Absolute Rights Some Problems Illustrated

The American Journal of Jurisprudence, Vol. 61, No. 2 (2016), pp.
195–215
doi:10.1093/ajj/auw015
Absolute Rights: Some Problems Illustrated

John Finnis*
Abstract: Joseph Boyle, building on an argument of Elizabeth Anscombe, showed

that absolute (indefeasible, exceptionless) moral norms would, as a set, be incoherent
Downloaded from http://ajj.oxfordjournals.org/ at Main Library of Gazi University on December 9, 2016

and paradoxical, even self-contradictory, unless they are specified in terms, not of
what the forbidden kind of act actually or foreseeably causes, but of the precise intent
with which the act is done. The present article extends the argument to absolute
human rights, such as the right not to be tortured or subjected to inhuman or
degrading treatment (European Convention on Human Rights). The article then
shows that the European Court of Human Rights, by extending that right so that it is
violated by every decision to deport someone where doing so would result in a “real
risk” that the deportee will be subjected to such treatment by or in the receiving state,
has created incoherence of the kind that Anscombe and Boyle pointed to.
Keywords: Human Rights, Moral Absolutes, Immigration
There are some absolute human (or natural) rights, because there are some kinds
of acts that everyone has an indefeasible, exceptionless moral duty of justice not to
choose and do.1 But all those kinds of act are properly defined or specified by
reference to the intention with which the act is chosen and done. Any affirmation
or assertion of an absolute right specified more broadly, so as to prohibit acts
specified by reference to unintended effects of them, will be morally incoherent
and if legally enforced will result in injustice, sometimes at least as grave.2
Part I briefly explains this logic of absolute rights.3 Part II studies a cluster of
notable instances of the confusion and injustice made inevitable, sooner or later,
when that logic is overlooked, in particular4 the main decisions of the European
Court of Human Rights [ECtHR] purporting to interpret art. 3 of the European
* Biolchini Family Professor of Law, University of Notre Dame du Lac; Professor of Law and Legal
Philosophy Emeritus, University of Oxford. Email: john.finnis@law.ox.ac.uk.
1 See John Finnis, Natural Law and Natural Rights, 2d ed. (Oxford: Oxford University Press, 2011)
[NLNR], 126, 213, 224-6, 230, 46. On such duties see Collected Essays of John Finnis, 5 vols. (Oxford:
Oxford University Press, 2011) [CEJF], vol. I, essay 5, pp. 101–2; and essay 12.
2 NLNR, 467; CEJF III: 7, 45, 145n58.
3 While this was being written up for the American Journal of Jurisprudence, Joseph Boyle, the
principal explorer and exponent of this logic (and senior member of our Editorial Board), departed
this life after a short illness. He was in no way responsible for the applications to which the article
seeks to put his findings, but it is offered in grateful tribute to his work on this and the many other
philosophical enterprises on which I was privileged to think, work and write as his co-author and a
beneficiary of his zest for argument and for honesty and logical precision in argumentation.
4 The article updates and expands the summary critique in CEJF III: 45, 145n158 and various
elements of the article cited in n6 below.
ß The Author 2016. Published by Oxford University Press on behalf of University of Notre Dame. All rights
reserved. For Permissions, please email: journals.permissions@oup.com.
196 J. Finnis
Convention on Human Rights [ECHR],5 like other parts of that Convention, as

“a living instrument.”6
I. The Logic of Exceptionless Norms/Precepts

Norms that absolutely (“exceptionlessly;” “whatever the circumstances”) direct us
to exclude from deliberation and choice any and every act (or deliberate omission)
of a certain type have a logic that needs to be kept in mind by judges interpreting
any instrument that articulates such a norm.7

Some philosophers and jurists hold, and some deny, that there are absolute
moral norms (true moral propositions picking out and banishing from deliber-
ation certain types of acts specifiable in non-moral terms8). But all should agree
that each such norm must specify the type of act (the choices the norm purports
to exceptionlessly forbid) by reference to the intentions (object(s), purpose(s))9 with
5 ECHR, Art. 3:
Prohibition of Torture. No one shall be subjected to torture or to inhuman or degrading
treatment.
6 On the ECtHR’s “living instrument” doctrine, see John Finnis, “Judicial Law-Making and the
Living Instrumentalisation of the ECHR,” in Lord Sumption and the Limits of the Law, ed. Nick
Barber, Richard Ekins, and Paul Yowell (Oxford: Hart, 2016), 73-120, at 82-93.
7 See Joseph M. Boyle, “Intention, Permissibility, and the Structure of Agency,” American Catholic
Philosophical Quarterly 89 (2015): 461-78; “On Defining ‘Side Effects’: A Response to Adam Bailey,”
American Journal of Jurisprudence 56 (2011): 169-82, and other relevant works of his cited therein;
and see n14 below.
8 See John Finnis, Moral Absolutes (Washington, DC: The Catholic University of America Press,
1991), 2: “the absolute moral norms have the following characteristic: the types of action they specify
are identifiable, as potential objects of choice, without reliance on any evaluative term which pre-
supposes a moral judgment on the action. [fn: In ‘Never intentionally kill the innocent’, the term
innocent is doubtless in some sense ‘evaluative’, but the evaluation presupposed (if any) is not an
evaluation of the choice and act of killing in those circumstances.]”
9 “Intention” in this context includes what in some contexts is distinguished from “intention” as
“object,” the “object of the act.” That distinction is no more and no less than between further-out and
closer-in intentions: see John Finnis, Aquinas: Moral, Political and Social Theory (Oxford: Oxford
University Press, 1998), 142n, 148n, 165-6, 277. In the 1993 Encyclical Veritatis Splendor, consist-
ently with all this, the truth of exceptionless moral norms is affirmed and the norms in question are
identified as forbidding kinds of acts by reference to their objects (even when the intentions with
which the acting person chooses the forbidden object(ive) are good):
The morality of the human act depends primarily and fundamentally on the ‘object’ rationally
[whether reasonably or unreasonably] chosen by the deliberate will . . . In order to be able to
grasp the object of an act which specifies that act morally, it is therefore necessary to place
oneself in the perspective of the acting person. The object of the act of willing is in fact a
freely chosen kind of behavior. . . . By the object of a given moral act, then, one cannot mean
a process or an event of the merely physical order, to be assessed on the basis of its ability to
bring about a given state of affairs in the outside world. Rather, that object is the proximate
end of a deliberate decision which determines the act of willing on the part of the acting
person. (Veritatis Splendor, no. 78)
This is well understood in our society to the extent that most people still easily grasp the distinc-
tion between giving painkillers with the object of killing the patient and giving the same dose with the
object of deadening the pain—in both cases with the same further-out intention of relieving suffer-
ing. It is poorly understood to the extent that people assert that getting a patient dead by omitting
nutrition and hydration cannot be murder. The Catechism of the Catholic Church (1997) is confused
in more than one way in attempting to explain how object differs from intention by saying “1751.
Absolute Rights 197
which the conduct or behaviour involved in the act is chosen (and carried out).10
That is: however benevolent and beneficial one’s further ends, one must not have
a purpose (intention, object) of engaging in an activity, or bringing about a state of
affairs, of the type specified and condemned by that exceptionless moral norm.11
If a system of moral thought acknowledges the truth of such absolute norms—or
if a legal system (or treaty) accepts or lays down and includes such norms—it can
avoid incoherence only by recognising that, as absolutes, they are restricted to
acts12 intended to cause the harm against which the norm seeks to protect. At
least in their absolute, indefeasible force, such norms cannot rationally be taken
more broadly, that is, cannot be understood to extend to the exceptionless pro-

hibition also of the unintended causing of the same sort of effects, or the unin-
tended creation of a risk that effects of that sort will occur. In short: logic requires
that a norm’s absoluteness narrow, not broaden its scope as an absolute.13
The object chosen is a good toward which the will deliberately directs itself. . . . 1752. In contrast to
the object, the intention resides in the acting subject . . . ”
10 Some argue that the specification could be by reference to actions as opposed to omissions. But
this goes against the entire movement of modern criminal law, which rightly accepts that moral
responsibility extends to deliberate omissions intended to result in effects which the chooser has some
obvious responsibility and capacity to avert (the parent who deliberately starves his child, or the co-
pilot who deliberately omits to open the cockpit door to let the captain back in and save the aircraft
and passengers from the crash intended by the co-pilot, etc.). Others attack the relevance of intention,
and the distinction between intended and side effects, but do so on the assumption that prohibitions
such as those on terror bombing are not absolute but, instead, articulate defeasible presumptions of
disproportionality in bad effects: notably T.M. Scanlon, Moral Dimensions: Permissibility, Meaning,
Blame (Cambridge, MA: Harvard University Press, 2008), ch. 1 (“The Illusory Appeal of Double
Effect”), especially 27-29 for the rejection of absolute norms. (On the distinction between intended
means and side effects, Scanlon, ibid., 18, was mistakenly persuaded that in Judith Thomson’s
“Loop” trolley case I intend the death of the one man in the loop as a means to my saving the five
on the mainline, when I divert the trolley onto the loop to save the five, knowing that they would later
be killed by the returning trolley unless it were stopped by hitting the one. In truth the striking of the
one is a bad side effect of my salvific diversion, a side effect which has the further but welcome side
effect of saving the five from (so to speak) the trolley’s second strike.
11 Torture, as defined in the U.N. Convention against Torture or Other Cruel, Degrading or
Inhuman Treatment (1984), exemplifies such an act-specification in terms of object, i.e., of what
is intended (=purposed) as a means:
For the purposes of this Convention, the term "torture" means any act by which severe pain
or suffering, whether physical or mental, is intentionally inflicted on a person for such pur-
poses as obtaining from him or a third person information or a confession, punishing him for
an act he or a third person has committed or is suspected of having committed, or intimidat-
ing or coercing him or a third person, or for any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.
Note that “intentionally,” by itself, without the “for such purposes as,” would not necessarily
connote intent or purpose, since in idiomatic English it is contrasted with “unintentionally,” which
connotes accident or mistake or lack of foresight. See CEJF II: 142, 184, 190.
12 And, in line with the intention-based focus of the core of morality, the norms extend to exclude,
equally exceptionlessly, every choice to engage in such acts, even choices (“conditional intention”) to
do so in some future circumstances if they occur, as well as every choice to counsel, incite, encourage
or procure that someone else perform such an act—complicity (discussed below at n31 and text at
n23). On conditional choices, see “Conditional and Preparatory Intentions” in CEJF II: 220-34.
13 This point was noticed, but expressed too weakly, by Lord Bingham in R (Pretty) v. DPP [2001]
UKHL 61, [2002] AC 800 at para. 13: “the absolute and unqualified prohibition on a member state
inflicting the proscribed treatment requires that ‘treatment’ should not be given an unrestricted or
198 J. Finnis
If the types of states of affairs exceptionlessly (indefeasibly) excluded by the

norm from choice (= absolutely prohibited as options) extended beyond what is
chosen-as-intended (= chosen as a means or an end) and included unintended
effects of the chosen behaviour—call them side effects—the norm would neces-
sarily entail incoherent (practically contradictory) directives. For the side effects
caused by deciding (i) not to make and carry out an option because it is of an
exceptionlessly excluded/prohibited type, and (ii) to therefore choose some alter-
native option, are effects that may well include states of affairs of the very kind
that (on this extended, cause-not-intention understanding of the exceptionless
norm) it is exceptionlessly prohibited to cause (even as only a side effect). (And this

is true even when one restricts one’s attention to the foreseeable or even the
foreseeably probable). So it would inevitably be sometimes impossible to
comply with such a directive: it would be a directive both to abstain from a certain
type of harm-causing act and to make no choice which results (even as a side
effect) either in a real risk that an act of that type will be performed by others,
and/or in a real risk that persons will by some other causality suffer harm of the
very the kind the norm seeks to prevent.14 An ethics including such absolutes
would be paradoxical, incoherent.
A legal system might technically avoid this sort of incoherence by adding to its
exceptionless norm an artificial restriction on the type of forbidden act, such as
the Torture Convention’s restriction to actions of “public officials.” But the
ECtHR has ensured that the ECHR’s anti-torture provision, art. 3, as the
Court reads it, includes no such restriction. The Court has done so by extending
“subjecting to treatment,” so that art. 3 concerns (directly or indirectly) conduct
by anyone anywhere, and (as we will see)15 extends even to circumstances de-
tached from conduct, such as the non-availability of palliative care, when these
circumstances occasion or result in serious suffering or degradation. So the
ECtHR’s reading of art. 3 was doomed by its logical overreach to be, in its
extravagant meaning.” This is weak, because tautologous, since meaning is never unrestricted and
should never be ascribed or identified extravagantly; but one can see what he was—correctly—driving
at. (Unfortunately, in the next paragraph he accepts without criticism the ECtHR holding in D v. UK
(1997) 24 European Human Rights Reports [EHHR] 423, a holding discussed below at n50) which
extends the line of cases begun in Soering, n23 below) that there is art. 3 “treatment” when the state’s
“direct action against” D will have “the inevitable effect” of severely increasing his suffering (even
though the suffering results from his disease, not from state action intended only to remove him from
the UK because of his bad criminal record and bad immigration history (with the wholly unintended
side effect of terminating his (NHS) medical treatment).)
14 Joseph Boyle found this logical issue about exceptionless prohibitions first plainly articulated in
modern philosophy by G.E.M. Anscombe, Ethics, Religion, and Politics (Oxford: Blackwell, 1981),
58. In recent work, he commended Robert D. Anderson, “The Moral Permissibility of Accepting Bad
Side Effects,” American Catholic Philosophical Quarterly 83 (2009): 255 at 262-3, who shows this,
with some reference to the attempt by early Jainist philosophy or religion to abstain from any and
every causing of harm. See Joseph M. Boyle, “Intention, Permissibility, and the Structure of Agency,”
American Catholic Philosophical Quarterly 89 (2015) 461 at 477-78. On the points made in this
paragraph, see generally John Finnis, Fundamentals of Ethics (Oxford: Oxford University Press;
Georgetown University Press, 1983), 112-20; Moral Absolutes, 67-73.
15 See at n50 below.
Absolute Rights 199
implications, incoherent. And that incoherence, as we shall see, has already been
richly exemplified.
Before examining the incoherence of the relevant ECtHR doctrine, I offer three
abstract hypotheticals that may help to clarify why such incoherence is ineluctable
once the narrow intention criterion is replaced by a broad criterion such as caus-
ality-plus-foresight/foreseeability. (1) Even if preventing P from entering a country
or domain causes by side effect a real risk that he will be killed outside by his
enemies, it is nonetheless irrational not to compare with that risk the real risk that
if he is allowed to enter he will kill his enemies Q and R and S. . . . So the norm
absolutely prohibiting intentional killing cannot rationally be extended to pro-

hibiting intentionally doing an act knowing that it creates a real risk of intentional
killing. (2) Judges choosing to impose a sentence of imprisonment are well aware
that doing so imposes on the convict a real risk of abusive, degrading treatment
(e.g., his rape in prison by other prisoners); but letting the convict go free will
create a real risk that he (and others) will commit offences that his fellow-citizen
victims would otherwise have been spared; so sentencing to imprisonment is not
ruled out by an absolute norm against subjecting anyone to degrading treatment
(art. 3 ECHR), though it would be unjust not to make some real effort to reduce
the risk of abuse. (3) It was reasonable to lift the old common law absolute ban on
defendants giving evidence at their criminal trial, even though it is obvious to all
that allowing them to do so creates a real and indeed very substantial risk that
there will as a result—along with many just acquittals—be perjuries (and many
more of them) of the kind absolutely forbidden by a moral and parallel legal
norm, not to mention subsequent crimes by and victims of those whose perjuries
allow them to escape just conviction.
Incoherence of the kind illustrated in the preceding paragraph follows ineluct-
ably from the ECtHR’s fundamental doctrine that because art. 3 is absolute, it
exceptionlessly prohibits causing a real risk of conduct16 or effects17 of a kind
referred to in the article (torture, degradation, inhuman conditions . . .). Part II
below identifies some of the cases exemplifying and displaying this ineluctable
consequence.
The ECtHR has compounded the incoherence. For, again ignoring the logic of
moral absolutes, the Court treats art. 3’s force (namely, as exceptionlessly over-
riding) as a basis for answering the question: “What is art. 3’s scope?” So the Court
has given exactly the wrong answer to the question, “Is art. 3 a narrow, precise
norm, or an expansive one, catching many kinds of action and omission?” It has
inferred that the article’s scope must, precisely by reason of the article’s force, be
expansive. The inexorable result of this fallacy was before long reached in relation
to the ECtHR’s decision in N v. UK. Made visible by that decision is incoherence
of the kind that the logic of exceptionless norms makes inevitable.
Art. 3 makes perfect sense as an absolute norm, but only if it is understood as
forbidding any and every intentional subjection of someone to torture or in-
human or degrading treatment. It is not a coherent norm if it requires absolute
16 E.g., Chahal v. UK (22414/93) 15 November 1996 (Grand Chamber [GC]), n37 below.
17 E.g., D v. UK 24 EHHR 423, (30240/96) 2 May 1997 (Chamber), n50 below.
200 J. Finnis
avoidance of the subjecting of anyone to the risk of being so treated, for this
(besides being a norm whose judicial imposition flouts the Rule of Law) is not a
norm on which anyone can coherently act. The actions of the ECtHR itself, in
relation to art. 3 itself, exemplify this road to incoherence. While the story could
be told more briefly, its details have some jurisprudentially instructive significance.
II. The ECtHR’s Road to Incoherence

The original public meaning of Art. 3 ECHR certainly was and is this: Whatever

the circumstances, every choice that intends (i.e., includes in the proposal it
adopts) the subjecting of someone to torture, or to inhuman or degrading treat-
ment, is absolutely, i.e., exceptionlessly, indefeasibly, prohibited. That is, the art-
icle prohibits every choice to do or omit something in order that—with intent
that18–someone be subjected to some such treatment. That meaning, with that
exceptionless force, is confirmed by art. 15(2)’s stipulation that art. 3 (like arts. 2,
4(1) and 7)19 cannot be derogated from (that is, set aside, even temporarily) on
the ground that the exigencies of war or public emergency, even emergency
threatening the life of the nation, call for it to be set aside.
The ECtHR has transformed that original public meaning by using art. 3 to
create a whole system for compelling ECHR member-states to grant political and
non-political asylum—or right of entry and abode, with wide protection from
expulsion.20 In doing so, the Court has defied (or been unconscious of ) the logic
of absolute norms. For the purposes of the present article it is not necessary to
point out that in doing so it has also defied the intentions of the signatories of the
ECHR, intentions very deliberately formed and plainly indicated in the nearly
contemporaneous adoption of the UN’s Convention on the Status of Refugees.
The general rationale of this use, or misuse, of art. 3 ECHR was stated by the
ECtHR in Pretty v. UK (2002), a case about assistance in suicide, far removed
from migration and asylum, and from torture:
[1] . . . art. 3 has been most commonly applied in contexts in which the risk to the
individual of being subjected to any of the proscribed forms of treatment emanated
from intentionally inflicted acts of state agents or public authorities. [2] It may be
described in general terms as imposing a primarily negative obligation on states to
refrain from inflicting serious harm on persons within their jurisdiction. [3]
However, in light of the fundamental importance of art. 3, the court has reserved to
18 See n50 below.
19 Art. 2 affirms the right to life, art. 4(1) the right not to be enslaved, and art. 7 nulla poena sine lege.
20 This regime is not the only doctrinal structure created by the Court on the back of art. 3 and
“living instrument” methodology. A concertina-like range of state duties to investigate serious crimes
or even civil wrongs (whether committed by public officials or not), and to compensate persons for
failures to sufficiently carry out these duties, is now growing alongside and (despite some judges’
protestations) in competition with classic principles of tort: see the discussion of authorities and
doctrine in Commissioner of Police of the Metropolis v. DSD [2015] EWCA Civ 646 especially paras 44
– 46, 50 (Dyson MR for the Court). But the ECtHR accepts that these affirmative (positive) art. 3
duties (even if non-derogable under art. 15) are not absolute (but rather circumstance-relative in
strength), whereas its asylum regime, discussed below, is constructed largely on the basis of art. 3’s
negative and therefore exceptionless (“absolute”) obligations.
Absolute Rights 201
itself sufficient flexibility to address the application of that article to other situations that
might arise.21
This self-granted “reserving to” the judges of an open-ended power—power to
hold that art. 3 applies (as) extensively (as they determine) because so import-
ant—is really a matter of the judges taking a power. What they can legitimately
say is important is this: that inhuman misery and degradation be prevented or
alleviated by those responsible for doing so. It is very improbable that those who
drafted and accepted art. 3 (along with art. 15’s prohibition of any departure from
or qualification of it, even to preserve the life of the nation) intended thereby to
impose—or would have accepted that it could extend to imposing—an open-

ended, judicially enforceable set of positive responsibilities of the state to provide
protection, residence rights, food, housing and healthcare (not to mention com-
pensation for injuries, assistance in suicide, and much else). It is made even more
improbable by the fact that art. 3 makes no reference to the competing individual
or communal interests and rights that qualify these positive obligations, while the
obligations entailed by rights or interests stated in later articles (such as art. 8(1))
are all carefully qualified or defined by competing considerations (such as those
listed in art. 8(2)).22
The ECtHR did not launch its “living instrument” extension of art. 3 until
nearly forty years after the ECHR’s entry into force in 1953. Characteristically,
the Court’s first move was much more cautious than is usually noticed: its essential
reasoning is largely defensible, and does not provide the support it has subse-
quently been taken to give to the regime of asylum law erected “on the basis of“
art. 3.
A. Soering (1989)
The decision in Soering v. UK23 was—in substance if not in all its articulations—a
decision that remained at least in large part within, and respectful of, the rational
21 Pretty v. UK (2002) 35 EHRR 1 at para. 50. Notice that sentence [1] already stretches art. 3
beyond the paradigm of torture. The paradigm or central case of torture is not of intentionally doing
something from which a risk “emanates” that X will suffer great pain. Torture properly speaking is:
doing something that causes X great pain with intent that it cause X that pain. There can be little
doubt that the word “treatment” in art. 3 was likewise intended to mean, and meant, ways of dealing
with (“treating”) a person that are intended to (= chosen in order to) degrade or dehumanize him –
and not simply, as [1] claims, intentionally doing something from which, even contrary to the acting
person’s (official’s, state’s) intentions and hopes and precautionary efforts, there emanates a risk that
X will undergo degradation or dehumanization as a result of Y’s acts or of some non-human causality
(unpleasantly lethal or disfiguring disease, for example).
22 Art. 8 ECHR:
Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic wellbeing of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.
23 Soering v. UK (14038/88) 7 July 1989 (Plenary), para. 102.
202 J. Finnis
requirements of an exceptionless norm. The ECtHR ruled that for the UK to

extradite the fugitive German citizen Soering to the US—to face charges for
murders committed by him in the US—would violate art. 3 by subjecting him
to inhuman treatment, since conviction in the US might result in a long period on
death row.24 Extradition is a process for surrendering someone to a foreign state25
so that he can and will be subjected to the legal processes and process-based
treatment of the requesting state. So in this case extradition included the condi-
tional purpose (intent) of enabling Soering to be sentenced to death (if, that is to
say, he were to be convicted of capital crime and sentenced to death). The pur-
poses (intentions) of the UK26 were bound to track (some of ) those of the

requesting and receiving state, and included the conditional intent that he be
punished in any manner authorised in that state—which in a case such as this
includes a manner that the ECHR judged inhuman. We can even describe this
conjunction or overlapping of intentions/purposes as complicity of the UK in the
inhuman US treatment, a kind of complicity that involves mens rea (“guilty
mind”). It involves no element of “strict” liability (liability for consequences
one causes, more or less regardless of whether one intended them).
So, if this rather stringent understanding of what distinguishes extradition from
simple deportation, expulsion, or transfer, is correct, Soering is, in itself, a limited
decision, and is broadly reasonable.27
24 The ECtHR could not and did not say that capital punishment itself is a violation of art. 3, for
even the “abolition of the death penalty” by art. 1 of Protocol 6, adopted in 1983 (and amending art.
2 of the ECHR itself ), is subject to exception “in time of war” (art. 2 Protocol 6).
25 Thus the key interpretative sentences in Soering (para. 88) are:
. . . were a Contracting State knowingly to surrender a fugitive to another State where there
were substantial grounds for believing that he would be in danger of being subjected to
torture, however heinous the crime allegedly committed. Extradition in such circumstances,
while not explicitly referred to in the brief and general wording of Article 3 (art. 3), would
plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this
inherent obligation not to extradite also extends to cases in which the fugitive would be faced
in the receiving State by a real risk of exposure to inhuman or degrading treatment or
punishment proscribed by that Article (art. 3). (emphases added)
By appealing to the “spirit and intendment” of art. 3, rather than to “ordinary meaning” as
required by the Vienna Convention on the Law of Treaties, the ECtHR implicitly concedes that it is
departing from the ECHR as intended and meant by its signatories. (The idea of interpreting by
reference first and foremost to “spirit” has been embedded in the doctrine of the European Court of
Justice (the judicial organ of the European Union) since 1964.)
26 This is settled not by the hopes and desires of UK officials involved in the extradition, but by the
rational content of the plan proposed by the US extradition request and adopted by the UK’s
agreement accordingly to extradite.
27 This assumes its arguable premise that the delays in execution that are typical of American capital
punishment systems are not merely very regrettable, and even obnoxious, but constitute a subjection
to inhuman treatment, even if they typically are not intended by the authorities, and result not from
cruel state indifference or neglect but mainly from a succession of appeals and reviews instigated by
the convict and/or humanitarian interest-groups with a purpose (understandably) of delay. As to
“inhuman treatment”: the ECtHR decision baptising “living instrument” was Tyrer v. United
Kingdom [1975] 1 EHHR 524 (4451/70), 21 February 1975 (Plenary), in which Judge Sir Gerald
Fitzmaurice’s strenuously argued dissent is usually laughed off—evaded—with a flip allusion to his
confession that he had been caned at school. But there is little reason to doubt that he was right in
protesting that the drafters of art. 3 not unreasonably regarded corporal punishment of the moderate,
Absolute Rights 203
B. Cruz Varas (1991)

In any event, the judicial extending and refashioning of art. 3 began to reveal its
radical character within two years, in Cruz Varas v. Sweden.28 For this case was
about not extradition but expulsion. Ignoring the consequent difference in the
intentionality of the removing state, the plenary ECtHR held that art. 3 applied
equally to expulsion, since this too was “action which has as a direct29 conse-
quence the exposure of an individual to proscribed ill-treatment.”30 The Court in
Soering had inserted into its judgment this broad formulation, in which causality
(“direct consequence”) silently replaces complicity in the proper sense (intent to

assist). And now the Court in Cruz Varas took up this formula, and by treating it
as fundamental left all trace of real complicity behind. As is usual if not universal
in ECtHR jurisprudence, profound shifts of doctrine occur in inconspicuous
phrasing, and then are made without any acknowledgement of their signifi-
cance31–of their substantial implications for the law, and their substantial conse-
quences for the future of ECHR states, their governments and their peoples.
The extension of art. 3 carried forward in Cruz Varas fails to answer the UK’s
principal argument in Soering (an argument the Soering judgment buries in its
fleeting report of six UK arguments, and then evades):
it would be straining the language of art. 3 intolerably to hold that by surrendering a
fugitive criminal the extraditing State has ‘subjected’ him to any treatment or punish-
ment that he will receive following conviction and sentence in the receiving State.32
cautiously (and discreetly) administered kind in force for juveniles in the Isle of Man in 1950 and
1970 was not at all an instance of “subjecting someone to inhuman treatment.”
28 Cruz Varas v. Sweden (15576/89) 20 March 1991 (Plenary). Hector Cruz Varas was one of about
30,000 Chilean citizens whom Sweden received after the Pinochet coup against the Allende govern-
ment in 1973. Sweden granted asylum to “a large proportion” of them (para. 51) but refused asylum
to him despite his increasingly detailed allegations of torture; he was deported to Chile in October
1989 (more than year after the lifting of the state of emergency; a plebiscite rejection of Pinochet’s
rule; the commencement of return of exiles; and the initiating of democratic processes leading to
constitutional amendment in July 1989). Cruz Varas’s claims to have been tortured were in the end
treated by the ECtHR as not credible, and his application to the ECtHR under art. 3 was dismissed
on the facts.
29 On the inherent ambiguity of the term “direct” (in relation to actions, causes, consequences, etc.)
– between intended and (not intended but) causally immediate,” see Finnis, Grisez and Boyle,
“’Direct’ and ‘Indirect’ in Action” (2001), in CEJF II: 235-68.
30 Cruz Varas, para. 69, citing Soering, para. 91. On the facts, an 18: 1 majority held that this
expulsion did not expose Cruz Varas to a real risk of torture etc., in Chile and so did not violate art. 3.
The nine judges who dissented on a more procedural aspect of the case argued that Soering itself
extended to “extradition and expulsion,” and that “It cannot be otherwise, since the Convention
provides for a real and effective protection of human rights for all persons present in the member
State; their governments cannot be permitted to expose such persons to serious violations of human
rights in other countries.” Here “expose” equivocates between intention and effect. So, to the extent
that it refers to side effects, the passage is a petitio principii—that is it begs the question, in the strict
sense of that phrase: it uses its conclusion as a premise, and is thus emptily circular as reasoning.
31 “70. Although the present case concerns expulsion as opposed to a decision to extradite, the Court
considers that the above principle also applies to expulsion decisions and a fortiori to cases of actual
expulsion.”
32 Soering, at para. 83.
204 J. Finnis
The linguistic strain is tolerable when, as in Soering, there is complicity—intent

to assist, say, torture.33 But when (a) complicity is replaced by efforts to avert an
evil considered to be possible (really possible) rather than probable, and (b) the
action that happens to have the side effect of making (as one necessary causal
condition among others) that evil possible is an action (removal out of our coun-
try) motivated only by urgent concern to protect the rights of citizens of the
expelling state, then (c) the now ignored UK point shows its truth.
For it is impossible to say that “the ordinary meaning to be given to the words
[‘to subject to torture . . .’] in their context”34 extends to a case where the expelling
state has no complicity in the receiving state’s past or future possible misdeeds

but, rather, has urgent rights-based reasons for the expulsion. For instance, it
would be unreasonable to say that (to adapt the facts in Chahal)35 the UK sub-
jected or was complicit in subjecting Chahal to torture . . . contrary to art. 3 if, in the
event and in line with the assurances extracted by the UK from India, he was left
unmolested by India after his expulsion from the UK and return to India. And it
would be absurd to say so if, in the event, he was unexpectedly welcomed by a
new government with garlands and honour. But in cases where there is no com-
plicity, the Court’s doctrine has these implications.
There will of course be many cases where the probability or gravity of the bad
side effects make it unreasonable and unjust to incur them when the intended
good effects are to some extent uncertain and the risk to citizens of the expelling
state is low. But in considering this, one has left behind the indefensible absolute
and is in the zone where the criterion is relative to proportion and disproportion,
the Golden Rule, commitments, reciprocity, and so forth.36
C. Chahal (1996)
Chahal v. United Kingdom37 gave a definitive ruling that amounts to this: an
expelling state is liable under art. 3 even though it is in no way complicit in
any possible torturous or inhuman intentions of the receiving state. The UK
actively and (it seems) bona fide sought (and received) assurances and reassurances
that Chahal “would have no reason to expect to suffer mistreatment of any kind
at the hands of the Indian authorities”;38 for the UK wished to deport him not in
33 Or perhaps also intention’s functional rough equivalent, recklessness: knowledge of probability
along with an unwarrantable (“reckless”) inattention to the reasons for trying to avert the evil or to
avoid making it possible. Soering-type extradition is, of course, near the outer margins of complicity
in the punishments legally available, but is I think within those margins. What counts as complicity
may come into focus now that, 25 years later, the courts are resorting to the presence or absence of
complicity as a basis for limiting the reach of art. 3 ECHR, in face of claims that it imposes on a state
not only (A) a duty not to torture etc. and (B) a duty not to expel in face of real risk of torture etc. but
also (C) a duty to investigate alleged breaches by its agents of the type-(B) duty (which could also
mature into (D) a duty to investigate alleged breaches of the type-(C) duty . . .): Al-Saadoon v. Defence
Secretary [2016] EWCA Civ 811 paras. 138, 142 (no type-(C) duty unless the alleged breach of the
type-(B) duty involved at least complicity in the alleged type-A breach).
34 Vienna Convention on the Law of Treaties, art. 31(1).
35 Chahal, n37 below.
36 And see part III below.
37 Chahal v. UK (22414/93) 15 November 1996 (Grand Chamber).
38 Chahal, para. 35.
Absolute Rights 205
order to advance any purpose of India but exclusively to protect the UK’s own
citizens (and others in the UK) from bad consequences (including human rights
violations) really possible at the hands of Chahal or his accomplices if he were not
deported. But the plenary ECtHR held that, nevertheless, he must not be de-
ported. The deportee’s activities in the expelling state, “however undesirable or
dangerous, cannot be a material consideration.”39 The extreme implications of the
Chahal decision became explicit in Saadi v Italy (2008).
D. Saadi (2008)

In Saadi v. Italy,40 the UK intervened to argue (in effect)41 that where a removing
state (1) had no intentions of the kind prohibited by art. 3, and (2) had no
complicity in any intentions of that kind on the part of the receiving or any
other state, and (3) had sought and obtained assurances from the receiving state
that it too had no such intentions and forbad them, and (4) was proposing to
remove the foreign national of the receiving state exclusively to protect the rights
of persons in the removing state, rights – especially the right to life under art. 2—
that were at real risk from the presence of the deportee, then (5) its removal of
him need be no violation of art. 3. The UK argument was, in substance, that once
intention and complicity (intention or recklessness) are excluded, there rationally
remains only a comparison of risks of bad consequences of the kind which art.
3 seeks to avert; outside the zone of intention (complicity), the reach and force of
art. 3 cannot be absolute but rationally must be relative to comparative risks in the
various possible circumstances.42 This sound argument was brushed aside or
39 Chahal, para. 80.
40 Saadi v. Italy (37201/06), 28 February 2008 (GC).
41 See Saadi, paras. 119 -122.
42 The UK’s argument was summarized by the Court:
120. It was true that the protection against torture and inhuman or degrading treatment or
punishment provided by Article 3 of the Convention was absolute. However, in the event of
expulsion, the treatment in question would be inflicted not by the signatory State but by the
authorities of another State. The signatory State was then bound by a positive obligation of
protection against torture implicitly derived from Article 3. Yet in the field of implied positive
obligations, the Court had accepted that the applicant’s rights must be weighed against the
interests of the community as a whole.
121. In expulsion cases the degree of risk in the receiving country depended on a speculative
assessment. The level required to accept the existence of the risk was relatively low and
difficult to apply consistently. Moreover, Article 3 of the Convention prohibited not only
extremely serious forms of treatment, such as torture, but also conduct covered by the rela-
tively general concept of “degrading treatment”. And the nature of the threat presented by an
individual to the signatory State also varied significantly.
122. In the light of the foregoing considerations, the United Kingdom argued that, in cases
concerning the threat created by international terrorism, the approach followed by the Court
in Chahal (which did not reflect a universally recognised moral imperative and was in contra-
diction with the intentions of the original signatories of the Convention) had to be altered
and clarified. In the first place, the threat presented by the person to be deported must be a
factor to be assessed in relation to the possibility and the nature of the potential ill treatment.
That would make it possible to take into consideration all the particular circumstances of each
case and weigh the rights secured to the applicant by Article 3 of the Convention against
those secured to all other members of the community by Article 2. Secondly, national-security
considerations must influence the standard of proof required from the applicant. . . .
206 J. Finnis
overlooked by the ECtHR in a judgment notable for its viciously circular refusal
to engage with the UK argument that art. 3 cannot rationally be wide, in the sense
of: absolute across the full range to which the Court’s risk-not-intent doctrine has
extended it. The Court’s unresponsive response was simply to refer, repeti-
tiously,43 to the “absolute nature of art. 3.”44
But that wide absoluteness is sets up the logical problem, rather than solves it.
The wide interpretation supported or accompanied by the mantra “art. 3 is ab-
solute” entails moral (and legal doctrinal) incoherence in, at least, any circum-
stances where choosing non-removal imposes on citizens of the would-be
removing state real risks of inhuman treatment or death broadly equivalent to

or greater than the risks of inhuman treatment imposed on the persons removed
because of the bad dispositions of official or other45 persons in the receiving state
(or in some eventual receiving state).
E. Two Paradigm Consequences

The force of the objection, and the self-imposed incapacity of the Court to
respond to it, can now be illustrated in two distinct paradigm cases. One is
more directly in line with the Soering – Chahal – Saadi sequence, in that it
concerns causing people to be at risk of being badly treated by officials or
others with bad intentions: Hirsi Jamaa v. Italy (2011). The other lacks any
element of risk of evil actions, but concerns expulsions that make it certain
123. Lastly, the United Kingdom Government emphasised that Contracting States could
obtain diplomatic assurances that an applicant would not be subjected to treatment contrary
to the Convention. . . .
The argument is weak when it moves, in para. 120, from [to paraphrase] “not a principal in the
violation of the absolute negative obligation” to “therefore under only a positive (and thus non-
absolute) duty, to protect against violation.” In truth, the absolute negative duty extends to conspir-
ators, agents and others complicit in the intention to violate the negative absolute. And there must be
some non-absolute negative duties not to do what, as a foreseen side effect, will cause or risk causing
the violation. In other words, the argument (as reported by the Court) failed to come to grips with the
fundamental issue: the distinction between what is intended and what is not intended but foreseen to
be a cause of the same harm. Side effects of one’s acts are not outside one’s responsibility. But the
norms for assessing that responsibility are not the same as the norms governing what one does and
causes, intending to do so: CEJF II: 195-6.
43 Chahal, paras 127, 137, 138, 140.
44 Chahal, para. 138:
. , , . Accordingly, the Court cannot accept the argument of the United Kingdom
Government, supported by the [Italian] Government, that a distinction must be drawn
under Article 3 between treatment inflicted directly by a signatory State and treatment that
might be inflicted by the authorities of another State, and that protection against this latter
form of ill-treatment should be weighed against the interests of the community as a whole. . . .
Since protection against the treatment prohibited by Article 3 is absolute, that provision
imposes an obligation not to extradite or expel any person who, in the receiving country,
would run the real risk of being subjected to such treatment.
45 “Owing to the absolute character of the right guaranteed, the Court does not rule out the
possibility that Article 3 of the Convention may also apply where the danger emanates from persons
or groups of persons who are not public officials.” Hirsi Jamaa, para. 120. The phrase “does not rule
out the possibility” is calculated to mislead, for provided the danger (risk) is real and the government
unable to obviate it, the Court clearly regards art. 3 as applicable: ibid. para. 120. And its case law
illustrates this abundantly: start the list with D v. UK (1997) (n50 below).
Absolute Rights 207
that the person expelled will die in inhuman or at least terrible misery: N v. United
Kingdom (2008). The Court’s decision in each case has resulted, quite foreseeably,
in countless horrible deaths that the opposite decision would have averted. But the
two decisions are so obviously irreconcilable with each other that the Court as
such has adopted a politic silence about their inter-relationship, preferring to
articulate no hint of awareness or concession that there is a problem, no hint
of a solution.
F. Hirsi Jamaa (2012)

On 6 May 2009, following an agreement with the Libyan government (at that
time an effective one), Italian officials intercepted three vessels on the
Mediterranean high seas 35 miles south of the Italian island of Lampedusa; on
board were over 200 Somalis and Eritreans seeking to reach the Italian coast; all
were taken on Italian ships back to Libya. Twenty-four of these 230 applied to the
ECtHR; some of these applicants were later (before the Saadi judgment) granted
refugee status either by UN or by Italian authorities. The ECtHR Grand
Chamber on 23 February 2012 unanimously held that Italy’s actions not only
violated ECHR Protocol 4 (prohibiting “collective expulsion of aliens”), but also,
and primarily, violated ECHR art. 3 as interpreted in Soering, Chahal, and Saadi.
The main basis for this finding was the “real risk” that Libya, despite its agree-
ment with Italy, would arbitrarily repatriate the applicants to countries where they
faced a real risk of inhuman treatment.
In the judgment of the Court, art. 3 is violated by any exercise of state A’s
jurisdiction that prevents a migrant from gaining entry to state A and has the
effect—however contrary to state A’s intentions and despite its bona fide precau-
tionary measures—that he is exposed to some real risk of inhuman treatment, if
not by state B (the receiving state, or the state from which he set out to gain entry
to A) then by a subsequent receiving state C or D . . . or by persons within state C
or D for whose criminal conduct no state authorities anywhere had even indirect
responsibility or culpability.46 In the Court’s judgment, the breadth of the ruling
is articulated as inconspicuously as could be managed,47 and it is left to the
46 This last-mentioned immense extension of art. 3 was made by the ECtHR years before, at latest in
D v. United Kingdom (1997), see n50 below.
47 The key sentence is in para. 134: “. . . the rules for the rescue of persons at sea and those governing
the fight against people trafficking impose on States the obligation to fulfil the obligations arising out
of international refugee law, including the non-refoulement principle (see paragraph 23 above).”
Paragraph 23 consists in substance of a UNHCR Note (which para. 134 will thus endorse):
23. In its Note on International Protection (13 September 2001) (A/AC.96/951, § 16),
UNHCR, which has the task of monitoring the manner in which the States Parties apply
the Geneva Convention, indicated that the principle of non-refoulement laid down in Article
33, was:
“. . . a cardinal protection principle. . . . In addition, international human rights law has
established non-refoulement as a fundamental component of the absolute prohibition of torture
and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also
recognized as applying to refugees irrespective of their formal recognition. . . It encompasses
any measure attributable to a State which could have the effect of returning an asylum-seeker
or refugee to the frontiers of territories where his or her life or freedom would be threatened,
208 J. Finnis
concurring judgment of Judge Pinto de Albuquerque to emphasise it, as he does,

extensively.
Before considering the actual effects (all amply foreseeable) of the judgment
and holding, we should note the frame in which the judgment sets the holding:
122. The Court has already had occasion to note that the States which form the
external borders of the European Union are currently experiencing considerable diffi-
culties in coping with the increasing influx of migrants and asylum-seekers. It does not
underestimate the burden and pressure this situation places on the States concerned,
which are all the greater in the present context of economic crisis. . . . It is particularly
aware of the difficulties related to the phenomenon of migration by sea, involving for

States additional complications in controlling the borders in southern Europe.
However, having regard to the absolute character of the rights secured by Article 3, that
cannot absolve a State of its obligations under that provision.
123. The Court reiterates that protection against the treatment prohibited by Article 3
imposes on States the obligation not to remove any person who, in the receiving
country, would run the real risk of being subjected to such treatment.
And:
120. Owing to the absolute character of the right guaranteed, the Court does not rule
out the possibility that Article 3 of the Convention may also apply where the danger
emanates from persons or groups of persons who are not public officials. However, it
must be shown that the risk is real and that the authorities of the receiving State are not
able to obviate the risk by providing appropriate protection . . . .
The decision in Hirsi Jamaa, absolutely prohibiting interdiction or pushback
operations, and denouncing them as fundamental violations of human rights and
of international law, undoubtedly contributed substantially to (a) the drowning of
about 15,000 in the Mediterranean, and (b) the arrival in Italy and Greece, over
the four years following, of over two million persons, some undoubtedly refugees,
some claiming unpersuasively to be refugees, and many manifestly motivated not
by fear of persecution but simply by understandable hope for a better life for
themselves and later their families (a hope that equally understandably could be
shared by scores or hundreds of millions of individuals and families in many
places). These effects cannot be attributed wholly or perhaps even primarily to
Hirsi Jamaa, for the decision (as is pointed out in the judgment) was entirely in
line with policies adopted by the authorities of the European Union and almost all
the Union’s member states, at least until the late summer of 2015—policies
widely at variance with those of the Italian government during the two years
before its pushback operations were terminated by the Libyan uprising in
February 2011, a year before the Court’s decision. The effect of that decision
on the policies of the EU and many of its members should not, however, be
under-estimated, since it amounted to a declaration that there was no lawfully
alternative to such policies.
or where he or she would risk persecution. This includes rejection at the frontier, interception,
and indirect refoulement, whether of an individual seeking asylum or in situations of mass
influx.” (emphases added)
Absolute Rights 209
In a reflection on the logic of absolute norms, it is better, therefore, to consider

the effects of the Hirsi Jamaa ruling in relation to a range of easily conceivable
circumstances, and to shelve the question how far the actual circumstances of
2012-16 overlap with them.
On the one hand it is possible to envisage circumstances where people arrive at
state R’s frontier, or shore, or approach R’s territorial waters, in full flight from
persons obviously seeking to kill, torture, or enslave them. Setting aside the case
where it is reasonable to suspect a ruse/ambush, it would be sound to say that
refusal to rescue at sea and transport to R, like refusal to allow these persons to
cross R’s border, is likely to be morally repugnant and wrong, a grave violation of

these persons’ moral rights.
But this presumptively strong moral responsibility falls well short of an excep-
tionless moral rule that all such persons must always be permitted to enter. All the
states party to the drafting of the Refugee Convention 1951 agreed that there were
exceptions, among them the general range of situations describable as “mass in-
flux,”48 but pertaining also to persons reasonably regarded as a danger to R’s or its
community’s security.49 The relevance of these historical facts to the present
inquiry is, of course, only indirect. They help confirm that common-sense gives
an affirmative answer to the question, “Wouldn’t a purported moral or legal
absolute be absurd if it (i) exceptionlessly prohibited acts not for their intention
but for the risk they create of unintended bad effects, and (ii) extended even to
circumstances where the bad effects of adhering to the prohibition are of the same
kind, are as large or larger in scale and number, and are at least as likely to occur?”
Hirsi Jamaa is directly relevant to that question because its apparent prompt
bad effects—(a) the huge loss of life and (b) the vast and scarcely reversible
48 This is the term used by the United Nations High Commission for Refugees in its Note on
International Protection (13 September 2001) (A/AC.96/951, § 16), following the Declaration on
Territorial Asylum adopted by the General Assembly of the United Nations in 1967, affirming that
refugees (in the sense of art. 14 of the Universal Declaration of Human Rights) are not to be rejected
at the frontier, or expelled or compulsorily returned to a state where they may be subjected to
persecution; and secondly, that “exception may be made” to this principle “for overriding reasons
of national security or in order to safeguard the population, as in the case of a mass influx of persons”:
art. 3 (1) and (2).
49 Convention on the Status of Refugees 1951, art. 33:
33. Prohibition of expulsion or return ("refoulement")

(1) No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.
(2) The benefit of the present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the country in which
he is, or who, having been convicted by a final judgement of a particularly serious crime,
constitutes a danger to the community of that country.
The UK’s submissions in Saadi observed that the absolutist doctrine adopted in Chahal was “in
contradiction with the intentions of the original signatories of the [Refugee] Convention” (para. 122)
(n 47 above). The judgment in Saadi does not contest this, and tacitly concedes it in its brief remark
(para. 138) on art. 33 of the Refugee Convention. For the evidence that Hirsi Jamaa contradicts the
intentions of the parties to the 1951 Convention, see Finnis, “Judicial Law-Making and the Living
Instrumentalisation of the ECHR,” 110-13.
210 J. Finnis
movement of peoples from very poor to very rich countries – would probably
have occurred to much the same extent even in the absence of its supporting
European and national pro-migration policies, enactments and administrative
practices.
This relevance of likely effects to the moral rationality or irrationality of a
purported absolute defined by “real risk of bad effects” is confirmed by the
ECtHR itself, in its decision in N v UK.
G. N v United Kingdom (2008)

The ECtHR Grand Chamber gave its decision in Saadi v Italy exactly five months
after hearing the oral argument in N v. UK but three months before its decision in
N. As will be seen, that lends a special note of inauthenticity to the absolutist
reasoning, or rhetoric, in Saadi. And this in turn is a sign that the logic of moral
absolutes was making itself felt, though never admitted and faced up to.
The syndrome of issues resolved in N v. UK was first tackled by the ECtHR in
1997, when it held, in D v United Kingdom,50 that Britain would violate art. 3 if it
deported D to his home country (St Kitts in the West Indies), he being a previ-
ously deported drug dealer who had contracted AIDS back home and had un-
lawfully returned to Britain without leave, simply for the purpose of there
committing serious offences. While in detention first for his new crimes and
then pending his deportation, D had received, directly or indirectly from the
National Health Service, elaborate and expensive medical treatments totally un-
available in St. Kitts. For lack of these, he would soon die in St Kitts, much sooner
and in much more distressing circumstances than he would in Britain, having in
St Kitts (seemingly) no family or friends. As the ECtHR accepted, nothing that
would be done to D, or happen to him, in St Kitts would amount to torture or
inhuman or degrading treatment. But the Court held that for Britain to return D
would itself subject him to inhuman and degrading treatment proscribed by art. 3.
To limit the application of art. 3 [to cases where the source of the risk of proscribed
treatment in the receiving country stems from factors which [can] engage either directly
or indirectly the responsibility of the public authorities of that country, or which, taken
alone . . . in themselves infringe the standards of that Article (art. 3)] would be to
undermine the absolute character of its protection. (para. 49)(emphasis added).
In short, even when there is no risk that the illegal entrant will be subjected in
the receiving (home) country to inhuman or degrading treatment by persons or
other “factors,” the removing country’s act of removing him back to his home
country would be inhuman or degrading treatment. Equally proscribed by art. 3
would be a UK decision to stop providing him with expensive medical treatments.
At least one set of premises employed in D v. UK would open up the health and
welfare systems of every relatively prosperous country to all persons—from among
the many millions of dying, disabled or gravely ill worldwide—who, for the sake
of getting medical and other support unobtainable at home, could contrive by
50 D v UK (1997) 24 EHHR 423 (30240/96) Chamber. For N v UK, see n58.

Absolute Rights 211
fraud, stealth or outright crime to set foot anywhere in the country (or even just
enter its territorial waters).51
The facts in N v. UK provide a suitable illustration of the problem. At about the
same time as the ECtHR was deciding D v. UK, a young woman, N, suffering
very advanced AIDS (whether aware of the diagnosis or not), flew on a false
passport from her home country, Uganda, to the England, and being “refused
entry” was admitted next day, very ill, to a large National Health Service hospital
in London. Successfully treated there through many medical complications and
crises, this 24-year-old woman had (by the time her appeals were heard six or
seven years later) a life expectancy of decades—on condition that the expensive

drugs and medical facilities here remained available to her, at public expense; in
Uganda she would in all probability die of AIDS within a year or two of her
return.
The British courts held that the Home Secretary’s decision of deport her, after
the failure of her asylum claim, did not contravene art. 3.52 The humanitarian
case for letting her stay was, the judges said, pressing, “very powerful indeed,”
indeed “overwhelming.” But (they went on) her plight was not exceptional.
Millions of people are in like plight in Africa and thousands come to the UK
as illegal entrants but are able to stay for some considerable time during which our
medical facilities and care restore them to a condition of health which will not
survive their return to their home country. In cases such as N’s or D’s, art. 3
ECHR applies only (the courts held) in exceptional cases. What is an exceptional
case? Lady Hale rejected as “not at all helpful” the “test” suggested in the Court of
Appeal: Is the humanitarian appeal of the case “so powerful that it could not in
reason be resisted by the authorities of a civilised state?”53 Her own test was: Has
“the applicant’s illness reached such a critical stage (i.e. he is dying) that it would
be inhuman treatment to deprive him of the care which he is currently receiving
and send him home to an early death unless there is care available there to enable
him to meet that fate with dignity”? To this narrow and circular test, she added:
“It sums up the facts in D. It is not met on the facts of this case.”54 The nearest
any of the Law Lords came to identifying a rational distinction between D’s case
and N’s was Lord Nicholls:
51 The Court may have been pointing to a narrower set of premises, with less sweeping further
consequences, when it said (para. 53):
the respondent State has assumed responsibility for treating the applicant’s condition since
August 1994. He has become reliant on the medical and palliative care which he is at present
receiving and is no doubt psychologically prepared for death in an environment which is both
familiar and compassionate. Although it cannot be said that the conditions which would
confront him in the receiving country are themselves a breach of the standards of Article
3, his removal would expose him to a real risk of dying under most distressing circumstances
and would thus amount to inhuman treatment.
In the GS (India) litigation in 2014, Kay LJ said of the applicants in D v. UK and N v. UK: “They
concern effectively illegal entrants who can properly be described as ‘health tourists’”: GS (India) v.
Home Secretary [2015] EWCA Civ 40 para. 1.
52 N v. Home Secretary [2005] 2 AC 296, [2005] UKHL 31.
53 Para. 66.
54 Para. 69.
212 J. Finnis
In D and in later cases the Strasbourg court [ECtHR] has constantly reiterated that in
principle aliens subject to expulsion cannot claim any entitlement to remain . . . in
order to continue to benefit from medical, social and other forms of assistance provided
by the expelling state. Art. 3 imposes no such “medical care” obligation on contracting
states. . . . But in D, unlike the later cases, there was no question of imposing any such
obligation on the United Kingdom. D was dying, and beyond the reach of medical
treatment then available.55
This amounts, of course, to saying that the question whether the “treatment”
(deportation as such) is inhuman (proscribed by art. 3) is settled not by anything
about how much the deportee suffers in the receiving state, but by asking whether

proscribing the deportation would result in burdens on the deporting state (such
as medical and welfare expenses) that are deemed by the judges so great—when
considered in terms of the numbers of actual and potential illegal entrants in
similar situations of need and vulnerability—that the burden defeats the norm
found by the ECtHR in art. 3.
Which is, of course, to say that art. 3 is not an absolute. Its negative command
or norm (according to D v. UK, or Chahal), not to return anyone to death or danger,
is inapplicable where the alternative to returning someone will be great expense to
the returning state, expense indefinitely great because of the other persons in
similar circumstances now and/or in future. There is no way of reconciling the
reasoning in N v. Home Secretary with the reasoning in Chahal (or, later, with
Saadi and Hirsi Jamaa).56 Of the two lines of reasoning, N v. Home Secretary is the
more defensible.57
55 Para. 15. None of the other Law Lords explicitly favoured this line of thought. So none of them
could explain why it is inhuman or “inhumane” to send back a dying person but not inhuman to send
back someone whose life will thereby be shortened by decades and will soon end in dying and death in
miserable circumstances. As Lord Nicholls cogently framed this question (para. 13): “Why is it
unacceptable to expel a person whose illness is irreversible, and whose death is near, but acceptable
to expel a person whose illness is under control but whose death will occur once treatment ceases (as
may well happen on deportation)?” But in Home Secretary v. GS (India) [2012] UKUT 00397 (IAC)
the Upper Tribunal declined to accept that as the true rationale of N v Home Secretary, and the Court
of Appeal judgments (see n51 above) seem to leave the matter unresolved.
56 In refusing (30 July 2015) leave to appeal to the UK Supreme Court from the Court of Appeal
decision in GS (India) v Home Secretary (n51 above), the Permission to Appeal Panel (Lady Hale,
Lord Hughes and Lord Toulson) said “With regret, the Panel can foresee no reasonable prospect of
this Court departing from N v [Home Secretary]”. The applicants in these appeals suffered from end-
stage kidney disease and faced early and unpleasant death within a very few weeks following their
removal from the UK.
57 From within the judiciary, see the comments by Blake J. for the Upper Tribunal in GS (India) v.
Home Secretary n57 above:
86. . . . having surveyed the jurisprudence we do not find the state of the case law to be
altogether satisfactory. We anticipate that we are not alone in puzzling at the ethical reach of
the Article 3 jurisprudence where on the one hand suspected terrorists, war criminals other-
wise excluded from refugee protection or others considered to be a source of risk to the host
community, are protected from expulsion because of the real risk of being exposed to in-
human or degrading treatment on return, and on the other where people in a similar position
as these claimants, who may have entered the United Kingdom regularly and are guilty of no
anti-social conduct, cannot claim human rights protection from return even though they face
the certainty of imminent death following their removal and the loss of access to the life
saving facilities they enjoy whilst they remain here.
Absolute Rights 213
In the appeal from N v Home Secretary, the dissenting minority of three judges
in the ECtHR pointed directly to this inconsistency, and were willing to impose
on ECHR member states the limitless burdens that would be entailed by reading
art. 3 as forbidding N’s deportation. The 14 majority judges remained virtually
silent about the inconsistency.58 They upheld the House of Lords in result and
essential reasoning: although D v. United Kingdom should be upheld, it should be
limited to such “very exceptional” cases lest art. 3 “place too great a burden on the
Contracting States” (para. 44). For, they said, “inherent in the whole of the
Convention is a search for a fair balance between the demands of the general
interest of the community and the requirements of the protection of the individ-

ual’s fundamental rights.”59
In short, art. 3 is not an absolute. Except when the Court says it is. The
ECtHR’s premier venture in legislation—its art. 3 law of asylum and immigrant
protection—is incoherent. This is the incoherence that the logic of moral abso-
lutes makes inevitable. The ECHR doctrine could not be made coherent without
returning to the true principle of art. 3: the outlawing of all conduct (acts or
omissions, whether one’s own or others’) intended (whether as a means or an end)
to torture, degrade or subject to inhuman treatment. Equivalents of intending
include planning, trying, doing or omitting something in order to, with a goal of
. . . and others. Replacing intention by substitutes such as causing, directly bringing
87. We cannot assess whether . . . the time is ripe for reconsideration by Strasbourg of the
principles behind N v. UK. We observe that there is surely a case for distinguishing between
those who have never had access to a health facility to prolong life and those who have such
access but will lose it on removal. Equally a simple causation test as favoured by the minority
in N v. UK, risks casting the net of Article 3 protection too wide in contracting [scil. ECHR]
states facing rising demand for health resources and serious financial constraints on an ability
to provide it.
58 N v. United Kingdom 26565/05 (27 May 2008) (Grand Chamber). In para. 43, the Court seems
to attempt to distinguish D v. UK:
43. The Court does not exclude that there may be other very exceptional cases where the
humanitarian considerations are equally compelling. However, it considers that it should
maintain the high threshold set in D. v. United Kingdom and applied in its subsequent
case-law, which [scil. the highness of the bar] it regards as correct in principle, given that
in such cases the alleged future harm would emanate not from the intentional acts or omis-
sions of public authorities or non-State bodies, but instead from a naturally occurring illness
and the lack of sufficient resources to deal with it in the receiving country.
But this attempted distinction altogether fails, because the suffering of D, like the suffering of N
and of the applicants in GS, would “emanate from” the intentional act of the UK authorities in
terminating the medical treatment by putting the deportee on a plane back to their impoverished
home country. D v. UK expressly held that the inhuman treatment was not anything intentional or
non-intentional in the receiving country but the intentional act of the deporting country. And we
may add that the subsequent suffering of the deportee, for all its intensity and certainty, is a side effect
of that intentional act.
59 Para. 44. The quoted words are themselves a quotation from Soering. The Court’s appeal to them
in N v. UK overlooks the fact that Chahal and Saadi represent an absolutist refusal to follow this
dictum in Soering. The majority (unlike the minority) seem to take some care not to repeat the
proposition in D v. UK (and many other cases) that art. 3’s scope can be inferred from—and must be
wide because of—its “absolute” character; they preferred instead to infer its width (as extending to D-
like situations) from “the Article’s fundamental importance in the Convention system.” (Whether or
not that is ultimately a distinction without a difference, this “importance” premise is a petitio prin-
cipii; the question is whether the side effects it forbids states to cause are more important than the side
effects that respecting this prohibition will impose on states and their peoples.)
214 J. Finnis
about, foreseeably resulting promptly and inevitably in, responsible for—all of them
far from the meaning of “intended to”—makes incoherence and arbitrariness in
the application of art. 3 inevitable.60
A final word about the dissent in N v. UK. These three judges were willing to
treat art. 3 as imposing on states virtually limitless obligations of providing ex-
pensive medical care to anyone from an indigent country who is indigent and can
“set foot in a Convention state.” Perhaps they were tacitly acknowledging the
rational fragility of their own position—and thus of art. 3 case-law as a whole,
with its supposedly exceptionless imposition of liability for side effects as much as
for intended effects—when they intimated, implausibly, that there is no likeli-

hood that more than rather few will ever claim these rights, and that the burden
on states is only “budgetary.” We get a better sense of the potential burden when
we reflect that after Hirsi Jamaa, art. 3 includes a right (available to millions of
people from or setting out from failed states) to be permitted to set foot in the state,
and thus to enter (often illegally but always under art. 3 protection) to stay and, in
an indeterminate proportion of these cases, to obtain such medical treatment
without fear—if the minority judges in N v. UK had prevailed—of being
removed. It may seem or be distasteful to refer to this burden. But it is only
one, and perhaps not at all the gravest,61 of the burdens imposed on the ECHR
member states by mass migration.
60 In GS (India) v. Home Secretary [2015] EWCA Civ 40 Laws LJ brings out the incoherence of the
ECtHR jurisprudence on art. 3. A main part of his discourse is (para. 36) to identify “the paradigm
case, or core instance” of art. 3, a paradigm delineated by “intentionally inflicted acts of public
authorities” or “intentional acts or omissions of public authorities or non-State bodies” (paras. 39-
42). But then he shows, without ever pointing firmly to the level of incoherence involved, how the
ECtHR has departed from the paradigm in cases such as D v. UK (1997), and then again, despite its
circumscribing of D v. UK in N v. UK (2008), departed widely from the paradigm in MSS v. Belgium
& Greece 53 EHRR 28 (Grand Chamber) (21 January 2011) (holding that Greek official indifference
to the applicant asylum-seeker’s vulnerability is a violation of art 3 or makes Belgium’s return of him
to Greece a violation of art. 3). Laws LJ’s low-key conclusion: “It is on the face of it difficult to find
any governing principle, applied across the learning, which provides a rationale for departures from
the Article 3 paradigm” (para. 57). That there are “strands of reasoning,” as he goes on to point out,
does not affect that conclusion. He leaves unstated the inexorable conclusion: art. 3 is both unquali-
fied and qualified. The case-law is incoherent, the appeal to high principle is floating free from
principle.
61 Perhaps the gravest is the likelihood that such migration, from the poor states south and south-
east of the Western Europe, will result fairly quickly in demographic-cum-cultural change of a
specific character apt to create a “real risk” of civil war and/or the overthrow of the political order
of which the ECHR is a product and symbol (albeit not a necessary pillar). See the ECtHR’s own key
premise in Refah Partisi (No. 2) v Turkey (2003) 37 EHHR 1, para. 123 (ECtHR Grand Chamber,
quoting and adopting Refah Partisi (No.1) (2002) 35 EHHR 3 at para. 72):
. . . the Court considers that sharia, which faithfully reflects the dogmas and divine rules laid
down by religion, is stable and invariable. Principles such as pluralism in the political sphere
or the constant evolution of public freedoms have no place in it. . . . [A] regime based on
sharia . . . clearly diverges from Convention values, particularly with regard to its criminal law
and criminal procedure, its rules on the legal status of women and the way it intervenes in all
spheres of private and public life in accordance with religious precepts. . . . [A] political party
whose actions seem to be aimed at introducing sharia . . . can hardly be regarded as an
association complying with the democratic ideal that underlies the whole of the Convention.
Absolute Rights 215
III. Concluding Re-Orientations

The moral, both of the theoretical analysis in Part I and of the history sketched in
Part II, is that absolute rights make sense only if they are, qua absolute, narrowly
framed as the correlatives of absolute duties not to choose certain kinds of act each
defined by reference to its object, that is, its more or less close-in intention. It
remains true and important, however, that each such absolute duty (with its
correlative right) is morally, and often should legally, be associated with associated
duties (each with its correlative right(s)), which each are perhaps quite wide but
also non-absolute, that is, defeasible by competing duties and/or rights, and/or

interests constitutive of or derivable from public good(s) of the various kinds
listed in the second part of arts. 8, 9 and 10 of the ECHR.62
For: those side effects of one’s acts that (as an individual or state) one foresees or
ought to have foreseen are certainly within one’s moral responsibility (the range of
one’s duties), and can readily be effects the causing of which is morally culpable
and justly subject to legal prohibitions and penalties. But the norms measuring
that responsibility cannot be exceptionless, indefeasible moral absolutes,63 and the
human rights to be free from the impact of side effects cannot be absolute rights.
There is no doubt that it could be reasonable for at least some states to opt to
subject themselves, by treaty or by their own constitutional provisions, to rules
more or less similar to those that have been produced, piecemeal and with severely
inadequate deliberation and transparency, by the ECtHR. States could likewise try
subjecting themselves to the rule advocated by the minority in N v. United
Kingdom.
Again, if a state and its people opted to open the state’s borders, the decision
could in some circumstances be reasonable. Indeed, it is even conceivable that a
free decision by a state and its people to renounce all authority to expel non-
citizens from the national territory (just as states have renounced authority to
expel their own citizens) could, at least arguably, be sufficiently respectful of the
human rights of the state’s own citizens to amount to a reasonable renunciation
and self-sacrifice. But aspirations of these essentially communist kinds have for
millennia been the subject of principled critiques.64 For such arrangements, gen-
erally speaking, are in many ways opposed to the common good even of those
impoverished people for whose benefit the boundaries of property and territory
were abolished. And the upshot soon enough would likely be a world of failed
states and general internecine civil war—resulting at best in the arduous re-estab-
lishment of bordered, independent nation states much as at present, or in a
totalitarian global tyranny without exit.
62 Typified by art. 8, n22 above.

63 See text at n36 above.
64 See “Cosmopolis, National States and Families,” essay 7 in CEJF II: 122-9, esp. 126.

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Absolute Rights Some Problems Illustrated

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The American Journal of Jurisprudence, Vol. 61, No. 2 (2016), pp.

Absolute Rights: Some Problems Illustrated

Abstract: Joseph Boyle, building on an argument of Elizabeth Anscombe, showed

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Keywords: Human Rights, Moral Absolutes, Immigration

Convention on Human Rights [ECHR],5 like other parts of that Convention, as

I. The Logic of Exceptionless Norms/Precepts

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If the types of states of affairs exceptionlessly (indefeasibly) excluded by the

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II. The ECtHR’s Road to Incoherence

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Right to respect for private and family life

requirements of an exceptionless norm. The ECtHR ruled that for the UK to

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B. Cruz Varas (1991)

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The linguistic strain is tolerable when, as in Soering, there is complicity—intent

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E. Two Paradigm Consequences

F. Hirsi Jamaa (2012)

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concurring judgment of Judge Pinto de Albuquerque to emphasise it, as he does,

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In a reflection on the logic of absolute norms, it is better, therefore, to consider

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33. Prohibition of expulsion or return ("refoulement")

G. N v United Kingdom (2008)

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50 D v UK (1997) 24 EHHR 423 (30240/96) Chamber. For N v UK, see n58.

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III. Concluding Re-Orientations

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62 Typified by art. 8, n22 above.

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