For instance, in a landmark case for human rights, the European Commission of Human Rights ruled that the repressive Greek junta, which had seized power in 1967, had no right to derogate from its human rights obligations, rejecting the junta’s argument that there was a serious threat of a Communist-led overthrow.
Every country’s written constitution allows exceptions to human rights provisions where it is necessary to protect those very rights. Usually, a member of the executive decides where the boundary lies and such an administrative decision can normally be subject to a judicial review.
The criteria would usually include: were there reasonable grounds for the decision or would a reasonable person think the decision made no sense, having no evidentiary foundation?
The Australian has been in a British prison since 2019, after the Ecuadorean embassy in London revoked its asylum for him. The US wants Assange to face trial on charges of conspiring with a US intelligence analyst to obtain classified documents, in violation of the Espionage Act of 1917, publishing them unredacted and gravely putting at risk people in the US intelligence service.
The controversy concerns whether press freedom can be so absolute as to trump the need of a state to conduct in secret (or simply discreetly) a foreign policy without having its personnel and activities disclosed to adversary states. The counterargument is that where US foreign policy violates international law, it is in the public interest to expose it.
Yet its approval rating has jumped to 22 per cent, suggesting a surge in support since the 2021 elections where it won no more than 10 per cent of the vote. AfD supporters argue that Germany is now the subject of a massive and uncontrolled migration of foreigners who cannot be integrated linguistically or culturally.
Last year, the Cologne Administrative Court ruled that the AfD was Verdachtsfall, a “suspicious entity”, because of the unconstitutional agenda of a powerful faction in the party. Germany’s Basic Law upholds the principle of human dignity and non- discrimination on the grounds of race or religion.
From Hong Kong to Germany and the US, each of these human rights cases involved issues of national security that are immensely complex, given the history and international situations of these jurisdictions. It is extremely unlikely that any international court of human rights would wish to second-guess the efforts of the jurisdictions’ courts in adjudicating on whether national security offences were taking place.
The boundary between human rights and national security is at the heart of national governance, and the proper forum of human rights protection should be the jurisdiction’s judiciary – unless, as in the 1967 Greek coup, no reasonable person could conclude that a defence of national security was necessary.
Tony Carty is an emeritus professor at the Beijing Institute of Technology School of Law and will be a visiting professor at the Peking University Institute of the Humanities and Social Sciences in the spring semester of 2024
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