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concerned, however undesirable or dangerous, cannot be taken into
account...”. 16
Therefore, arguments of the “ticking time bomb” kind 17 or claims for balancing the
risk of harm against the alleged dangerousness of the deported person for the
security of the community 18 do not hold water.
The absolute character of those rules, however, does not signify the
elimination of discretion in their application. First of all, human rights – as all other
norms – are cast in linguistic form; and linguistic forms can always give rise to
indeterminacy. 19 Definitions, even clear-cut ones, require interpretation (i.e. whether
a specific behaviour constitutes torture or not) and principles come with
counterprinciples. But more importantly, human rights are not the articulation of an
objective reason or truth – and this is so even for the so-called fundamental rights.
They are the product of a constant clash between different and usually opposing
values. Finally, there is a tendency to re-conceptualize the various opposing values
as a human rights issue. In the case of the principle of non-refoulement, for example,
governments have appropriated human rights language in order to express their
security concerns. 20 So, the argument about human rights’ absoluteness or objectivity
reflects an unattainable aspiration rather than reality. 21
This is very well illustrated in the case of the principle of non-refoulement.
16
Saadi v. Italy, ECtHR (Grand Chamber), Application No. 37201/06, judgment of 28 February 2008, §138,
reaffirming the findings of the Court in the Chahal case; see Chahal v. UK, judgment of 15 November 1996,
ECtHR, REPORTS OF DECISIONS AND JUDGMENTS (1996-V), pp. 1831 et seq. = 23 EHRR, pp. 413 et seq., §§79-81. The
CAT Committee has taken the same approach by stressing that “the test of article 3 of the Convention is
absolute...The nature of the activities in which the person concerned cannot be a material consideration when
making a determination under article 3 of the Convention”; Gorki Ernesto Tapia Paez v. Sweden, Communication
No. 39/1996, UN Doc. CAT/C/18/D/39/1996 (1997), §14.5.
17
Nowak, Manfred, Challenges to the Absolute Nature of the Prohibition of Torture and Ill-treatment, 23 NQHR
(2005), pp. 674-687, at 675. In the US, however, some scholars have called for a relaxation of the prohibition of
torture. For a summary, see Glennon, Michael J., The Present State of Research Carried Out by the English Speaking
Section of the Centre for Studies and Research, in TERRORISME ET DROIT INTERNATIONAL, Centre d’étude et de
recherche de droit international et de relations internationales=TERRORISM AND INTERNATIONAL LAW, Centre for
Studies and Research in International Law and International Relations, 2007, The Hague, Brill, pp. 105-160, at
131-134.
18
But see the Supreme Court of Canada’s assertion that a balancing approach might be admissible in
Manickavasagam Suresh v. Canada (Minister of Citizeship and Immigration), 2002 SCC 1, File No. 27790, §129;
see also Ramzy v. The Netherlands, Observations of the Governments of Lithuania, Portugal, Slovakia and the United
Kingdom, 21 November 2005, available at www.redress.org/publications/
GovernmentintervenorsobservationsinRamzy%20case22November.pdf, §§3.2-3.3.
19
Klabbers, Jan, The Meaning of Rules, 20 INTERNATIONAL RELATIONS (2006), σ. 295-301.
20
See the comments of Moeckli, Daniel, Saadi v. Italy: The Rules of the Game Have Not Changed, 8 HRLR (2008),
pp. 534-548, at 541-542.
21
These observations draw from the following works: Douzinas, Costas, HUMAN RIGHTS AND EMPIRE. THE
POLITICAL PHILOSOPHY OF COSMOPOLITANISM, 2007, New York, Routledge, pp. 59-60; Fish, Stanley, Introduction:
Going down the Anti-Formalist Road, in DOING WHAT COMES NATURALLY: CHANGE, RHETORIC, AND THE PRACTICE
OF THEORY IN LITERARY AND LEGAL STUDIES, 1989, Oxford, Clarendon Press, pp. 1-36; Koskenniemi, Martti, The
Effect of Rights on Political Culture, in Philip, Alston (ed.), THE EU AND HUMAN RIGHTS (2002), Oxford: Oxford
University Press, pp. 99-116.
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