A/HRC/16/51
and mutually reinforcing goals.12 This also reflects the flexibility of human rights law.
Through the careful application of human rights law it is possible to respond effectively to
the challenges involved in the countering of terrorism while complying with human
rights.13 There is no need in this process for a balancing between human rights and security,
as the proper balance can and must be found within human rights law itself. Law is the
balance, not a weight to be measured.
13.
To achieve complementarity and mutual reinforcement, the Special Rapporteur
identifies 10 areas of best practice applicable to Member States’ legislative framework to
combat terrorism. The first concerns consistency between counter-terrorism law – whether
as separate pieces of legislation or as part of “ordinary” laws, such as the inclusion of
terrorism offences within the criminal code of a country – and human rights and refugee
law, as well as, when applicable, humanitarian law. Consistency is essential for both
existing and future laws. In the case of proposed counter-terrorism law, many States include
mechanisms for identifying whether proposed legislation, including on counter-terrorism,
complies with human rights law.14 Because of the potentially profound implications of
counter-terrorism legislation, it is also important that Governments seek to ensure the
broadest possible political and popular support for counter-terrorism laws through an open
and transparent process.15 In the event of incompatibility of extant counter-terrorism
legislation with human rights law, including international human rights, the existence of
mechanisms empowering the judiciary to strike down inconsistent legislation or to adopt an
interpretation of the legislation that is consistent with human rights is essential.16 The
effectiveness of such mechanisms will rely on the existence and maintenance of a
competent, independent, impartial and transparent judiciary.17
14.
To these ends, the Special Rapporteur formulates the template provisions below
concerning the enactment, amendment and interpretation of counter-terrorism laws:
Practice 1. Model provisions on consistency of counter-terrorism law with human
rights and refugee law, and humanitarian law
All legislation relating to the combating of terrorism is subject to the following
guarantees and procedures:
12
13
14
15
16
17
-
See A/60/825, para. 5; A/HRC/8/13; Statement by the President of the Security Council of 27
September 2010, op.cit. , eighth paragraph; the Internal Security Programme and National CounterTerrorism Strategy of Finland; Switzerland questionnaire response; and the Human Security Act 2007
of the Philippines, sect. 2.
See “Human rights, terrorism and counter-terrorism”, Office of the United Nations High
Commissioner for Human Rights (OHCHR), fact sheet No. 32, 2008, p. 12; Handbook on Human
Rights Compliance While Countering Terrorism, Center on Global Counterterrorism Cooperation;
and the questionnaire responses submitted by Bahrain, Bolivia (Plurinational State of), Canada, Cuba,
Finland, Greece, Guyana, Hungary, Jordan, Monaco, Morocco, Norway, Pakistan, Poland, Portugal,
Qatar, the Russian Federation, Slovakia, the Sudan, Switzerland, the Syrian Arab Republic, Togo and
the United Kingdom of Great Britain and Northern Ireland.
See Canada, Department of Justice Act 1985, sect. 4.1; New Zealand, Bill of Rights Act 1990, sect. 7;
and United Kingdom, Human Rights Act 1998, sect. 19; see also questionnaire responses submitted
by Finland, Mauritius and Monaco. On the effectiveness of such mechanisms, see Alex Conte,
Human Rights in the Prevention and Punishment of Terrorism, 2010, pp. 340-343.
See A/HRC/4/26/Add.3, para. 65, A/HRC/6/17/Add.2, para. 20, and A/HRC/16/51/Add.3, para. 37.
Canada, Constitution Act 1982, sect. 52 (questionnaire response).
See International Covenant on Civil and Political Rights, art. 14(1); International Commission of
Jurists, Practitioner Guide No 1: International Principles on Independence and Accountability of
Judges, Lawyers and Prosecutors, 2007; and questionnaire response submitted by Indonesia.
7
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents