Is the Whole Point of Human Rights Their Universal Character? A, B & C v Ireland and SAS v France
| Author | Abbey Burke |
| Position | Qualified Australian solicitor, currently completing a Master of Laws (Public Law) |
| Pages | 45-56 |
2018
LSE LAW REVIEW
45
Is the Whole Point of Human Rights Their Universal
Character? A, B & C v Ireland and SAS v France
Abbey Burke*
ABSTRACT
The United Kingdom Supreme Court’s 2014 decision in Cheshire West concerned the question
of whether living arrangements for certain mentally incapacit ated persons amounted to a
deprivation of liberty. In finding that the test for whether someone has been deprived of their
liberty is the same for a disabled person as it is for everyone else, Lady Hale reminded the Court
that human rights are for everyone, because ‘[t]he whole point of human rights is their universal
character’.
1
But is there such a thing as universal human rights? This paper considers the
philosophical and institutional complications faced by a universal approach to human rights. It
argues that these philosophical and institutional difficulties are clearly played out in two recent
decisions of the European Court of Human Rights: A, B & C v Irelan d,
2
concerning the
Republic of Ireland ’s restrictions on abortion, and SA S v France,
3
concerning France’s ban o n
face-coverings. It concludes that the Court must not stray too far from a universal approach to
human rights, lest it blot its record of success in calling out violations of rights and protecting
individuals from the illiberal excesses of government.
INTRODUCTION
In the United Kingdom (‘UK’) Supreme Court’s Cheshire West judgment on
whether living arrangements for mentally incapacitated persons amounted to a
deprivation of liberty, Lady Hale reminded the Court that ‘[t]he whole point of
* I am a qualified Aus tralian solicitor, currently comple ting a Master of Laws (Public Law)
at the London School of Economics. Prior to commencing at LSE, I completed a
combined bachelor’s degree in Law and Arts at the University of New South Wales, for
which I received a Distinction average and Honours.
1
2
[2010] ECHR 2032.
3
[2014] ECHR 695.
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