This book theorises and concretises the idea of 'absolute rights' in human rights law with a focus on Article 3 of the European Convention on Human Rights (ECHR). It unpacks how we might understand what an 'absolute right' in human rights law is and draws out how such a right's delimitation may remain faithful to its absolute character. From these starting points, it considers how, as a matter of principle, the right not to be subjected to torture or inhuman or degrading treatment or punishment enshrined in Article 3 ECHR is, and ought, to be substantively delimited by the European Court of Human Rights (ECtHR). Focusing on the wrongs at issue, this analysis touches both on the core of the right and on what some might consider to lie at the right's 'fringes': from the aggravated wrong of torture to the severity assessment delineating inhumanity and degradation; the justified use of force and its implications for absoluteness; the delimitation of positive obligations to protect from ill-treatment; and the duty not to expel persons to places where they face a real risk of torture, inhumanity or degradation.
Few legal standards carry the simultaneous significance and contestation surrounding this right. This book seeks to contribute fruitfully to efforts to counter a proliferation of attempts to dispute, circumvent or dilute the absolute character of the right not to be subjected to torture or inhuman or degrading treatment or punishment, and to offer the groundwork for transparently and coherently (re)interpreting the right's contours in line with its absolute character.
Torture, Inhumanity and Degradation under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs
1.1. The Book's Dual Pursuit
1.2. The Approach Taken
1.3. The Book's Structure
2. What Is an 'Absolute Right'? A Conceptual Framework on Applicability and Specification
2.1. Introduction: Interrogating the Concept of an 'Absolute Right'
2.2. The Applicability Parameter: Absolute Rights as Non-displaceable Entitlements
2.3. The Applicability Parameter Affirmed in ECtHR Doctrine
2.4. The Specification Parameter: Significance and Implications
3. Delimiting the Absolute: How Should the ECtHR Approach the Specification of Article 3 ECHR?
3.2. Specifying Article 3 ECHR: The ECtHR's Task
3.3. The Words, and Wrongs, Themselves
3.4. Article 3's Negative and Positive Obligations
4. The Specification of Torture under Article 3 ECHR
4.2. Torture as an Aggravated Wrong within Article 3
4.3. Distinguishing Torture: From Intensity of Suffering to Severity of Treatment
5. The Article 3 'Threshold': The Specification of Inhuman or Degrading Treatment or Punishment
5.2. Starting Points in Identifying Inhumanity and Degradation
5.3. The Court's 'Relative' Assessment in Light of the Legitimate Specification Criteria
5.4. 'All the Circumstances of the Case'(?) and Legitimate Specification
5.5. Inhumanity and Degradation in the Context of Punishment
6. The Specification of Positive Obligations under Article 3 ECHR
6.2. What Are Positive Obligations?
6.3. The Circumstances in Which Positive Obligations Arise under Article 3 ECHR
6.4. The Substantive Scope of Positive Obligations under Article 3
6.5. The Specification of Positive Obligations under Article 3 in Light of the Absoluteness Starting Point
6.6. Rethinking Positive Obligations' Coercive Orientation
7. Specifying the Non-Refoulement Duty under Article 3 ECHR
7.2. The Nature of the Central Obligation
7.3. The Non-Refoulement Duty Seen Through the Applicability Parameter
7.4. The Specification of the Non-Refoulement Duty under Article 3 ECHR
7.5. Real Risk
8.1. What Are (the Implications of) Absolute Rights?
8.2. Context, Justificatory Reasoning and the Legitimate Specification of Article 3 ECHR
8.3. Positive Duties to Protect - And Their Limits
8.4. Between the Certain and the Right
8.5. Defending and Upholding the Right Not to Be Subjected to Torture or Inhuman or Degrading Treatment or Punishment: The Future