This chapter seeks to demonstrate, among other things, that these dangers to personal liberty far outweigh the threats to human safety posed by serious ‘terrorist’ threats. The reader will acquire an appreciation of the obligation of states to protect their citizens from terrorism, including the debate as to whether terrorists possess human rights obligations. We shall then proceed to examine the most pertinent human rights violations in counter-terrorist operations. These include the application of the principle of legality to terrorist legislation, the permissibility of relevant derogations, the right to life and the practice of targeted killings, the various contours of unlawful detention against terrorist suspects, torture and ill-treatment in order to gather intelligence information and promote confessions and finally the practice of abductions, unlawful extraditions and illegal rendition. To be sure, counter-terrorist operations have been found to infringe a range of other civil and political rights, such as the freedom of expression and the right to a fair trial.

Civil and political rights emerged out of fundamental rights conceptions protecting life, integrity, liberty and opinion of a person against an overbearing state. Rights such as the right to life and freedom from ill-treatment may also be at risk from other sources, namely non-state actors in the domestic and other spheres, which have taken on a growing importance in the wake of states’ withdrawal from public functions. While international human rights standards have been developed to provide adequate protection in these circumstances, their implementation requires certain structures without which it is unlikely that core civil and political rights can be effectively protected. There are deep-seated structural factors that can, and have, undermined the effective protection of rights in all systems. Social exclusion, inequality and discrimination in particular are prone to significantly increase vulnerability, as evident in the higher likelihood of persons from certain ethnic or class or national backgrounds being subject to arbitrary arrest, detention, ill-treatment and other violations. Against this background this chapter identifies the normative content of the right to life, the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment), the right to liberty and security, the right to a fair trial and qualified rights, particularly freedom of expression, and examines the challenge of ensuring their effective protection.

This article examines the case law of the European Court of Human Rights and the European Commission of Human Rights with regard to arbitration. It focuses on the right to a fair trial in civil matters covered by Article 6 ECHR and the right to the protection of property enshrined in Article 1 of Protocol No. 1 to the ECHR.

The full set of the guarantees provided for by Article 6(1) ECHR is applicable only for compulsory arbitration. The Court’s cases under Article 6 mainly concern the control by national courts of voluntary arbitrations. The article analyses the requirements for the voluntary nature of arbitration and scrutinizes when a waiver of the right to a court is effective.

The article also deals with the institutional and procedural requirements of the right to a fair trial in the context of arbitration and the effect of a waiver of the right to a court on them.

The Court has recognized that final and binding arbitral awards are possessions in the sense of the Convention. Therefore, the article analyses the consequences of the quashing or annulling of final and binding awards or their non-enforcement on the rights protected by Article 1 of Protocol No. 1.

This chapter discusses the development and application of international humanitarian law (IHL) and its interrelationship with human rights law. It further examines this special relationship, which is of particular importance for the protection of civilians, especially where the applicability of IHL is contested or where IHL constitutes an exception to certain rights, such as the right to life, or fails to prevent and/or provide effective remedies for violations. The chapter seeks to identify the scope of application of IHL and demonstrate the degree to which the two can be reconciled. Moreover, a special case is made for the law applicable in situations of military occupation whereby human rights are subordinate to IHL. Despite this subordination, in practice because international human rights tribunals are not mandated to apply humanitarian law they necessarily interpret and enforce the rights of the victims on the basis of the rights found in their respective statutes. As a result, the jurisprudence of human rights tribunals is not always consistent with IHL. Yet, such tribunals are hard pressed to accept jurisdiction over situations which would otherwise be resolved on the basis of IHL alone. This chapter therefore goes on to discuss the exercise of extraterritorial jurisdiction by human rights tribunals.

An examination of regional human rights systems suggests the following typical process. States agree on the need for closer regional cooperation if not integration. Human rights are accepted as one element of, and a yardstick for, the regional political order. A foundational human rights instrument is adopted. Further, a human rights body with a mandate to promote human rights and monitor states parties’ compliance with their treaty obligations is (eventually) set up. Over time, responding to demands and with a view to strengthening the effectiveness and credibility of the system, substantive rights are broadened and the role of victims (and others, particularly non-governmental organisations (NGOs)) in raising the issue of, or complaining about, human rights violations is enhanced. As the system matures this momentum eventually results in the establishment of a judicial body. Parallel efforts to foster regional political integration reinforce the importance of human rights at all levels as a marker of the system’s ability to provide a stable order based on the rule of law and the protection of fundamental rights.

When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III);1