated explicitly that this inter-
pretation by no means makes the right to security meaningless.12 Rather, the
right to security is important to secure freedom from arbitrary detention by
requiring procedural safeguards such as being informed of the cause of deten-
tion,13 being brought promptly before a judge,14 a right to challenge the de-
tention,15 and a right to compensation if the right is breached.16 The doctrine
7
UDHR, art 3.
8
J Morsink, ‘World War II as a Catalyst’ in The Universal Declaration of Human Rights: Origins,
Drafting, and Intent (U of Philadelphia Press 1999) 40.
9
Rodriguez v British Columbia (AG) [1993] 3 SCR 519 (CanLII).
10
See Lazarus (n 4) and R Powell, ‘The Right to Security of Person in European Court of Human
Rights Jurisprudence’ (2007) 6 EHRLR 649.
11
See the discussions of Canada and South Africa below.
12
East African Asians (British Protected Persons) v United Kingdom (1981) 3 EHRR 76
(Commission Decision) [222].
13
ECHR, art 5(2). 14
ECHR, art 5(3).
15
ECHR, art 5(4); see MH v United Kingdom (2014) 58 EHRR 35.
16
ECHR, art 5(5).
of positive obligations was in its early stages at that point in time.17 However,
with the benefit of hindsight it can be seen that the same procedural safe-
guards could stem from the right to liberty. It is difficult to see what ‘security’
adds to Article 5.
The cases about the right to security in ECHR jurisprudence can be div-
ided into four sets. Each new set reflects a subtle change in interpretation of
the right over time. The first set, in the 1970s, made it clear that the right
to security of person had no meaning outside the context of deprivations of
liberty. In the second set, in the late 1990s, the language changed slightly to
recognize the potential for security to have an independent meaning from
liberty. The third set, in the early twenty-first century, signalled movement
towards recognizing security as a separate right from liberty, although it did
not actually take this step. The fourth set, during a similar time period, took
a different approach by examining the issues under other ECHR provisions,
despite the claims for breach of right to security of person under Article
5. This same period saw an increase in usage of the rhetoric of security by
the Strasbourg Court. The overall picture is of increasing claims related to
security of person and increasing use of security language by the court, but a
failure to move from the position outlined in the first right to security chal-
lenge. That is, security of person, within the meaning of Article 5, is restricted
to the context of liberty deprivation.
It is important not to overestimate these variations, as the Strasbourg Court
steadfastly limits security to procedural protections against arbitrary deten-
tion. Nevertheless, the subtle changes are illuminating because Strasbourg
judgments tend to follow standard forms such that the reasoning in one judg-
ment may be repeated verbatim in another.18 It is therefore likely that changes
in the standard wording are deliberate. If these subtle changes are not delib-
erate, then the rhetoric of security may be influencing the Strasbourg Court
to find new ways to protect a broader sense of security of person within the
framework of the ECHR.
The first set of cases firmly establishes that the right to security in Article 5
is only relevant in the context of deprivations of liberty. In East African Asians
v United Kingdom,19 United Kingdom passport holders of Asian origin who
17
The doctrine was first recognized in the Case “Relating to Certain Aspects of the Laws on the Use
of Languages in Education in Belgium” (No 2) (1968) 1 EHRR 252. See further M Mowbray, The
Development of Positive Obligations under the European Convention on Human Rights by the European
Court of Human Rights (Hart 2004); D Xenos, The Positive Obligations of the State under the European
Convention of Human Rights (Routledge 2012).
18
This is one way the Strasbourg Court achieves consistency. It may also be the result of the pro-
cedures of the Court or be due to the time spent negotiating wording between judges of different
jurisdictions.
19
East African Asians (n 12).
14

had been living in East African countries were denied permission to immi-
grate to the United Kingdom. The claimants argued that this breached their
right to security in Article 5. In rejecting the claim, the Commission stated
that:20
the protection of ‘security’ is in this context concerned with arbitrary interference,
by a public authority, with an individual’s personal ‘liberty’. . . . any decision taken
within the sphere of Article 5 must, in order to safeguard the individual’s right to
‘security of person’ conform to the procedural as well as the substantive requirements
laid down by an already existing law.
The Commission clarified that the right to security has no independent con-
tent from the right to liberty—in effect the right to liberty and the right to
security are two aspects of the same right, liberty being the substantive aspect
and security the means of protection. According to the Commission, this
interpretation is supported by both the legislative context and the right’s his-
torical development.21 This sort of reference to original intent is unusual in
Strasbourg judgments,22 the norm being to focus on the status of the ECHR
as a living document that responds to the changing needs of the day.23
The East African Asians case set the scene for the future development of
Article 5. In X v United Kingdom,24 the claimant had taken part in a protest
against South African apartheid at a Springboks rugby match in the United
Kingdom and had been photographed by a police photographer without her
consent. The photographs were retained by the police and the applicant was
informed that if she ‘caused any further trouble’ at Springboks matches she
would be charged with an offence. The claimant argued that the retention of
the photos by the police constituted a breach of her right to security as the po-
lice could have used them against her in the future. The Commission stated
that ‘ . . . “security of person” means physical security, that is freedom from
arrest and detention’.25 Thus in the case at hand, the photographs retained
by the police could not be said to affect the claimant’s security of person.
20
ibid [222].
21
‘This interpretation is confirmed both by the text of Article 5 and by the preparatory work of
the Convention, which show that the protection against arbitrary arrest and detention was one of
the principal considerations of the drafters of this treaty’, East African Asians (n 12) [222]. A similar
argument was not persuasive in the United Nations Human Rights Committee decision of William
Eduardo Delgado Páez v Colombia CCPR/C/39/D/195/1985 23 August 1990 (HRC) [5.5].
22
Golder v United Kingdom (1979–1980) 1 EHRR 524 [36]; Lawless v Ireland (2) (1979–1980)
1 EHRR 15 [14].
23
Tyrer v United Kingdom (1979–1980) 2 EHRR 1 [31]; Loizidou v Turkey (1995) 20 EHRR
99 ECtHR [71]; see also the discussion in C Ovey and R White, Jacobs and White: The European
Convention on Human Rights (4th edn, OUP 2006) 40–1.
24
X v United Kingdom (1973) 45 CD 90. 25
ibid [2]‌.
Similarly, in A v Federal Republic of Germany,26 the applicants were unable to
claim for property confiscated from them and their parents under the Nazi
regime through the established compensation scheme for mere procedural
reasons. The applicants argued that this breached their right to security in
Article 5 but the Commission held that as the claim was not related to arbi-
trary detention, Article 5 did not apply.27
In Menteş v Turkey28 the claimants were forced to evacuate their homes due
to clashes between the state and a Kurdish terrorist organization and their
claimants’ houses were demolished by security forces in the fighting. They
argued that this constituted a breach of the right to security. The Strasbourg
Court held that the notion of security had not been given an independent
interpretation and that ‘[t]‌ he insecurity of their personal circumstances
arising from the loss of their homes did not fall within the notion of “security
of person” for the purpose of Article 5 § 1 of the Convention’.29 A violation
of Article 8 was found. There seems little doubt, as this first set of cases estab-
lishes, that Article 5 is not relevant outside of detention scenarios.
The second identifiable set of cases illustrates movement on the potential
for ‘security’ to have an independent meaning from liberty. The second set
of cases all relate to ‘disappearances’, starting with Kurt v Turkey in 1998.30
In Kurt, the claimant’s son had been arrested by state authorities and had
not been seen since. Requests for information and investigation as to his
whereabouts by the family were unsuccessful and the state denied all know-
ledge. The claimant suggested that this breached her son’s right to security of
person.31 In this case the Strasbourg Court used a new ‘standard phrasing’,
appropriate for cases of disappearance:32
any deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping
with the very purpose of Article 5, namely to protect the individual from arbitrari-
ness . . . Having assumed control over that individual it is incumbent on the author-
ities to account for his or her whereabouts. . . . Article 5 must be seen as requiring the
authorities to take effective measures to safeguard against the risk of disappearance
and to conduct a prompt effective investigation into an arguable claim that a person
has been taken into custody and has not been seen since.
26
A v Federal Republic of Germany (1976) 7 DR 8. 27
ibid [28].
28
Menteş v Turkey (1997) 26 EHRR 595. See also Selcuk and Asker v Turkey (1998) 26 EHRR 477.
29
Menteş (n 28) [79]. 30
Kurt v Turkey (1999) 27 EHRR 373.
31
Applicants before the ECHR must be a ‘victim of a violation’: art 25(1). The Commission will
also accept complaints by representatives of clearly definable people. In Kurt (n 30), the applicant
claimed on behalf of herself and her son.
32
ibid [122]–[123].
16

By stating that ‘what is at stake is both the protection of the physical liberty
of individuals as well as their personal security’,33 the Strasbourg Court rec-
ognized that security could have meaning independently from liberty, which
was a new move, and one which has been reiterated in other contexts, such
as access to judicial scrutiny of mental health detention.34 By contrast, in the
earlier cases security was seen as an aspect of liberty. However, despite the ap-
parent recognition of separate rights to security and liberty, personal security
was still seen to be only relevant in situations of detention. Kurt has been
widely cited and continues to be one of the most important authorities on
cases of disappearance.35
The idea of the purpose of Article 5 being to safeguard individuals from
arbitrariness has been picked up recently in the context of ‘fair play’ by the
state. In Nikolaishvili v Georgia, the applicant was sought as a witness in re-
lation to a criminal case and when he presented himself, he was arrested in
relation to an unrelated matter. He argued that this engaged Article 5 because
this was an abuse of state power.36 The Strasbourg Court emphasized that
Article 5 encompasses a single right and that security guarantees against the
arbitrary interference by public authorities with personal liberty.37 The ref-
erence to security serves to remind authorities of the rule of law safeguards
required when liberty is at stake.38 In that case, the hidden intention to ar-
rest undermined the principle of legal certainty which potentially breached
the right to security.39 The Strasbourg Court noted the potential for lack of
transparency to lead to feelings of personal insecurity in persons summoned
as witnesses.40
The third set of cases, in the early twenty-first century and in the context
of extradition and expulsion, demonstrates movement towards recognizing
security as a separate right. The move arises with the case of Öcalan v Turkey,41
in which a Turkish citizen was arrested by Turkish authorities in Kenya, in
collusion with Kenyan authorities, outside the formal extradition procedure.
33
ibid [123]; see also El-Masri v Former Yugoslav Republic of Macedonia (2013) 57 EHRR 25;
Huseynov v Azerbaijan App no 59135/09 (ECtHR, 7 May 2015); Nagiyev v Azerbaijan App no
16499/09 (ECtHR, 23 April 2015).
34
Varbanov v Bulgaria App no 31365/96 (ECtHR, 5 October 2000); MH v UK (n 15).
35
See also Bilgin v Turkey (2002) 35 EHRR 39; Cyprus v Turkey (2002) 35 EHRR 30; Ípek v Turkey
App no 25760/94 (ECtHR, 17 February 2004); Ibragimov v Russia App no 34561/03 (ECtHR, 29
May 2008); Sangariyeva v Russia App no 1839/04 (ECtHR, 29 May 2008); Shakhgiriyeva v Russia
App no 27251/03 (ECtHR, 8 January 2009); El-Masri (n 33).
36
Nikolaishvili v Georgia App no 37048/04 (ECtHR, 13 January 2009) [49].
37
ibid [52]. 38
ibid [52]. 39
ibid [53].
40
ibid [56]. See also Uğur v Turkey App no 37308/05 (ECtHR, 13 January 2015), in which two
minors were taken to a police station as witnesses and then treated as suspects.
41
Öcalan v Turkey (2005) 41 EHRR 45, affirming Öcalan v Turkey (2003) 37 EHRR 10.
Öcalan claimed that the arrest breached his right to security because the pro-
cedural safeguards in Article 5(2)–(5) were not met. At first, this looks like
an archetypal Article 5 liberty case. The emphasis remained on procedural
protection and the context remained that of arbitrary detention. However,
the Strasbourg Court stated that ‘what is at stake here is not only the “right to
liberty” but also the “right to security of person” ’,42 and that ‘an arrest made
by the authorities of one state on the territory of another state, without the
consent of the latter, affects the person’s individual right to security under art
5(1)’.43 The importance of these statements is that for the first time the possi-
bility of breaching the right to security as distinct from the right to liberty was
acknowledged.44 This is significant because it recognizes the right to security
as related to but independent from the right to liberty. The model of Öcalan
(identifying the possibility of a breach founded upon the right to security)
was followed in several other cases.45 However, the Strasbourg Court has not
yet upheld a claim for breach of the right to security as distinct from a breach
of the right to liberty.
In the fourth set of cases, during the same period as the third set, arguments
that Article 5 should be broadened to include scenarios outside of detention
were rejected. However, the same arguments successfully established breaches
of Articles 3 or 8. Article 3 reads ‘No one shall be subjected to torture or to in-
human or degrading treatment or punishment.’ Article 8(1) reads ‘Everyone has
the right to respect for his private and family life, his home and his correspond-
ence.’ Article 8(2) details the circumstances in which a state may limit the rights
in Article 8(1) without breaching the ECHR.
In Pretty v United Kingdom,46 a woman who was suffering from a terminal
and degenerative illness requested that the United Kingdom guarantee not to
prosecute her husband if he helped her to terminate her own life. She made
a number of claims, including a breach of the right to security in Article 5,
relying on the Canadian precedent of Rodriguez v British Columbia, in which
a similar situation was said to infringe the right to security of the person
under the Canadian Charter.47 Pretty was litigated before the House of Lords,
42
Öcalan 2005 (n 41) [83]; See also Salayev v Azerbaijan App no 40900/05 (ECtHR, 9
November 2010) [35].
43
Öcalan 2005 (n 41) [85], emphasis added.
44
On the facts, there was no breach of ECHR, art 5 because the detention was in accordance
with a procedure proscribed by law: Öcalan 2005 (n 41) [99].
45
Tekdağ v Turkey App no 27699/95 (ECtHR, 15 January 2004); Tepe v Turkey (2004) 39
EHRR 29; Türkoğlu v Turkey App no 34506/97 (ECtHR, 17 March 2005); Kaboulov v Ukraine
(2010) 50 EHRR 39 [130].
46
Pretty v United Kingdom (2002) 35 EHRR 1.
47
Rodriguez (n 9). However, for reasons of public policy it was decided that the limitation was
not a breach of the principles of fundamental justice and therefore did not breach the right. For a
18

where the claim failed before it was taken to Strasbourg. The Strasbourg
Court quoted a long section the Lords’ judgment,48 which rejected the argu-
ment that Rodriguez reasoning could be applied to Article 5.49 The Strasbourg
Court did not contradict the Lords’ statement that Article 5 was limited to the
context of arbitrary detention and did not examine the issue under Article 5.
The Strasbourg Court also considered Pretty’s claims under Articles 3 and
8 of the ECHR. Most significantly, it recognized the breadth of the idea
of ‘private life’ in Article 8 and the importance of the principle of personal
autonomy, which underlies Article 8. This includes the physical and psycho-
logical integrity of the person and aspects of personal and social identity,
interests which are protected under the right to security of the person in
section 7 of the Canadian Charter.50 The Strasbourg court remained open to
a potential breach of Article 8(1) in so far as the law prevented the applicant
from exercising her choice to prevent an undignified and distressing end to
her life. However, given the aims of the ban on assisted suicide to protect the
vulnerable from abuse, the limitation on the applicant’s rights was held to be
justified under Article 8(2).
In Gillan v United Kingdom, the exercise of stop-and-search powers by
police was held to breach Article 8 of the Convention but not Article 5(1).51
The time that the applicants were detained was insufficient to amount to a
deprivation of liberty so as to engage Article 5(1). A broader conception of
‘security of person’ might have encompassed this circumstance. Similarly, in
Nada v Switzerland, the applicant was prohibited from entering Switzerland,
which had the effect of preventing him from leaving the small Italian area in
which he lived. The Strasbourg Court rejected his claim under Article 5 on
the grounds that this did not constitute a deprivation of liberty within the
meaning of Article 5 but found a violation of Article 8.52
A number of other cases have raised arguments that Article 5 has been
breached alongside Article 3 and Article 8. As in Pretty, the pattern has been
for the Strasbourg Court to reject the Article 5 claim and explore the issues
under Article 3 or Article 8 or both. For example, in Rachwalski and Ferenc
v Poland the Strasbourg Court found a claim that Article 5 was breached
because of police abuse to be admissible in conjunction with claims under
Articles 3 and 8.53 However, in the merits decision, the Strasbourg Court
comparative discussion, see M Cormack, ‘Euthanasia and Assisted Suicide in the Post-Rodriguez
Era: Lessons from Foreign Jurisdictions’ (2000) 38 Osgood Hall LJ 591.
48
R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 [23].
49
Pretty v UK (n 46) [14]. 50
Rodriguez (n 9).
51
Gillan v United Kingdom (2010) 50 EHRR 45.
52
Nada v Switzerland (2013) 56 EHRR 18.
53
Rachwalski v Poland App no 47709/99 (ECtHR, 21 October 2008).
found it ‘unnecessary’ to examine the complaint under Article 5 because it
had already found breaches of Articles 3 and 8.54 In the case of Vasilyev v
Russia, the applicant, who was in a situation of severe medical need, was
abandoned by police and later neglected by doctors.55 Although a breach of
the right to security was claimed, the Strasbourg Court was firm that Article
5 was not relevant as there was no deprivation of liberty. However, a breach
of Article 3 was found because the state authorities had failed to take the
requisite measures to prevent harm to the applicant’s life, and failed to admin-
ister appropriate medical treatment, in circumstances which were inhuman
and degrading. Thus, scenarios which might arguably fall within the right to
security but for the Strasbourg Court’s limitation of that right to detention,
sometimes amount to a breach of Article 3 or Article 8. The next section of
Chapter 1 shows that these same scenarios would be treated as breaches of the
right to security under section 7 of the Canadian Charter.
In addition to interpreting the right to security, the rhetoric of security
is used in Strasbourg judgments. In Yefimova v Russia, the obligation on the
state to secure a detained person’s health and well-being and provide requisite
medical assistance under Article 3 was noted, although that part of the ap-
plication was dismissed as manifestly ill-founded on the facts.56 In Akdeniz
v Turkey57 and Tanis v Turkey,58 reference was also made to securing account
ability of state authorities for unlawful detentions as well as securing liberty or
the conditions against arbitrary detention. The purpose of Article 5 to secure
‘the rights of individuals in a democracy to be free from arbitrary detention at
the hands of the authorities’ is also commonly noted,59 as is the importance
of the guarantees in Article 5 to ‘secure the right of individuals in a democ-
racy to be free from arbitrary detention’.60 These statements reinforce the fact
that in the ECHR the substance of Article 5 is the right to liberty and that
the procedural protections are the mechanisms by which liberty is secured.
Notably, in Tepe v Turkey,61 a case of alleged abduction, torture, and murder
at the hands of state authorities, a reference to ensuring or guaranteeing security
is found. In previous cases, security had been portrayed as ensuring or guar-
anteeing the conditions of liberty and it is curious to see security portrayed as
54
Rachwalski v Poland App no 47709/99 (ECtHR, 28 July 2009).
55
Vasilyev v Russia App no 32704/04 (ECtHR, 17 December 2009) [160].
56
Yefimova v Russia App no 39786/09 (ECtHR, 19 February 2013).
57
Akdeniz v Turkey App no 25165/94 (ECtHR, 31 May 2005).
58
Taniş v Turkey (2008) 46 EHRR 14.
59
Krupko v Russia App no 26587/07 (ECtHR, 26 June 2014); El-Masri (n 33).
60
Shakhgiriyeva (n 35) [187]; Yusupova and Zaurbekov v Russia App no 22057/02 (ECtHR, 9
October 2008).
61
Tepe (n 45).
20

a value which itself might be secured or ensured.62 As it happens, the case was
unsuccessful for want of proof. The reference to ‘ensuring security’ appears to
originate from the applicant rather than the Court and in the absence of con-
sistent factual findings, the case cannot be held as a precedent for a new de-
velopment in Article 5 jurisprudence. Subsequent cases in which claims were
successful do not adopt this portrayal of the right to security.63 Phrases such
as ‘Article 5 enshrines a fundamental human right, namely the protection of
the individual against arbitrary interference by the State with his or her right
to liberty’64 erase any doubt that Article 5 is only engaged where there is a de-
privation of liberty.65 In Medvedyev and others v France, the Strasbourg Court
stated that:66
. . . art. 5 of the Convention is in the first rank of the fundamental rights that protect the
physical security of an individual, and that three strands in particular may be identified
as running through the Court’s case law: the exhaustive nature of the exceptions, which
must be interpreted strictly and do not allow for the broad range of justifications under
other provisions; the repeated emphasis on the lawfulness of the detention, procedurally
and substantively, requiring scrupulous adherence to the rule of law; and the importance
of the promptness or speediness of the requisite judicial controls under art. 5(3) and (4).
The quote is interesting in so far as the Strasbourg Court mentions a ‘right to
security’ as distinct from a right to liberty. However, the rest of the paragraph
makes it clear that the focus is still on procedural protections in the case of
deprivations of liberty. Similarly, in Chumakov v Russia, the Strasbourg Court
noted the incompatibility of ex post facto judicial authorization of detention as
incompatible with the ‘right to security’ in Article 5.67
Thus, despite some separation of the concept of liberty from se-
curity within Article 5, the right to security is not treated as an in-
dependent right under the ECHR. The right to security in the
ECHR is only relevant in situations of arbitrary detention, including
mental health detention,68 anticipated detention,69 unacknowledged
62
For a critical discussion of the pursuit of security as a goal, see L Zedner, ‘The Pursuit of
Security’ in T Hope and R Sparks (eds), Crime, Risk and Insecurity: Law and Order in Everyday Life
and Political Discourse (Routledge 2000).
63
See, eg, Ípek (n 35); Khudoyorov v Russia (2007) 45 EHRR 5; Altun v Turkey App no 24561/
94 (ECtHR, 1 September 2004); Çaçan v Turkey App no 33646/96 (ECtHR, 26 January 2005). See
also the unsuccessful arguments in Popov v Russia App no 26853/04 (ECtHR, 13 July 2006) [196];
Tekdağ (n 45) [88].
64
Austin v United Kingdom (2012) 55 EHRR 359 [60].
65
See, eg, Mihailovs v Latvia App no 35939/10 (ECtHR, 22 January 2013); Austin, ibid.
66
Medvedyev v France (2010) 51 EHRR 39 [117].
67
Chumakov v Russia App no 41794/04 (ECtHR, 24 April 2012).
68
MH v UK (n 15); Stanev v Bulgaria (2012) 55 EHRR 22.
69
Othman (Abu Qatada) v United Kingdom (2012) 55 EHRR 1.
The right to security in the Canadian Charter 21
detention,70 and the effective investigation of alleged disappearances.71
Although the Strasbourg courts initially denied that the right to security had
any separate existence from the right to liberty, over the past three decades
there has been a subtle change towards portraying it more as an independent
concept—related to liberty, but separate.
The right to security in the Canadian Charter—autonomy

and integrity
The Canadian Charter protects the right to life, liberty, and security of the person
in section 7, which reads:
Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice.
Unlike the approach to the right to security of person in the ECHR taken by the
Strasbourg Court, the Canadian Supreme Court has interpreted life, liberty, and
security as three separate rights.72 The Supreme Court has examined the right in
depth on a number of occasions and is enunciating it on a case-by-case basis,73
leaving room for further expansion as appropriate. Its understanding of the right
to security of the person has thus evolved over time.
The right to life, liberty, and security of the person has proven to be
one of the most controversial Charter provisions.74 It has been interpreted
to protect physical and psychological integrity and aspects of autonomy.
The subject matter of cases includes abortion,75 physician-assisted dying,76
sex work,77 safe-injection facilities for drug users,78 social welfare,79 legal
70
See Khamila Isayeva v Russia App no 6846/02 (ECtHR, 15 November 2007); El-Masri (n 33);
Baysayeva v Russia (2009) 48 EHRR 33.
71
See Varnava v Turkey App nos 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/
90, 16071/90, 16072/90, and 16073/90 (ECtHR, 18 September 2009); Gambulatova v Russia App
no 11237/10 (ECtHR, 26 March 2015).
72
Re BC Motor Vehicle Act [1985] 2 SCR 486 (CanLII), 500 (Lamer J); R v Morgentaler [1988]
1 SCR 30 (CanLII) 52 (Dickson CJ and Lamer J).
73
See, eg, Reference re ss 193 and 195.1(1)(c) of the Criminal Code (Man) [1990] 1 SCR 1123
(CanLII) 1219; Morgentaler (n 72) 52.
74
T Christian, ‘Section 7 of the Charter of Rights and Freedoms: Constraints on State Action’
(1984) 22 Alberta L Rev 222; P Hogg, Constitutional Law of Canada (5th edn, Carswell 2007)
para 47.10.
75
Morgentaler (n 72).
76
Rodriguez (n 9); Carter v Canada (Attorney General) 2015 SCC 5, [2015] 1 SCR 331 (CanLII).
77
Criminal Code (Man) Reference (n 73); Bedford v Canada 2013 SCC 72, [2013] 3 SCR 1101
(CanLII).
78
Canada (A-G) v PHS Community Services Society 2011 SCC 44, [2011] 3 SCR 134 (CanLII).
79
Gosselin v Québec (AG) 2002 SCC 84, [2002] 4 SCR 429 (CanLII).
2

aid,80 physical punishment of children,81 the right of young persons to refuse
medical treatment,82 and access to private health care.83 Many of the most
important judgments are related to health and a person’s autonomy over their
body. Interestingly, most of them involve claims by women.
Despite the similarity in wording between the legal rights, the contrast be-
tween the Canadian approach and that taken in Strasbourg is striking.84 Indeed,
it is difficult to think of a more significant difference than protecting values
such as autonomy and privacy within security of person on the one hand and
limiting security of person to arbitrary detention on the other. The restrictive
Strasbourg approach was adopted in some early provincial decisions,85 but not
by the Supreme Court.
The inclusion of privacy and autonomy in the right to security of the person
is conceptually interesting. Autonomy is more often seen as a form of liberty,86
rather than security.87 Further, in Europe, jurisprudence about privacy and au-
tonomy arises in the context of the right to respect for private and family life
(Article 8) rather than the right to security of person (Article 5). This raises
questions about whether the absence of an equivalent provision in the Charter
accounts for the more expansive approach to the right to security of the person,
or conversely, whether the inclusion of the right to respect for private and family
life in the ECHR has led to a narrow interpretation of the right to security
of person. Both the ECHR and the Charter are supposed to reflect universal
human rights. The idea that a particular interest would fall within one right in
one jurisdiction and another right in a second jurisdiction, when both purport
to implement the same universal obligation, suggests ambiguity in the nature of
the obligation itself.
There are specific bodies of jurisprudence about the interpretation of
section 7 of the Charter and its relationship with section 1, which delineates
80
New Brunswick (Minister of Health and Community Services) v G(J) [1999] 3 SCR 46 (Can LII).
81
Canadian Foundation for Children, Youth and the Law v Canada 2004 SCC 4, [2004] 1 SCR
76 (CanLII).
82
AC v Manitoba (Director of Child and Family Services) 2009 SCC 30; [2009] 2 SCR 181
(CanLII).
83
Chaoulli v Quebec 2005 SCC 35, [2005] 1 SCR 791 (CanLII).
84
For a comparative discussion, see Cormack (n 47).
85
See Operation Dismantle v R [1985] 1 SCR 441 (CanLII) [8]‌(Pratte J).
86
I Berlin, ‘Two Concepts of Liberty’ in Four Essays on Liberty (OUP 1969) 175 discussing
JS Mill’s development of liberty as autonomy; J Raz, ‘Freedom and Autonomy’ in The Morality of
Freedom (Clarendon 1986).
87
The Court has used the term ‘autonomy’ extensively with regard to defining liberty in the
context of section 7 too: B(R) v Children’s Aid Society of Metropolitan Toronto [1995] 1 SCR 315
(CanLII) [80] (La Forest J), cf [1]‌(Lamer J, dissenting); Godbout v Longueuil (City) [1997] 3 SCR
844 (CanLII) [66] (La Forest J); Morgentaler (n 72) 166 (Wilson J).
the circumstances in which Canada may legally limit Charter rights,88 and
sections 8–14, which list ‘legal rights’ applicable in the criminal justice field.
As the focus here is on the meaning of ‘security of the person’ within section
7, the full legal context is not discussed in detail.89
Security of the person in Charter jurisprudence has been interpreted as
physical and psychological integrity, extending to autonomy about the treat-
ment of one’s body. The most significant early Supreme Court decision is R v
Morgentaler.90 In this case, it was found by majority that the highly bureaucrat-
ized state abortion system breached Canadian women’s right to security of the
person. Canadian criminal law proscribed taking steps to cause abortion, except
when administered by a qualified medical practitioner in an accredited hospital
after receipt of a certificate issued by a ‘therapeutic abortion committee’.91 The
committee would determine whether an abortion was necessary in the interests
of health, irrespective of the opinion and personal goals of the woman. This
system was criticized as inept to cope with women’s personal preferences about
a matter so fundamental to their bodily integrity and mental well-being. It was
also criticized for being excessively time-consuming, resulting in late-term abor-
tions, which posed a greater risk to women, and for being arbitrary in so far as
different committees would come to different decisions depending on members’
personal attitudes. In some areas, committees and appropriate hospitals (and
thus legal abortions) were not available at all.
Based upon United States’ constitutional theory, counsel for the appellants
argued that security ‘is a wide-ranging right to control one’s own life and to
promote one’s individual autonomy. The right would therefore include a right
to privacy and a right to make unfettered decisions about one’s own life.’92
However, the Supreme Court declined to accept such a broad interpretation.
The four separate judgments each took a slightly different approach. The mi-
nority judgment suggested that the claim was effectively a claim for a right
to abortion, which was clearly not protected under Canadian law and could
not be read into section 7.93 Furthermore, even if there were a right to abor-
tion in cases where the continuation of pregnancy posed a danger to health,
there would be no breach of the Charter as the regime provided for this
eventuality.94 This second point is surprising given that far from responding
88
Section 1 reads ‘The Canadian Charter of Rights and Freedoms guarantees the rights and free-
doms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.’
89
For more detail, see Hogg (n 74); G Regimbald and D Newman, The Law of the Canadian
Constitution (LexisNexis Canada 2013).
90
Morgentaler (n 72). 91
Criminal Code, RSC 1985, c. C-46, s 251(1).
92
Morgentaler (n 72) 51. 93
ibid, 142 (McIntyre J).
94
ibid, 148 (McIntyre J).
24

adequately to health risks, the regime was claimed to exacerbate them. This
was the basis of the majority opinion.
Beetz J (with Estey J concurring) held that the state-exacerbated danger
to life and health caused by delays in approving abortions was a breach of
the right to security of the person.95 Dickson CJ and Lamer J took an even
broader perspective and held that ‘state interference with bodily integrity and
serious state-imposed psychological stress, at least in the criminal law context,
constituted a breach of security of the person’.96 The questions of whether au-
tonomy and privacy form part of security and whether a breach of the right to
security could occur in a non-criminal context were left open. Wilson J held
that the regime took away women’s choices about their bodies and found a
breach of both the right to liberty and the right to security on the grounds of
autonomy.97 The various approaches taken by the judges in this case demon-
strate just how flexible and ambiguous the right to security of person can be.
Similar to the ECHR case of East African Asians,98 Morgentaler set the param-
eters for all later discussions of section 7.
The Morgentaler analysis was extended in Rodriguez v British Columbia.99
The four judgments in Rodriguez are interesting for the way in which they
treat the interaction between dignity, autonomy, privacy, life, liberty, and se-
curity. In Rodriguez, a woman affected by a terminal illness wished to have her
physician make arrangements by which she could end her own life, thereby
avoiding a predicted slow, painful, and undignified death. She claimed a
breach of her right to security of the person on the ground that her ability
to make autonomous decisions about the end of her life was removed by the
criminal law.100 The majority of the Supreme Court considered that liberty
and security could not be divorced from questions about the sanctity of life.
Further, security ‘encompasses’ the ideas of human dignity and personal au-
tonomy.101 This covers control over one’s body during life, as well as physical
and psychological integrity. The majority found a breach of the right to se-
curity of the person because the legislation in question deprived the applicant
of autonomy and caused her physical and psychological stress.102 McLachlan
J delivered a supporting judgment in which she suggested that:103
Security of the person has an element of personal autonomy, protecting the dignity
and privacy of individuals with respect to decisions concerning their own body. It is
95
ibid, 81 (Beetz J). 96
ibid, 56 (Dickson CJ and Lamer J).
97
ibid, 163 and 166 (Wilson J). 98
East African Asians (n 12).
99
Rodriguez (n 9). 100
Criminal Code 1985, s 241(b).
101
Rodriguez (n 9) 588 (Sopinka J). The idea that security of person ‘encompasses’ human dig-
nity is criticized in Lazarus (n 4) 335–6.
102
Rodriguez (n 9) 589 (Sopinka J). 103
ibid, 618 (McLachlin J).
part of the persona and dignity of the human being that he or she have the autonomy
to decide what is best for his or her body.
Ultimately Mrs Rodriguez’s claim was unsuccessful as the legislation was held
to be in accordance with the principles of fundamental justice.104 This rea-
soning has parallels with that of the Strasbourg Court in Pretty,105 although
that case was decided under the right to respect for private and family life and
not the right to security of person.
Twenty-two years later, in Carter v Canada (Attorney General), the Supreme
Court unanimously overturned Rodriguez and found that:106
the prohibition on physician assisted dying is void insofar as it deprives a competent
adult of such assistance where (1) the person affected clearly consents to the termin-
ation of life; and (2) the person has a grievous and irremediable medical condition
(including an illness, disease or disability) that causes enduring suffering that is in-
tolerable to the individual in the circumstances of his or her condition.
The Supreme Court noted that since 1993, the impetus for legalizing
physician-assisted dying had grown in Canada and that legislative regimes
had since been put in place in eight other jurisdictions, which provided
models by which to protect the vulnerable from abuse. The Supreme Court
noted the importance of autonomy that underlies both liberty and security of
the person107 and reaffirmed the relevance of section 7 to a person’s ability to
make their own medical decisions because:108
[a]‌n individual’s response to a grievous and irremediable medical condition is a
matter critical to their dignity and autonomy. The law allows people in this situation
to request palliative sedation, refuse artificial nutrition and hydration, or request the
removal of life sustaining medical equipment, but denies them the right to request
a physician’s assistance in dying. This interferes with their ability to make decisions
concerning their bodily integrity and medical care and thus trenches on liberty. And,
by leaving people . . . to endure intolerable suffering, it impinges on their security of
the person.
Since Rodriguez, the jurisprudence on the principles of fundamental justice
had been developed further to encompass a proportionality doctrine. This
enabled the Supreme Court to find that a blanket ban on physician-assisted
104
ibid, 608 (Sopinka J). McLachlan J and L’Heureux-Dubé J dissented on this point and sug-
gested that the legislation was arbitrary because the blanket ban on assisted suicide was dispropor-
tionate to the objective (preventing abuse of process). It was also discriminatory as suicide was lawful
but assisted suicide not: 617–27. Lamer CJ would have allowed the claim on the basis of discrim-
ination (s 15) and did not comment upon s 7: 544. Cory J focused on the right to life, which in his
view incorporates a right to die with dignity: 630.
105
Pretty v UK (n 46). 106
Carter (n 76) [4]‌. 107
ibid [64].
108
ibid [66].
26

dying, when it would be possible to create a regulatory regime with appro-
priate safeguards for the vulnerable, was ‘over-broad’ and therefore not in
accordance with the principles of fundamental justice. Carter develops the
meaning of ‘security of person’ by incorporating the idea of leaving people
to endure intolerable suffering, an idea which could also be seen as coming
within the right to freedom from inhuman and degrading treatment (ex-
pressed as ‘cruel or unusual treatment or punishment’ in the Charter).109
Health-related claims are common in section 7 jurisprudence, particularly
cases about the ability of people to make decisions about their own health
care. In Chaoulli v Quebec, state health legislation110 was challenged on the
ground that it breached the right to security of the person by prohibiting the
purchase of private health insurance.111 All but the very wealthiest Quebecois
had no option but to rely on the public health system. Those who could af-
ford to would pay for health treatment privately without insurance, often
travelling to the United States. Unfortunately, there were delays in the public
health system, such that some people’s health conditions were worsening,
sometimes to the point of death, before they were treated (rich and poor
alike).
The claim was made under both the Quebec Charter and the Canadian
Charter. In the leading judgment, Deschamps J focused upon the Quebec
Charter. He nevertheless noted Canadian Charter cases112 in which a state-
caused delay leading to an exacerbation of existing health conditions was held
to breach the right to security of the person, and interpreted the Quebec
Charter in a parallel way. McLachlin CJ and Major J113 concurred about the
Quebec Charter but also went on to find a breach of section 7 of the Canadian
Charter following Rodriguez about the relevance of personal autonomy about
bodily integrity.114 Because the Court was split on the issue of whether the
legislation breached the principles of fundamental justice, the case is treated
as decided on the Quebec Charter and cannot be treated as an authorita-
tive statement about the interpretation of section 7 of the Canadian Charter.
However, in Bedford v Canada, the Supreme Court struck down legislation
109
Canadian Charter, s 12.
110
Health Insurance Act, RSQ c. A-2 s 15 and Hospital Insurance Act, RSQ c. A-28, s 11.
111
Chaoulli (n 83).
112
ibid [43] citing Morgentaler (n 72); Rodriguez (n 9); New Brunswick (n 80); Blencoe v British
Columbia (Human Rights Commission) 2000 SCC 44, [2000] 2 SCR 307 (CanLII).
113
Supported by Basterache J.
114
Chaoulli (n 83) [122]. Fredman criticizes this case because by ignoring questions of substan-
tive freedom and equality the Supreme Court replicated the structure of wealth that lead to the in-
equality of access to health care: S Fredman, ‘The Positive Right to Security’ in Lazarus and Goold,
Security and Human Rights (n 4) 318.
prohibiting bawdy-houses (brothels) and other means of regulating prosti-
tution (itself not illegal) based on similar reasoning: that the legislation pre-
vented prostitutes from taking critical measures to protect themselves.115
Similarly, in PHS Community Services v Canada (Attorney General), the
failure of the Federal Minister of Health to extend an exemption from laws
criminalizing possession and trafficking of drugs to a supervised safe area for
drug users to self-administer drugs and access primary health care was de-
clared to be in breach of section 7.116 The effect of the Minister’s decision
was to prevent drug users from having access to potentially life-saving health
services. The Supreme Court stated that:117
[w]‌here a law creates a risk to health by preventing access to health care, a deprivation
of the right to security of the person is made out. . . . Where the law creates a risk not
just to the health but also to the lives of the claimants, the deprivation is even clearer.
The decision was held to be contrary to the principles of fundamental just
ice because it was arbitrary and grossly disproportionate.118 However, in R v
Levkovic, a woman unsuccessfully challenged a criminal law that limited her
ability to not disclose the natural end of a failed pregnancy on the basis of
her personal autonomy and privacy. The Supreme Court held that the claim
was really about legal certainty and the provision in question was sufficiently
clear.119 Interestingly, although it did not analyse section 7 in any detail, in
Levkovic the Canadian Supreme Court addressed ‘liberty and security’ to-
gether.120 This is a break from the trend of dealing with them separately.
The right to refuse medical treatment has been tested in the context of
section 7 of the Charter. In AC v Manitoba (Director of Child and Family
Services) a fourteen-year-old Jehovah’s Witness refused a potentially life-saving
blood transfusion and an order was made pursuant to state legislation121 au-
thorizing the treatment against her will.122 The applicant applied for a dec-
laration that the order authorizing treatment and the legislation breached to
her right to liberty and security of the person because she had the capacity
to make the decision for herself. The majority of the Supreme Court recog-
nized that forced medical treatment invoked the right to liberty and security
of the person. However, it held that the legislation would not be contrary to
the principles of fundamental justice, if it were interpreted such that the ‘best
interests of the child’ took into account the child’s views and her level of ma-
turity. As no consideration had been given in the hearing to the applicant’s
115
Bedford (n 77). 116
PHS Community Services (n 78). 117
ibid.
118
ibid [136]. 119
R v Levkovic 2013 SCC 25, [2013] 2 SCR 204 (CanLII).
120
This also occurred in Carter (n 76).
121
Child and Family Services Act CCSM c.80, s 25. 122
Manitoba (n 82).
28

capacity in fact (the trial judge considered this to be irrelevant), the Supreme
Court was not able to consider whether or not this exercise had been correctly
conducted. Binnie J, in dissent stated that ‘[f ]‌orced medical procedures must
be one of the most egregious violations of a person’s physical and psycho-
logical integrity’.123 This case confirmed that the common law right to refuse
medical treatment is aligned to the right to security of the person. This same
common law right is aligned with the right to privacy and family life under
the ECHR.124
In contrast to the ECHR cases of Rachwalski125 and Vasilyev,126 in which
police violence and failure to provide medical assistance were found to be
contrary to the prohibition on torture and inhuman and degrading treatment
(Article 3) rather than the right to security of person, in the Canadian case of
R v Nasogaluak it was held that:127
[t]‌he excessive use of force by the police officers, compounded by the failure of those
same officers to alert their superiors to the extent of the injuries they inflicted on Mr.
Nasogaluak and their failure to ensure that he received medical attention, posed a
very real threat to Mr Nasogaluak’s security of the person that was not in accordance
with any principle of fundamental justice.
The Court left open whether section 7 imposes a duty on police officers to
provide medical assistance to persons under their care.128 However, it is clear
that unlawful violence can breach the right to security of person in Canada.
This aspect of security of person is even stronger in the South African juris-
prudence (discussed below).
The relationship between violence and security of the person was first estab-
lished in Canadian Foundation for Children, Youth and the Law v Canada.129
In this case, the Supreme Court found that corporal punishment of children
breached their right to security of the person.130 However, it was found to be
not in contravention with the principles of fundamental justice and so there
was no breach of section 7. Similar cases have been found to breach the right
123
ibid [167] (Binnie J).
124
YF v Turkey App No 24209/94 ECtHR 22 July 2003; Glass v United Kingdom (2004) 39
EHRR 15.
125
Rachwalski merits (n 54). 126
Vasilyev (n 55).
127
R v Nasogaluak 2010 SCC 6, [2010] 1 SCR 206 (CanLII) [38].
128
ibid [38]. See also comments in R v Malmo-Levine and Caine 2003 SCC 74, [2003] 3 SCR
571 (CanLII) [231] (Arbour J). This was a dissenting judgment but the interpretation of security
was not part of the dissent.
129
Canadian Foundation for Children (n 81).
130
In fact, the Crown conceded that point: Canadian Foundation for Children (n 81) [3]‌
(McLachlin CJ).
to security of person in South Africa,131 and the right to freedom from torture
and inhuman and degrading treatment under the ECHR.132 Given the devel-
opment in Canadian case law on the topic of the principles of fundamental
justice, if this issue comes before the Supreme Court again, it is possible that
a different outcome would be reached.
Security of person is not strictly limited to matters related to the body—it
extends to state-inflicted psychological suffering. Ordinary distress will not
suffice and the suffering must be significant. On the other hand, it need not
go as far as mental illness.133 Thus, in Canada ‘the person’ is taken to have
both physical and psychological characteristics. This reflects an understanding
that well-being has both physical and psychological elements. However, the
jurisprudence does not go so far as to read a right to general well-being into
the right to security of the person. In R v DB,134 a seventeen-year-old was
convicted of manslaughter and sentenced according to the Youth Criminal
Justice Act.135 The particular offence reversed presumptions that normally
apply to young people which meant that DB had to justify why he should
be treated as a ‘youth’ and why his details should be kept confidential.136 The
Supreme Court held that the reversed onus of proof makes young people
vulnerable to great psychological and social stress due to the stigmatization of
conviction and thus breaches the right to security of person. The effect of the
reverse onus of proof on privacy was decisive.
In Suresh v Canada, the Supreme Court unanimously held that to deport
somebody to a country where he faced a risk of torture was a limitation of
the right to liberty and security of the person and possibly a breach of the
right to life.137 This was considered so obvious that it was asserted and the dis-
cussion focused on whether the limitation was in accordance with the prin-
ciples of fundamental justice. The Strasbourg Court has reached the same
conclusion on the basis of the right to freedom from torture and inhuman
and degrading treatment or punishment.138 In Canada (Prime Minister) v
131
In Christian Education South Africa v Minister of Education 2001 (4) SA 757 (CC) the South
African Constitutional Court upheld a law prohibiting corporal punishment in schools. In S v
Williams 1995 (3) SA 632 (CC) juvenile whippings were held to constitute cruel, inhuman, or
degrading punishment.
132
In A v United Kingdom (1999) 27 EHRR 611 the Strasbourg Court found a breach of ECHR,
art 3 based on the state’s failure to prosecute for corporal punishment of a child at home. However,
corporal punishment in schools was not found to breach art 3 in Costello-Roberts v United Kingdom
(1995) 19 EHRR 112 because it did not reach the requisite level of severity in that case.
133
New Brunswick (n 80) [60] (Lamer CJ).
134
R v DB 2008 SCC 25, [2008] 2 SCR 3 (CanLII).
135
Youth Criminal Justice Act, SC 2002 (YCJA), c.1. 136
ibid, s 75(4).
137
Suresh v Canada (Minister of Immigration and Citizenship) 2002 SCC 1, [2002] 1 SCR 3
(CanLII) [44].
138
ECHR, art 3; Chahal v United Kingdom (1997) 23 EHRR 413.
30

Khadr, the applicant was detained in Guantanamo Bay and tortured with
involvement of Canadian state agents.139 This was held to engage section 7 of
the Charter and did not accord with the principles of fundamental justice.
Reminiscent of Strasbourg Court judgments, the Supreme Court treated ‘lib-
erty and security’ together, noting that Canada’s active participation in what
was, at the time, an illegal regime, continued to affect his current detention in
Guantanamo Bay because information obtained by torture was used to justify
his current detention. Addressing liberty and security together seems logical
when circumstances of detention are in question but importantly, in Canada
section 7 applies in other contexts too.
It is a breach of section 7 to extradite somebody to a place where they
face the death penalty.140 The South African Constitutional Court has also
found this to be illegal but on the basis of the right to life,141 the right to dig-
nity,142 and the right to freedom from inhuman or degrading treatment or
punishment, all of which form part of the right to security of person in that
jurisdiction (see below).143 Once again, the different approaches taken here
demonstrate the fluidity of the notion ‘security of person’ and the way the
right relates to other rights.
Property rights were clearly intended to be outside the parameters of
section 7.144 The rationale is that recognizing property rights would restrain
provincial governments from enacting social legislation to benefit individuals
or the community as a whole. Claims based on pure economic well-being,
including rights to pursue one’s profession,145 are firmly rejected, and whilst
the possibility of general welfare-based claims has been left open,146 in prac-
tice the courts are reluctant to give judgments based on the failure of welfare
systems.147 In Irwin Toy v Quebec, the Supreme Court stated that:148
139
Canada (Prime Minister) v Khadr 2010 SCC 3, [2010] 1 SCR 44 (CanLII).
140
United States v Burns 2001 SCC 7, [2001] 1 SCR 283 (CanLII).
141
SA Bill of Rights, s 11. 142
ibid, s 10.
143
ibid, s 12(1)(d) and (e); Mohamed v President of Republic of South Africa 2001 (3) SA 893 (CC).
144
Senate and House of Commons, Minutes of Proceedings and Evidence of the Special Joint
Committee of the Senate and of the House of Commons on the Constitution of Canada (1980–1981) 8
onwards.
145
Criminal Code (Man) Reference (n 73).
146
Irwin Toy v Quebec [1989] 1 SCR 927 (CanLII).
147
M Jackman, ‘Charter Remedies for Socio-economic Rights Violations: Sleeping under a Box?’
in R Sharpe and K Roach (eds), Taking Remedies Seriously (Canadian Institute for the Administration
of Justice 2010); M Jackman, ‘Poor Rights: Using the Charter to Support Social Welfare Claims’
(1994) 19 Queens LJ 65; M Jackman, ‘The Protection of Welfare Rights under the Charter’ (1988)
20 Ottawa L Rev 257.
148
Irwin Toy (n 146) 1003.
[w]‌e do not, at this moment, choose to pronounce upon whether those economic
rights fundamental to human life or survival are to be treated as though they are of
the same ilk as corporate-commercial economic rights.
It is now a quarter of a century since the decision in Irwin Toy, and the
Supreme Court’s indications that it might consider welfare-related elements
of security of the person have not been realized. In Gosselin v Quebec,149 a
claim based on the deficiencies of a social welfare scheme was held not to
breach the right to security of the person. Nevertheless, even though the ar-
gument has not been successful to date, the Supreme Court clearly recognizes
that the right to security of person is capable, at least in theory, of including
matters such as welfare. The idea that security of the person includes basic
human needs was also adopted by the Law Reform Commission of Canada
at one time.150
An area for potential future development is environmental protection. In
the case of Lockridge v Minister for Environment, a judicial review applica-
tion was made in relation to a decision by the Minister related to a sulphur
production facility. It was alleged that the decision infringed the applicants’
right to security of the person because it failed to consider and minimize the
cumulative effects of sulphur output on the applicants, who were members of
the Aamjiwmaang First Nation. The application survived a motion to strike-
out,151 and does not appear to have progressed to trial. It is possible to make
an argument that security of the person is engaged by environmental regula-
tion if permitted activities cause threats to life or health.152
The right to security of the person in the Charter has been interpreted
to cover a broad range of subject matter. It is interesting how many of the
Canadian right-to-security cases have ECHR parallels which have been de-
cided under other articles, most often the right to privacy and family life or
the freedom from inhuman or degrading treatment. Unlike the ECHR, the
right to security of the person is given an independent meaning, protecting
physical and psychological integrity and autonomy, particularly about mat-
ters related to control of one’s body. One way of understanding this is that
‘the person’ is interpreted as including both the mind and the body and se-
curity is seen as the way in which one protects or has control over one’s own
149
Gosselin (n 79).
150
Law Reform Commission of Canada, Protection of Life: Medical Treatment and the Criminal
Law (Working Paper 26, 1980).
151
Lockridge v Minister for Environment 2012 ONSC 2316, 350 DLR (4th) 720 (CanLII).
152
C Archibald, ‘What Kind of Life? Why the Canadian Charter’s Guarantee of Life and
Security of the Person Should Include the Right to a Healthy Environment’ (2013) 22 Tul J Intl &
Comp L 1.
32

mind and body. Yet another approach is taken to the meaning of the right to
security of person in South Africa.
The right to security in the South African Bill of

Rights—a right defined
The South African Constitution, which encompasses the Bill of Rights, is
part of the new constitutional order built in South Africa at the end of apart-
heid in the early 1990s. The Constitution, which is generally regarded as
‘transformative’,153 has been interpreted so as to further social change.154 This
forward-looking approach is said to ‘infuse the interpretation of the Bill of
Rights’.155
The South African Bill of Rights is unusual in several ways. First, it in-
cludes a wide range of civil, political, social, economic, and cultural rights
together in one document. It is particularly unusual for a national consti-
tutional rights instrument to recognize justiciable socio-economic rights.156
Secondly, all rights in the Bill of Rights are subject to three-fold duties to
respect, promote, and protect.157 This makes it explicit that the rights ground
positive duties, avoiding the possibility of a narrow approach to positive
duties like that taken in Canada158 and avoiding the need for the judiciary to
develop a doctrine of positive obligations like the Strasbourg Court has done
(see Chapter 6). Thirdly, the Bill of Rights applies horizontally.159 The courts
153
See S Liebenberg, ‘Needs, Rights and Transformation: Adjudicating Social Rights in South
Africa’ (2006) 17 Stellenbosch L Rev 5; K Klare, ‘Legal Culture and Transformative Constitutionalism’
(1998) 14 South African J Human Rights 146; C Albertyn and B Goldblatt, ‘Facing the Challenges
of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality’
(1998) 14 South African J Human Rights 248; S Liebenberg, Socio-economic Rights: Adjudication
under a Transformative Constitution (Juta 2010) ch 2.
154
For instance, State v Makwanyane 1995 (3) SA 391 (CC) [7]‌, [58], and [88] in which the
death penalty was declared inconsistent with the SA Bill of Rights.
155
Liebenberg, ‘Needs, Rights and Transformation’ (n 153) 6.
156
See also The Constitution of the Republic of Indonesia of 1945 (as amended), art 34;
Constitution of the Republic of Ghana, arts 25, 26, and 28; Constitution of India (as amended), arts
36–51; and American Convention on Human Rights, art 26. The Northern Ireland Human Rights
Commission recommended including social, economic, and environmental rights in the proposed
Bill of Rights for Northern Ireland: Northern Ireland Human Rights Commission, A Bill of Rights
for Northern Ireland: Advice to the Secretary of State for Northern Ireland (Belfast, 2008).
157
SA Bill of Rights, s 7(2). 158
Jackman, ‘Sleeping under a Box?’ (n 147).
159
SA Bill of Rights, s 8(2) provides that ‘[a]‌provision of the Bill of Rights binds a natural or a
juristic person if, and to the extent that, it is applicable, taking into account the nature of the right
and the nature of any duty imposed by the right’. See J van de Walt, ‘Progressive Indirect Horizontal
Application of the Bill of Rights: Towards a Co-operative Relation between Common-law and
Constitutional Jurisprudence’ (2003) 17 South African J Human Rights 341.
The right to security in the SA Bill of Rights 33
are under a duty to interpret and develop the common law in accordance
with the rights, even when the parties are both private parties.160 By contrast,
the Canadian Charter only applies horizontally when parties rely upon a gov-
ernmental policy, regulation, or law in their private dispute. It does not apply
to purely private disputes.161 The Bill of Rights is to be interpreted ‘gener-
ously, purposively, and in context’.162 The Court may consider foreign law in
interpreting the Bill of Rights163 and typically uses foreign law, including the
jurisprudence of the Strasbourg Court, as a tool of interpretation.164
In South Africa, the right to security of person was initially protected under
section 11 of the Interim Constitution165 and is now protected under section
12 of the Constitution.166 Section 11 read:
11 Freedom and security of the person
(1) Every person shall have the right to freedom and security of the person, which
shall include the right not to be detained without trial.
(2) No person shall be subject to torture of any kind, whether physical, mental
or emotional, nor shall any person be subject to cruel, inhuman or degrading
treatment or punishment.
The wording of section 11(1) was inclusive and the possibility of protecting
aspects of freedom and security of the person other than the right not to be
detained without trial was left open by the text. In Ferreira v Levin, Ackerman
J confirmed that:167
It is obviously unwise and undesirable (if not impossible) even to attempt an ex-
haustive or comprehensive definition or circumscription of the right designed to hold
good indefinitely and for all further cases. Yet, even if the exact nature and boundaries
of the right are to be defined on a case to case basis, some attempt must be made to
determine the meaning, nature and extent of the right.
That case focused upon whether section 11 covered only deprivations of lib-
erty or some wider sense of freedom. It did not directly address the question
of how freedom relates to security of the person. The Court left open the
160
SA Bill of Rights, s 8(3); Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC);
Law Society of South Africa v Minister for Transport 2011 (1) SA 400 (CC).
161
Retail, Wholesale and Department Store Union v Dolphin Delivery [1986] 2 SCR 573 (CanLII).
The Strasbourg Court allows indirect horizontality through the development of the doctrine of posi-
tive obligations. See Chapter 6.
162
Department of Land Affairs v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) [53].
163
SA Bill of Rights, s 39(1).
164
Makwanyane (n 154) [36]–[37]. See generally, I Currie and J de Waal, The Bill of Rights
Handbook (6th edn, Juta 2013) ch 6.
165
Constitution of the Republic of South Africa, Act 200 of 1993 (Interim Constitution).
166
See generally, Currie and De Waal (n 164) ch 12.
167
Ferreira v Levin 1996 (1) SA 984 (CC) [45].
34

possibility of an expansive interpretation of section 11 as a ‘catch-all’ for re-
sidual freedoms not included in the text. However, in fact, the Constitutional
Court did not extend the meaning of section 11 beyond the text. Cases arose
as to whether it was Constitutional to imprison defaulting debtors,168 to im-
pose imprisonment for ignoring a subpoena in a corporate fraud investiga-
tion,169 or to prohibit brothel-keeping and prostitution.170 In none of these
cases was security of the person given an interpretation that was separate from
freedom of the person. The Constitutional Court was reluctant to engage in
examining the parameters of the right to security of person.
In Coetzee v South Africa, Krefler J stated that:171
To determine whether that right is limited by the legislative provisions under scrutiny
in these cases, it is really not necessary to determine the outer boundaries of the right.
Nor is it necessary to examine the philosophical foundation or the precise content
of the right.
Similarly, in State v Jordan (Sex Workers Education and Advocacy Task Force),
the Court had the opportunity to investigate or expand upon the meaning
of the right to security of person in section 11 but did not do so. The Court
was unsympathetic to arguments that breaches of security of person resulted
from the deprivation of income or increased violence of an unregulated and
proscribed sex industry,172 which has since been accepted as a breach of the
right to security of the person in Canada.173 However, the cases mentioned so
far were all under the Interim Constitution and the judiciary may have been
reluctant to develop the right prematurely.
Section 12 of the final Constitution represents a departure from the
phrasing found in other human rights instruments, including the Interim
Constitution, the ECHR, and the Charter, in that it includes a detailed
definition of the right to security of person. Like section 11 of the Interim
Constitution, the wording is inclusive and therefore the rights are not limited
to the matters listed. Section 12 reads:
12 Freedom and Security of the Person
(1) Everyone has the right to freedom and security of the person, which includes
the right
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources;
168
Coetzee v Republic of South Africa 1995 (4) SA 631 (CC).
169
Bernstein v Bester 1996 (2) SA 751 (CC).
170
State v Jordan (Sex Workers Education and Advocacy Task Force) 2002 (6) SA 642 (CC) [75].
171
Coetzee (n 168) [10]. 172
State v Jordan (n 170) [119]. 173
Bedford (n 77).
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes
the right
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their in-
formed consent.
Given the confusion over the meaning of the right to security of person inter-
nationally, the definition in section 12 is welcome. Nevertheless, it is not clear
how section 12(1) and section 12(2) relate. First, is the right to bodily and
psychological integrity (section 12(2)) a separate right to the right to freedom
and security of the person (section 12(1)) or a part of it? Secondly, given that
section 12(2) resembles the interpretation given to security of the person in
Canada, does section 12(1) relate to freedom of the person and section 12(2)
to security of person?174 This seems unlikely because the division is not clear
cut. For example, sections 12(1)(c) and (d) refer to torture and inhuman and
degrading treatment, which seem to be as much aspects of security as they are
aspects of liberty.
State v Baloyi,175 a case about a potential conflict between fair trial rights
and the right to security of person, provides an example of the overlapping
structure of section 12. Legislation introduced to respond to domestic vio-
lence176 was alleged to breach the fair trial rights of the accused under section
35 of the Bill of Rights. The state responded that the limitation was necessary
to protect the rights of others, including the right to security of person of
the victim. The Court emphasized that violence against women is recognized
internationally as a denial of human rights, including the right to freedom
and security of the person. Domestic violence was said to be relevant not
just to section 12(1)(c) (the right to be free from violence from public and
private sources), but also to section 12(1)(d) (the right not to be tortured
in any way), section 12(1)(e) (the right not to be treated or punished in a
cruel, inhuman, or degrading way), and section 12(2) (the right to bodily and
psychological integrity). It was possible to read the statute consistently with
section 35 and therefore the legislation limiting the rights of the accused was
not struck down.
Whichever way the section is understood, it is clear that section 12 covers
most of the interests protected under the right in the ECHR and the Canadian
174
This approach appears to be assumed in Currie and De Waal (n 164) 286.
175
State v Baloyi 2000 (2) SA 425 (CC).
176
Prevention of Family Violence Act 133 of 1993 (SA).
36

Charter, including protection again arbitrary detention177 and psychological
and physical integrity. In addition, section 12 protects against violence to the
person from both public and private sources, and torture and inhuman and
degrading treatment. It is important to note that section 12 protects interests
which are traditionally seen as distinct rights: the right not to be detained
without trial (section 12(1)(b)); not to be tortured (section 12(1)(d)); and
not to be treated or punished in a cruel, inhuman, or degrading way (section
12(1)(e)). As Lazarus notes, in practical terms, it is questionable whether any-
thing is achieved by regrouping in this way.178 The re-organization risks un-
settling well-established norms. The fact that interests which are traditionally
protected as distinct rights have found their way into the right to security of
person in South Africa suggests that the right to security of person is incom-
pletely theorized.
Although section 12 is widely invoked and applied, judicial interpretation
of the meaning of section 12 beyond the text is limited. This is probably be-
cause the right is defined. It might also be due to the fact that interests which
arguably, could be protected by the right to security of person (such as health
and welfare—see Chapter 5) are protected elsewhere in the Bill of Rights.179
The full meaning and breadth of the right to security of person have yet to
be fully explored. To date, there has not been a case in which the permissive
wording in section 12 has been utilized to broaden the right beyond the
factors listed. A number of section 12 cases have related to detention—the
Constitutional Court has stated that in theory, every unlawful detention vio-
lates the right to freedom and security of the person.180 Cases have arisen
about the detention of illegal immigrants,181 the arrest and detention of sus-
pected mercenaries in Zimbabwe,182 and sentencing issues.183 The prohibition
on torture in section 12(1)(d) or inhuman or degrading treatment in section
12(1)(e) have been applied to prevent the extradition of foreigners to places
where they are at risk of standing trial and being subject to the death penalty
without appropriate assurances from the receiving government.184 In Glenister
v President for the Republic of South Africa, the Constitutional Court held
that the abolition of a state security agency and replacement with a new in-
stitution breached a number of constitutional rights, including the right to
security of person, because the new agency was not sufficiently independent
177
Zealand v Minister for Justice and Constitutional Development 2008 (4) SA 458 (CC).
178
Lazarus (n 4) 336. 179
SA Bill of Rights, ss 26–28.
180
Mpofu v Minister for Justice and Constitutional Development 2013 (9) BCLR 1072 (CC) [12].
181
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC).
182
Kaunda v President of the Republic of South Africa 2005 (4) SA 235 (CC).
183
State v Dodo 2001 (3) SA 382 (CC); Nabolisa v S 2013 (8) BCLR 964 (CC).
184
Minister of Home Affairs v Tsebe 2012 (5) SA 467 (CC); Mohamed (n 143).
from Government.185 This case did not focus specifically on the interpretation
of section 12, but it does demonstrate just how broad it can potentially be.
The most notable developments address violence to the person under
section 12(1)(c). It has been suggested that the inclusion of violence against
the person in section 12 was modelled on Article 5 of the International
Convention on the Elimination of All Forms of Racial Discrimination.186
As noted above, the Canadian Supreme Court recognizes the relevance of
violence to section 7 of the Charter, but such violence will only breach the
Charter if it is determined to be contrary to the principles of fundamental
justice.187 Under the ECHR, violence to the person does not appear to be
relevant to Article 5, although there has been some protection through other
Articles.188 A South African example is provided by Van der Merwe v the Road
Accident Fund,189 in which the Court struck down a statutory provision that
barred the applicant from recovering damages for bodily injury caused to her
by her spouse. This provision denied her the equal protection and benefit of
the law. Although judgment was not given on the basis of the right to security
of person, the Court noted, with approval, arguments that the provision po-
tentially breached section 12(1)(c) because:190
spouse batterers and wrongdoers in delict are in effect immunised from making good
patrimonial damages of their marriage partners. This ouster provision seems to be at
odds with the constitutional protection extended to a person’s bodily integrity.
Another example is Christian Education South Africa v Minister of Education,
in which it was held that corporal punishment in private schools breached the
right to security of the person, particularly freedom from all forms of public
and private violence and the right to bodily and psychological integrity.191
This comes within the right to security of person in Canada too.192 In Europe
this issue is dealt with under Article 3, the right to freedom from torture and
inhuman and degrading treatment.193
185
Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC) [198].
186
International Convention on the Elimination of All Forms of Racial Discrimination (adopted
21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (CERD), art 5(b) reads
‘[t]‌he right to security of person and protection by the State against violence or bodily harm, whether
inflicted by government officials or by any individual group or institution’. See Law Society of South
Africa (n 160) [59]; Currie and De Waal (n 164) 281.
187
Khadr (n 139); Nasgaloak (n 127).
188
See, eg, freedom of assembly (ECHR, art 11) sometimes requires the state to take actions
to protect protesters against counter-protestors: Platform Ärzte für das Leben v Austria (1988) 13
EHRR 204 (although action taken was held to have been sufficient in that case).
189
Van de Merwe v Road Accident Fund 2006 (4) SA 230 (CC).
190
ibid [69] (Moseneke DCJ). 191
Christian Education (n 131).
192
Canadian Foundation for Children (n 81). 193
Tyrer (n 23).
38

In Carmichele v Minister of Safety and Security194 an accused person was
released on bail and then made a violent sexual attack on a woman. The po-
lice and the prosecutors supported his application for bail despite the fact
that they were forewarned that the accused posed a danger to the specific
complainant. They did not raise evidence of his previous conviction for rape
before the court in the bail application. It was argued that this breached the
woman’s right to freedom from violence from public and private sources in
section 12(1)(c). The Constitutional Court held that the Constitution is a
normative system and pursuant to section 39(2),195 the common law should
be developed in line with the values enshrined in the Bill of Rights. Leaving
the practical details open, the police were held to have a Constitutional duty
to protect the public, and women in particular, from violent crime. The
Court emphasized the importance of freedom and security of the person,
amongst other rights that should be taken into account by the police in their
duties, and by the Court in developing the common law. The implication
was that when referred back to the High Court, despite the fact that the
common law did not previously have a remedy for this situation, one should
be developed.196
There are a number of cases in which the South African common law was
required to be developed to facilitate protection of the right to security of
person. In Lee v Minister of Correctional Services, a prisoner who had con-
tracted tuberculosis in prison claimed that the overcrowded conditions of
imprisonment, the failure to isolate prisoners who were infected with tuber-
culosis, and the failure to provide adequate nutrition and medical care to pris-
oners who were infected with tuberculosis, amounted to negligence.197 The
case involved a number of procedural, evidentiary and causation issues but
the majority of the Supreme Court (in a 5:4 split) took the view that if the
common law, as it stood, did not provide a remedy for the applicant, it should
be developed in light of the Bill of Rights, including the right to freedom and
security of the person.
Similar reasoning was applied by the majority judgment in F v Minister of
Safety and Security.198 In that case, a young woman was violently raped by a
194
Carmichele (n 160).
195
SA Bill of Rights, s 39(2) reads: ‘When interpreting any legislation, and when developing the
common law or customary law, every court, tribunal or forum must promote the spirit, purport and
objects of the Bill of Rights.’
196
Similarly, in K v Minister of Safety and Security 2005 (6) SA 419 (CC) the complainant was
raped by police officers who were giving her a ride home. This was held to breach her right to se-
curity of the person and demanded the development of a common law remedy.
197
Lee v Minister of Correctional Services 2013 (2) SA 144 (CC).
198
F v Minister of Safety and Security 2012 (1) SA 536 (CC).
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objects of foreign manufacture and those productions of the same
kind that were made at home; in many cases it requires the tact and
instinct of the archæologist to know one from the other. Such
faculties are always, in some degree, liable to err, while in many
cases it is very difficult to give reasons for the conclusions arrived at
by their exercise. The simplest way out of the difficulty has seemed
to us to describe these remains at the same time as the main
compositions to which they were formerly attached. But while we do
so we keep their doubtful character in mind; in our definition of the
style of Chaldæo-Assyrian sculpture we shall only have recourse to
them under great reserve, especially as the style in question is to be
amply studied without their help.
§ 3. The Principal Conventions of Chaldæo-Assyrian Sculpture.
The art of Mesopotamia, like that of Egypt, had its conventions,

some of which were peculiar to itself, while others are common to all
nations that have arrived at sovereign power and maturity of
knowledge.
Like all those who attempt plastic figuration by the light of nature,
the artists of Mesopotamia began with profiles. In speaking of
Egyptian sculpture we had occasion to show how this method of
representation is always followed by first beginners,[143] as it is the
simplest and easiest of all. The Chaldæo-Assyrian artists, unlike
those of Egypt and Greece, were unaccustomed to the nude, and
were therefore without the incentive it supplies to fight against nature
and to make her live in all her variety of aspect, a variety which work
in the round is alone able to grasp without the aid of convention. One
consequence of this is that almost exclusive love of the bas-relief in
which Mesopotamian art is unlike that of any other people. In its very
beginning it seems to have made a vigorous and promising effort to
rise to the production of statues in the round, but discouragement
appears to have rapidly followed, and in later years but a very few
attempts, and those attended with no great success, were made.
The salience of figures was increased or diminished according to
their place and the part they played, but the idea of detaching them
altogether from the background and giving them an independent
existence of their own, was soon abandoned. Under the first
Chaldæan empire, real statues, round which we can walk, were
modelled (see Plates VI. and VII.). In several of these, although the
forms are not so round as in nature, the back is as carefully treated
as the front. On the other hand, the few Assyrian statues that have
come down to us are all too thin from front to back, while their backs
are hardly more than roughly-dressed stone. You feel at once that
they were made to stand against a wall, and you think of children
and of those whose limbs are so infirm that they cannot stand
without support. Before such things, we are far enough, not only
from the grace, vitality, and freedom of the Greeks, but even from the
proud repose of the Egyptian colossi. Although our figures show, of
course, only the front view, this impression is very striking in the
statues of Nebo (Vol. I. Fig. 15) and Assurnazirpal (Fig. 60), which
have migrated from Nimroud to the British Museum. The latter was
found by Layard at the entrance of one of the temples whose plans
we have given (Vol. I. Fig. 189). It is cut from a very hard and close-
grained limestone, and stands upon a pedestal that is nothing but
another block of the same material. We have been compelled, in
order to keep our figure sufficiently large, to reduce this block to the
dimensions of a shallow plinth. In reality it is a cube thirty-one inches
high and twenty-one and three-quarter inches wide.[144]
PLATE VI
ROYAL STATUE
Louvre
J. Bourgoin, del. Imp. Ch.
Chardon Sulpis, sc.
The statues of Nebo and Assurnazirpal are standing figures, but,

at Kaleh-Shergat, Layard found a seated figure of Shalmaneser II.
(Fig. 61).[145] It is in black basalt and has no head. It is of great
interest because it recalls the very oldest Chaldæan statues both in
material and attitude. It has suffered so much, however, and its
workmanship seems to have been so sketchy, that even in the
original itself the details of modelling and costume are hardly to be
recognized. We give a slight sketch of it merely to show its pose.
These statues, if they deserve such a name, show the work of
the Assyrians at its feeblest; the plastic genius of the people must
not be judged from them, but from the genre in which they were most
at home, from the long lines of figures that stand out in various
salience from the palace walls. Among the productions of this latter
class that have come down to our time we find every degree of relief,
from the bas-relief strictly speaking, to what is but little removed from
the round.
Fig. 61.—Statue of Shalmaneser II. Height 58 inches.
British Museum.
Let us begin with the bas-relief. It is with sculptures executed on
this principle that the walls of temples and palaces were covered, as
if with a stone tapestry. The Assyrian process is identical in principle
with that afterwards adopted by the Greeks, as, on the whole, the
most convenient for the purpose in view. We find no examples of the
Egyptian fashion of defining the outlines of figures by a deep groove
cut with the point, nor of those figures that were, so to speak, let into
and modelled within the surface of the wall.[146] In both Chaldæa
and Assyria the figure stands out from the bed of the relief from two
or three millimetres to a centimetre, according to its size. The bed is
nowhere hollowed, it is one even surface, except that where the
figures are very small, and consequently of very slight relief, the
sculptor has reinforced them with an incised outline one or two
millimetres deep. This artifice must be examined on the monuments
themselves; it could hardly be shown in reproductions on a reduced
scale.
Most of the great bas-reliefs have but one plane, and to this they
owe the simplicity that gives them a certain nobility in spite of their
monotonous design (see Vol. I. Figs. 4, 5, 6, 8, 13, 22, 23, 24, &c.).
Examples of two planes, in which the figures are grouped in couples,
the nearest to the spectator in each couple covering a large part of
his companion, are by no means rare (see Fig. 62); we may say the
same of those in which a background of trees is introduced beyond
the figures (Fig. 63). This arrangement is especially frequent in the
more complicated pictures, where the figures are small and
numerous; but even in the last century of the Assyrian monarchy,
when the sculptor showed an ever-increasing desire to draw
attention and excite interest by the introduction of these picturesque
details, he never quits his hold of a right instinct for the true
conditions of the bas-relief. Unlike the Roman sculptors, and even
those of the Renaissance, he shows no hankering after those effects
that seem to get rid of the bed; he never destroys the clarity of his
conception by unduly multiplying the planes. He did not understand
how to put objects in perspective or manage foreshortening, and this
ignorance served him well; it preserved him from the temptation into
which more skilful artists are so prone to fall; it prevented him from
forgetting “that the design best suited to the bas-relief is purely
geometrical in its essentials.”[147]
The relief, of course, becomes higher as the size of the figures
increases. It is as much as from eight to ten inches in the winged
genii (Figs. 27 and 34) that accompany and divide the bulls on the
decorated façades and in the gateways. Even when it is highest the
salience does not go beyond what is called mezzo-relievo; that is to
say, no part of the principal or accessory figure, of the genius himself
or of the lion, stands out from the wall in the round, as, for instance,
do the heads and limbs in the metopes of the Parthenon.
TWO CHALDÆAN HEADS
J. Bourgoin, del. Ramus sc.
Imp. Ch. Chardon
Fig. 62.—Pair of warriors. Louvre. Drawn by Saint-
Elme Gautier.
The same remark holds good of the colossal figures of lions
(Plate VIII.) and winged bulls (Plate IX.) which acted as guardians of
the palace. We have already explained the ideas attached to these
monsters by the Assyrians,[148] we shall here dwell upon some
peculiarities of their execution. In these images there is a
compromise between “the round” and the bas-relief of a very original
and peculiar character.
Looked at from in front these lions and bulls seem to be
independent statues; the head, the chest, the legs stand out with as
much freedom and amplitude of development as in nature; but step a
little to one side, to the right or the left as the case may be, and their
aspect will change. You will then see that only the fore-part of the
animal is disengaged from the block of alabaster or limestone in
which it is cut, the rest of the body remains imprisoned in its
substance. The contours alone are indicated, in low relief, on the two
sides of the ponderous slab. Thus we have half, or rather a quarter,
of the statue standing out from sixteen to twenty inches in front of the
slab on which the sides are shown in silhouette. It looks as if the
image had made an effort to shake itself clear of the mass of stone
and had only partially succeeded. We find ourselves wondering
whether, if Nineveh had not perished and the development of her art
had gone on without interruption, these great beasts would not have
ended by conquering their liberty and winning for themselves an
existence independent of the walls to which they were attached. But
the nature of the material employed says no—alabaster is too soft,
and the legs of the lions and bulls could not support their massive
bodies without assistance.
Fig. 63.—Prisoners. From the palace of Sennacherib; from Layard.

LION FROM THE PALACE OF ASSURNAZIRPAL, NIMROUD
British Museum
Saint-Elme Gautier del etsc Imp. Ch. Chardon
There are other peculiarities in these images. Looked at from in

front they appear stationary, their two fore-feet being on the same
plane and close together; any other arrangement would have been
awkward. But if we look at them from the side they appear to be
walking, in which attitude alone would all the four legs be visible and
clear of each other. In most cases the bulls were not parallel to the
façades they decorated, but perpendicular to them;[149] they faced
the visitor as he approached the gate, and it was not until he entered
the passage that he got a side view of their bodies stretching along
its walls (Figs. 26 and 27). Some contrivance was sought by which
their figures should appear complete from both points of view, and
the following expedient was hit upon. As soon as you had entered
the passage between the bulls, you could, of course, no longer see
more than the fore-leg nearest you; the other was hidden by it. The
latter was then repeated by the sculptor and thrown back under the
body of the animal, which, in the result, had five legs.
The idea is a better one than we are at first inclined to believe.
More than once, perhaps, at the Louvre or the British Museum, you
have paused before these colossal images, you have measured their
height with your eye and admired their tranquil majesty. But have
you ever noticed the artifice I have just described? To see it clearly
you must choose a standpoint on the right or left front, as our
draughtsman has done (Plates VIII. and IX.). If no chance has led
you to such a standpoint in the first instance, if you have, as is most
likely, looked at the figure first in front and then from the side, you
have probably never suspected the sort of trick that the sculptor has
played upon you. This contrivance is one of the distinguishing marks
of Ninevite art;[150] it occurs nowhere else, unless in monuments
such as those of Cappadocia, which are more or less feeble copies
of Assyrian models.[151]
The conventions that remain to be noticed will not detain us so
long. They are such as have been practised in all imperfect schools
of art,—in all, in fact, that preceded the art of the Greeks.
Even in the greatest and most perfect schools of sculpture, the
bas-relief, as if influenced by a souvenir of its origin, prefers figures
in profile to those in full face. In those exceptional instances in which
the Assyrians abandoned this preference, as, for example, in the
decoration of entrances, they were visibly embarrassed. They did not
understand how to foreshorten the feet, therefore they put the lower
part of the figure in profile while the upper part faced the spectator
(see Fig. 34).[152] This puts the figure in a painful and awkward
attitude which could not be imitated by a living man without a violent
effort, or retained for more than a second or two. It is the same when
they wish to make a figure turn; the movement of the shoulders and
neck is so clumsily rendered that the sculptor seems to have put on
the head the wrong side foremost.[153] In general, however, the
ample draperies help the artist out of his difficulties. Thanks to the
veil which hides his ignorance of the attachment of limbs and the
play of muscles, he succeeds in avoiding those dislocations that are
so frequent in the Egyptian bas-reliefs and sometimes result in
obvious deformity.[154]
When he had to render the human countenance the sculptor of
Babylon or Nineveh fell into the same fault as he of Memphis; he
placed a full, or nearly a full, eye in his profiles, and for the same
reason.[155] This defect is not always so conspicuous as in a bas-
relief from Nimroud representing a tributary of Assurnazirpal bringing
two apes, one of which stands on his master’s shoulders while the
other leaps before his feet (Fig. 64); but it is never absent altogether.
Fig. 64.—Vassal bringing monkeys. Height 8
feet. British Museum.
Drawn by Saint-Elme Gautier.
If in its fidelity to habits that we may call childish the sculpture of
Mesopotamia bears a strong resemblance to that of Egypt, it is
nevertheless far inferior to it in other respects. The artist never
seems to have looked closely enough or with a sufficiently awakened
eye to perceive the differences that distinguish one individual or
even one race from another; at least if he saw them he did not
understand how to reproduce them; he did not even try to do so.
From the very beginning—so far as we know it—the art of the Nile
valley turned out portraits both of Pharaoh and of private individuals
that are astonishing in their truth and life.[156] Even in those
executed in a more summary fashion and not in any way to be
classed as masterpieces, we find a singular aptitude in seizing and
noting those peculiarities which make of every human face an
unique creation, a medal of which but one example has been struck.
Ethnic characteristics are given with no less truth; we have seen
elsewhere how many faithful portraits they have left of the races with
whom they entertained long and unbroken relations.[157]
Very few traces of this talent or disposition are to be found in the
monuments of Mesopotamia. Of course in a draped school of
sculpture we could hardly expect to find any great preoccupation
with the various beauties of the human body. Given the Assyrian
costume, it was impossible that the Assyrian artist should aspire to
bring out those beauties. In many works from the Nile valley the
influence of the sex, the age, and even the profession upon the
development of the muscles, upon, if we may be allowed the
expression, the physiognomy of the flesh, is skilfully shown in the
modelling.[158] But faces were not concealed by the Assyrian
draperies; why then were their distinctive marks of individuality so
consistently ignored? The sculptor should have concentrated his
attention upon them all the more, and so arrived at a faithful portrait.
He did not do so however. Neither Assyrian nor Chaldæan had any
such ambition. By a process of selection and abstraction they arrived
at a kind of mean, at a certain ideal of manly beauty which served
them to the end. That ideal is characterized by the abundance and
symmetrical arrangement of the hair and beard, by a low forehead,
heavy and strongly-arched eyebrows, a hooked and rounded nose, a
small mouth with full but not too heavy lips, a strong, rounded chin,
and limbs whose muscular development betrayed their vigour.
Fig. 65.—Head of a eunuch; from Layard.
The universal acceptance of this type is proved chiefly by the
Assyrian sculpture. The fact is that among all the thousands of
figures it produced there are but two heads, the one with, the other
without, a beard. We have already encountered the first in all the
scenes in which the king, his ministers, his officers or his soldiers
appear. It is also used for the gods (Vol. I. Figs. 13 and 15) and the
winged bulls, whose heads, perhaps, like the Egyptian sphinxes,
were supposed to be reproductions of the royal features. The
beardless variety seems, in the royal processions, to be confined to
those eunuchs who have always played such an important part at
Oriental courts (Vol. I. Figs. 23 and 24, and Vol. II. Plate X.); the
fleshy heaviness of their cheeks and necks (Fig. 65) has been
thought to confirm this idea. But we should be mistaken if we
recognized these miserable beings in all the beardless figures. The
latter are so numerous in some compositions that no such
explanation is admissible. In many instances they seem to represent
people of the lowest class, peasants, labourers, and slaves (see Vol.
I. Figs. 45, 151, 152, and Vol. II. Figs. 44 and 48). As the oldest
sculptures of Chaldæa suffice to prove, the habit of wearing the hair
and beard long did not date from the earlier years of that country. In
those sculptures we find heads completely shaved. It is possible that
the ancient custom was changed when the formidable army to which
Assyria owed its power and fortune was created. The beard may
then have become, as the moustache used to be with us, a sign of
the military caste. We never find soldiers or their officers without it;
[159] but their hair and beards are shorter than those of the king and
his ministers (Fig. 66); they do not fall upon the chest and shoulders
in several rows of curls carefully arranged.[160] In the reliefs the
amplitude and length of the beard are always a sign of the highest
rank.
WINGED BULL
FROM KHORSABAD
Louvre
Fig. 66.—Assyrian soldier; from
the Louvre. Height of slab 2 feet.
The temples, the forehead, and the nape of the neck were lost
under this abundant hair, while the beard covered all below the
cheek-bones and the tiara the top of the head. Beyond the nose and
eyes there was hardly anything left by which one individual could be
distinguished from another. Now the Assyrian race was a race in the
proper sense of the word; it was homogeneous and pure-blooded.
Between one member and another of the aristocracy that reigned
and fought, these two features would vary little. All their noses were
more or less aquiline, all or nearly all their eyes large and black. The
national fashion of wearing the hair would suppress many of the
characteristics by which we know one man from another. From all
this it results that the crowd of kings and nobles who furnished the
sculptor with his favourite theme are vastly like each other. This
similarity or rather uniformity was ill calculated to awaken the sense
of portraiture in the artist. The features that distinguished one king
from another are slurred over by the sculptor simply because they
were in reality so lightly marked that he hardly perceived their
existence.
PLATE V
J.Bourgoin del. Imp.Ch.Chardon. J.Sulpis.sc.

ASSURBANIPAL IN HIS CHARIOT
FROM KOUYUNDJIK
Louvre
We know that this opinion is not shared by all those who have
busied themselves with the Assyrian monuments. It has been said
and, in the belief of some, proof has been given, that we possess the
elements of an Assyrian iconography, that the images of the kings, in
the steles and on the palace walls, are true and faithful portraits.[161]
We believe this to be a mistake. No doubt the proportions of the
body, the expression of the face, and the general lines of the profile,
are not the same for Assurnazirpal, Sargon, and the sons and
grandsons of that prince. But what must we conclude from that?
Only that Assyria did not escape, any more than Egypt, from the
action of that law of change which is the very condition of life; that
from one century and one reign to another the taste and execution of
the Assyrian sculptors were modified, though in a very feeble
degree. Thus figures are shorter and more thickset in the north-
western palace at Nimroud than at Khorsabad or Kouyundjik; they
are finer in their proportions, more graceful, and altogether better in
their art under Assurbanipal than under his grandfather, the founder
of the dynasty. Art, as we shall bring abundant evidence to prove,
followed the same path at Nineveh as everywhere else. This is not to
be denied; but before the hypothesis against which we contend can
be accepted, its advocates must show that, in each series of
monuments, the king is to be distinguished by his personal features
from the people about him. You must not take the evidence of
drawings or even of photographs; you must examine the originals
themselves. This I have done with the most scrupulous attention
both in the British Museum and the Louvre. I have carefully
examined and compared the four great series of royal bas-reliefs
that have come down to us, belonging respectively to Assurnazirpal,
Sargon, Sennacherib, and Assurbanipal. If such an examination be
made without prejudice, I am satisfied that only one conclusion can
be come to. In all the pictures dating from one reign the king himself
differs not at all from his officers and nobles; he is only to be
recognized by his lofty tiara, an ornament that he alone had the right
to wear, by his sceptre or some other attribute of the kind, by his
richer costume, and, finally, by his greater stature. The sculptor
always makes him taller than his subjects, still more than his
enemies and captives (Vol. I. Fig. 22, and Fig. 15 above). This latter
proceeding seems childish, but it is so natural, and is found in so
many countries, that it is not at all astonishing. The sculptor has
counted upon all these attributes to show, at a glance, which is the
king; and they are, in fact, of a nature to prevent any chance of a

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Rights As Security: The Theoretical

Basis Of Security Of Person 1st Edition

This book started as an Oxford DPhil project. It therefore represents a period

The illusive right to security

2 Introduction: The Right to Security of Person

4 Introduction: The Right to Security of Person

Inquiring into the right to security

6 Introduction: The Right to Security of Person

8 Introduction: The Right to Security of Person

Nussbaum (n 34); Sen (n 34).

The right to security in the European Convention—​

12 The Legal Right to Security of Person

14 The Legal Right to Security of Person

16 The Legal Right to Security of Person

18 The Legal Right to Security of Person

20 The Legal Right to Security of Person

The right to security in the Canadian Charter—​autonomy

22 The Legal Right to Security of Person

24 The Legal Right to Security of Person

26 The Legal Right to Security of Person

28 The Legal Right to Security of Person

30 The Legal Right to Security of Person

32 The Legal Right to Security of Person

The right to security in the South African Bill of

34 The Legal Right to Security of Person

36 The Legal Right to Security of Person

38 The Legal Right to Security of Person

§ 3. The Principal Conventions of Chaldæo-Assyrian Sculpture.

The art of Mesopotamia, like that of Egypt, had its conventions,

The statues of Nebo and Assurnazirpal are standing figures, but,

Fig. 63.—Prisoners. From the palace of Sennacherib; from Layard.

There are other peculiarities in these images. Looked at from in

J.Bourgoin del. Imp.Ch.Chardon. J.Sulpis.sc.

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