– counter-terrorism activities and measures impinging upon individual rights
resulted in more litigation before the court and more pressure on government
agencies to disclose their practices.
Against this background, this article argues that one possible way to concep-
tualise the CMP is as the product not of a particular historical conjuncture, but
of the encounter between human rights law and what is sometimes described as
the ‘deep’ or ‘secret’ state. Far from illustrating a recalibration of human rights
triggered by some kind of external factor, the CMP would therefore constitute
the speciﬁc human rights law solution to the state’s need to preserve its interests
in the modern human rights era.8This understanding of the relationship between
the CMP and human rights law not only explains the legalisation of the
procedure but also necessarily implies that, if the inter-relationship between
governmental interests and human rights is to operate without seriously threat-
ening the credibility of human rights law as a constraint on power, human rights
law will have to develop so as to normalise the CMP.
The argument adds to the numerous sceptical voices about human rights.9At
its core, it builds on the idea of an inherent tension – a ‘constitutive political
ambiguity’10 – between the state being both the source and subject of human
rights law. Indeed, to the extent that positive human rights entitlements –
whether resulting from a constitutional or legislative document or from the
state’s consent11 to be bound by international/European human rights law – are
themselves contingent upon the continuity of the state, there is necessarily a
breaking point where human rights law will seek to accommodate rather than
undermine particular state interests. But the analysis itself borrows from broader
themes of traditional human rights critiques.12 Indeed, whilst the tension is legally
illustrated by the numerous derogation, exception and restriction clauses typical
of international human rights instruments,13 the point here is broader in that it
8 By ‘human rights law era’ I simply mean an era where rights dominate the legal arena. I do not
intend to reﬂect or pass judgment on whether rights existed before their declaration as positive
legal entitlements. On the former phenomenon, see L. Henkin, The Age of Rights (Oxford: Hart,
2000). On the latter question see, among many, U. Baxi, ‘Reinventing Human Rights in an Era
of Hyper-Globalisation: a Few Wayside Remarks’ in C. Gearty and C. Douzinas (eds), The
Cambridge Companion to Human Rights Law (Cambridge: CUP, 2012).
9 See for example C. Douzinas, The End of Human Rights (Oxford: Hart Publishing, 2000). For a
comprehensive overview and analysis of the different ‘schools’ of human rights critiques see M-B.
Dembour, Who Believes in Human Rights. Reﬂections on the European Convention (Cambridge: CUP,
10 J. Wallach, ‘Human Rights as an Ethics of Power’ in R. A. Wilson (ed), Human Rights in the ‘War
on Terror’ (Cambridge: CUP, 2005) 108.
11 Consent is here understood broadly and could encompass both treaty commitments and norms of
customary international law.
12 See for example F. Megret, ‘Where Does the Critique of International Human Rights Stand? An
Exploration in 18 Vignettes’ in J. M. Beneyto and D. Kennedy (eds), New Approaches to
International Law: the European and the American Experiences (The Hague: Springer, 2012); D.
Kennedy, ‘International Human Rights: Part of the Problem?’ (2002) 15 Harvard Human Rights
Journal 117; M. Koskenniemi, ‘The Effects of Rights on Political Cultural’ in P. Alston, M.
Bustelo and J. Heenan, The EU and Human Rights (Oxford: OUP, 1999).
13 For a discussion of these issues in the context of the European Convention see M. Delmas-Marty
(ed), The European Convention for the Protection of Human Rights: International Protection Versus
National Restrictions (Dordrecht: Nijhoff, 1992).
© 2015 The Author. The Modern Law Review © 2015 The Modern Law Review Limited. 915(2015) 78(6) MLR 913–944