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Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs

Torture, Inhumanity and Degradation Under Article 3 of the ECHR: Absolute Rights and Absolute Wrongs

Author: Natasa Mavronicola
Publisher: Hart Publishing
ISBN: 9781509902996

Published In: February 2021
Format: Hardback , 288 pages
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only
Paperback Edition ISBN: 9781509942428

List Price: HKD 1,235.00

HKD 1,197.95 Save HKD 37.05 (3%)

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Contents

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Human rights are the subject of enduring interest, engagement and controversy both in the academic and public domain. Absolute human rights provoke such interest and controversy even more intensely. Yet the interest and controversy triggered has not been equated with extensive and critically engaged legal scholarship on the meaning and implications of absoluteness as a characteristic of human rights, and how this informs the contours of the right enshrined in Article 3 of the ECHR. Article 3 prohibits torture, and inhuman or degrading treatment or punishment, with no exceptions or limitations.

The book will offer a persuasive theoretical framework for the delimitation of absolute rights in a way which remains faithful to their absolute nature. It aims to counter broad-brush accounts of the delimitation of absolute rights and provide an appropriately nuanced and intellectually honest account of the theoretical foundations, and the abstract and concrete challenges, of such delimitation.

In addition, the book will encompass a rigorous, methodical and theoretically engaged legal analysis of the character and scope of Article 3 of the ECHR, pursued in light of this framework. It will provide the tools for engaging in, and critically assessing, the delimitation of an absolute right with greater clarity and coherence, while also offering a much-needed defence for the continued recognition of the non-displaceable character of this fundamental - but contested - human right.

1. Introduction

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

2.5. Conclusion

3. Delimiting the Absolute: How Should the ECtHR Approach the Specification of Article 3 ECHR?

3.1. Introduction

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

3.5. Conclusion

4. The Specification of Torture under Article 3 ECHR

4.1. Introduction

4.2. Torture as an Aggravated Wrong within Article 3

4.3. Distinguishing Torture: From Intensity of Suffering to Severity of Treatment

4.4. Conclusion

5. The Article 3 'Threshold': The Specification of Inhuman or Degrading Treatment or Punishment

5.1. Introduction

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

5.6. Conclusion

6. The Specification of Positive Obligations under Article 3 ECHR

6.1. Introduction

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

6.7. Conclusion

7. Specifying the Non-Refoulement Duty under Article 3 ECHR

7.1. Introduction

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

7.6. Conclusion

8. Conclusion

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

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