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This chapter compares a system of human rights guarantees of security with libertarian natural rights. Security rights are a solution to a collective action problem that would arise in a state of nature with libertarian natural rights, the internal security problem. To be endorsed by the main principle, a solution to that problem requires guarantees of procedural rights, which have no analog in natural rights. The chapter discusses various problems that have been thought to be fatal to consequentialism: (1) the problem of intentionally punishing the innocent, and the related problem of inadvertently punishing the innocent, which is a challenging one for nonconsequentialists; (2) strict criminal liability; and (3) organ harvesting. The discussion of inadvertently punishing the innocent leads to a consideration of the doctrine of double effect. The chapter concludes the chapter with a comparison of his account with Judith Thomson’s trade-off idea, illustrated by the trolley cases.

This chapter discusses Japanese property law. Topics covered include the concept of real rights, registration, ownership, joint ownership, the right to use another person's property, real securities, and atypical real security rights.

This chapter considers what is distinctive about the Anti-Social Behaviour Order (ASBO) by comparing it with Section 5 of the Public Order Act 1986. It shows that the ASBO penalizes not individual acts that fail to reassure but any manifestation of a disposition to do so by showing that the ASBO imposes a subtle positive obligation of active citizenship and marks those who fail to fulfil this obligation as a second-class citizen by the reduction of their civil rights; by reviewing the controversy over the ASBO's procedure in order to demonstrate that the ASBO protects a right to freedom from fear; by demonstrating that the Coalition government's proposed reforms to the ASBO impose the same substantive liability as an ASBO; and also by explaining why the ASBO's protection of freedom from fear can be described as a right to security.

The right to security is enshrined in international human rights treaties and constitutions. All people share the ambition to live free from fear of attack, loss of life, arbitrary arrest, detention, or coercive interrogation. This chapter explores the theoretical arguments that support the recognition of that ambition as a right worthy of legal and moral protection. It first identifies competing conceptions of security in the theories of Hobbes and Locke. It then discusses the philosophical justifications for the right to security in the work of Blackstone, Shue, Fredman, Powell, and Ramsay. Finally, it exposes the problems associated with broad conceptions of security as a meta-right, and argues in favour of a specific and narrow conception of the right.

Chapter 7 considers issues in applying the analysis of the right to security of person put forward in this book as the basis of a single legal right. It is argued that security of person, substantiated through the capabilities approach (or any other adequate theory of personhood), is too broad to be the subject of a single legal right. This contention raises an important normative question about the role which security of person should play in human rights law. It is accepted that existing legal rights to security of person are rightfully delineated, albeit that these delineations are pragmatic rather than principled. However, drawing on the key learning points that can be drawn from the analysis of security of person in this book, Chapter 7 explores an alternative way to understand the relationship between security of person and human rights law. It is argued that human rights law in general could be seen as one of the key ways by which international and national legal systems seek to further security of person. This approach is referred to as ‘rights as security’.

This chapter examines some of the reasons why it sometimes appears that although people have basic security rights, the right, if any, to even the physical necessities of existence like minimal health care, food, clothing, shelter, unpolluted water, and unpolluted air is somehow less urgent or less basic. Frequently it is asserted or assumed that a highly significant difference between rights to physical security and rights to subsistence is that they are respectively “negative” rights and “positive” rights. The chapter offers some examples that clearly illustrate that the honoring of subsistence rights sometimes involves action no more positive than the honoring of security rights does. It also presents two theses about economic deprivation. The chapter then suggests that with every basic right, there are three types of correlative duties: duties to avoid depriving; duties to protect from deprivation; and duties to aid the deprived.

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 jurisdictions have left the courts to interpret the meaning of the right to security of person. In turn, courts have taken remarkably different approaches to determining which interests should be protected by the right to security of person in their jurisdictional context. Chapter 1 analyses 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, the Canadian Charter of Rights and Freedoms, and the South African Bill of Rights. It is argued that a deeper theoretical analysis is needed to identify the common core of the right.

The twenty-first-century challenge that the chapter faces is how to ensure that positive rights to state protection are properly balanced against duties of state restraint in a climate of insecurity. It argues that, contrary to conservative caricatures, human rights are not only liberal ‘politically correct’ mechanisms of state restraint. Rather they have become increasingly associated with the extension of state coercion, a process which risks securitizing human rights. While courts have had to balance carefully between these imperatives, politicians and philosophers are less keenly aware of the danger that human rights will be instrumentalized to legitimize overblown claims to state coercive protection. The chapter concludes by arguing that we can follow the lead of courts, who have had to confront the nuanced balance between duties of protection and restraint, and start to embrace a concept of ‘tolerable insecurity’. Only by embracing the risks that come with freedom can we have a productive debate about the relationship between insecurity and human rights.

This chapter undertakes the first two justificatory tasks: making a complex moral case for having a system of international legal human rights similar to the one that exists and making headway on the question of which specific norms ought to be included in it. With respect to the former question of justification, the chapter sets out three distinct justificatory arguments. The first identifies seven important benefits a system of international legal human rights similar to the existing one can provide for a wide range of actors, including states. The second argument shows that having such a system is morally obligatory, given the risks that the existing international order imposes on individuals by conferring eminently abusable powers and privileges on states. The third argument shows that states and the governments that act in their name have a special obligation to support such a system, because they are the chief benefiaries of the flaws of the international order that the system helps ameliorate. The latter part of the chapter provides fairly detailed sketches of justifications for representative rights from each of the major categories of human rights: civil and political rights, economic rights and economic liberty rights, the right to democratic government, and rights of physical security.

Drawing on the analysis of security in Chapter 3 and the capabilities approach in Chapter 4, Chapter 5 provides examples of the interests that the right to security of person protects. It also considers the extent to which human rights law already recognizes a link between those interests and security of person. Five overlapping examples are discussed in turn: life, the means of life, health, privacy and the home, and autonomy. Illustrations are brought primarily from the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights jurisprudence. It is argued that protection against material deprivations that threaten a person’s existence are as much part of the right to personal security as protection against physical assaults. The right to security of person effectively overcomes the problematic distinction between civil and political rights and socio-economic rights because it sits in both categories.

In Chapter 6 it is argued that the right to security of person correlates to both negative and positive duties. The right to security of person should not only restrain the state from threatening or putting a rights-holder’s personal interests at risk; it also requires that the state take positive measures to protect the rights-holders’ interests and values against threats and risks, whether or not these emanate from the state. Taking the capabilities approach as the ‘theory of personhood’ underlying the right, it would also require duties of facilitation and provision in situations where the capability to function is non-existent. Finally, Chapter 6 also considers the extent to which rights jurisprudence of the European Convention on Human Rights, the Canadian Charter, and the South African Bill of Rights successfully reflect the positive features of the right to security of person.

This chapter presents a response to Chapter 23’s account of right to security. It argues that debate about the right to security can usefully be structured by answering these four broad questions: First, are there any enforceable positive duties to protect others? Secondly, to what extent do these duties fall on states? Thirdly, under what circumstances and in what way should the right to security be enshrined in a state's constitution? Finally, in what circumstances is the international community permitted or required to interfere with sovereign states to enforce duties of security, or to provide security directly? The chapter attempts to illuminate these questions by identifying some difficult issues that need addressing if they are to be answered.

To make sense of ‘security’ in any context, we need to be able to identify the thing that is to be secured. It follows that the meaning of the right to security of person depends upon the meaning of ‘the person’. In order to understand the right and the interests it protects, we need to take a view about which aspects of ‘the person’ warrant securing. In Chapter 4, I argue that Amartya Sen and Martha Nussbaum’s capabilities approach has the potential to provide a meaningful framework through which to understand the right to security of person: the right would protect ‘capabilities’.

This chapter examines the impact of insolvency proceedings recognized by the Regulation on the rights of secured creditors, particularly the rights of such creditors to enforce their security and participate in the relevant insolvency proceedings. It also considers the impact of the Regulation on banks which hold security/quasi-security, addressing in particular the cross-frontier security rights of banks which hold security over the assets of companies or persons who enter into insolvency proceedings regulated by the Regulation, and the effect of those insolvency proceedings on the banks’ security interests. The chapter identifies those Articles of the Regulation which are particularly relevant to the position of a bank as a secured creditor, addresses the interpretation of those provisions (including the identification of difficult points of construction), and considers the practical aspects and the issues which are likely to face banks seeking to enforce security following the Regulation coming into force.

This chapter analyses the stages of Shue’s argument in Basic Rights, which starts from the premise that human beings have moral rights, specifically claim rights in Hohfeld’s sense. This premise leaves open the content of our moral rights as well as their importance relative to one another and relative to other reasons for action. Noting considerable disagreement about these matters, Shue proposed a criterion for identifying the content, or (as he calls it) substance, of our most weighty, most important rights. Employing this criterion, he argues that four clusters of rights — security rights, subsistence rights, liberty rights, and political participation rights — satisfy this criterion. Shue concludes that these four rights clusters ‘are everyone’s minimum reasonable demands upon the rest of humanity’. Because all four clusters of rights impose both negative and positive duties, the common libertarian dismissal of subsistence rights fails.

In Basic Rights Shue argued that subsistence rights — rights to a minimum level of well-being, sometimes called welfare rights or economic rights — are on a par with rights to physical security, rights ‘not to be subjected to murder, torture, mayhem, rape, or assault’. Shue challenged the standard view that security rights are prior to or more important than subsistence rights — or even that the arguments establishing their priority imply that subsistence rights do not exist. His account of rights is sufficiently demanding to raise the question of whether there are any rights of the sort he is discussing. This chapter examines the charge that basic rights are unacceptably demanding to see whether it stands up.