CHAPTER 4: THE NASCENCE OF PERSONAL AUTONOMY AND OTHER PREVALENT
4.3 Relevant International Instruments of Human Rights and other Supporting Pieces of Legal
105 conferring such fundamental human rights propels the inherency of autonomy within the greater social sphere.587
4.3 Relevant International Instruments of Human Rights and other Supporting Pieces
106 Such is a simplistic, yet far-reaching submission as to the strength of the Declaration’s unification of a shared international perspective of the preservation and upkeep of human rights. 594 The thirty Articles that populate the UDHR serve as forerunners to the rights of, inter alia,595 freedom, safety, privacy, and dignity for all humans of the world.596 The Declaration goes as far as to accommodate for both the social and economic rights of a person respectively.597
It is essential to note that the Declaration has no binding effect upon the legal vocation of the nations that abide by its principles;598 its premise is simply to endorse a collective understanding of the shared values to human rights across the world. A testament to the gravity of the Declaration is evident within the numerous constitutions of the nations that are supporters of its ambit. Fundamental elements such as the right to life, liberty and security of the person,599 freedom from slavery and forced servitude,600 restrictions upon torture and inhumane practices,601 equality,602 and the right to privacy and freedom from an arbitrary interference,603 have found themselves within the reverberating certainty of constitutional support from the nations to the Declaration604.
4.3.2 European Convention on Human Rights
Deriving itself from the influence of the UDHR, the European Convention on Human Rights(herein referred to as the ECHR) exists as a supporter of the upkeep and protection of human rights within Europe.605 The ECHR states that the member-nations to the Convention are under a positive obligation to realise and respect the human rights of all persons within their
594 UN General Assembly "Universal Declaration of Human Rights" (1948).
595 See Articles 3, 4, 5 and 12 of the Universal Declaration of Human Rights.
596 E.D. Re ‘The Universal Declaration of Human Rights: Effective remedies and the domestic courts’ (2003) 33 California Western International Law Journal 142.
597 See Articles 14, 22, 23 and 26 of the Universal Declaration of Human Rights.
598 Glendon ‘The rule of law in the Universal Declaration of Human Rights’ (2004) 5.
599 Article 3 of the Universal Declaration of Human Rights.
600 Article 4.
601 Article 5.
602 Article 2.
603 Article 12.
604 Glendon ‘The rule of law in the Universal Declaration of Human Rights’ (2004) 5, 12.
605 Council of Europe "Convention for the Protection of Human Rights and Fundamental Freedoms” (1950).
107 jurisdiction.606 This first Article paints a supportive mirroring of the UDHR’s premise, allowing for the flowering of a unified understanding of all nations to the Convention.
The European Court of Human Rights (herein referred to as the ECtHR) was established under Article 19 of the Convention,607 creating a permanent court that serves as the highest front to the access of justice in matters of human rights violations. The ECtHR may hear any matter that brings forward flourishes of human rights violations within any of the member states that are party to the Council of Europe.608 This proves that the Convention is far more herculean than a mere credo of desired treatment by governments over people, but rather, the Convention forms a multi-faceted legal outlook on the safety and enforcement of fundamental and protected human rights.609
The progressive value of the Convention entrenches, even if not openly expressed,610 the facilitation for the access to justice where human rights violations have occurred.611 Therefore, the ECtHR thrives as a manifestation of the will of the ECHR, serving as an instrument for the safety and upkeep of human rights. Ultimately, the ECtHR endures as a descendant of the UDHR, based on the latter’s resounding influence upon the consideration of human rights within the modern world.
4.3.3 The South African Constitution
The Constitution exists as the supreme law within the South Africa and binds together an array of fundamental legal tenets.612 Under Chapter 2 of the Constitution, the Bill of Rights endorses the fundamental human rights of all South Africans in a distinctive outline. For the fulfilment of this chapter’s focus, only corresponding rights contained within the Bill of Rights shall be expressed in the hopes of propelling the eventual South African perspective to consensual sadomasochism that brings harm upon the participants.
606 Article 1.
607 Article 19.
608 Article 34.
609 J.H. Gerards and L.R. Glas ‘Access to justice in the European Convention on Human Rights system’ (2017) 35 Netherlands Quarterly of Human Rights 15.
610 Convention for the Protection of Human Rights and Fundamental Freedoms.
611 Gerards and Glas op cit note 609 above at 13.
612 The Constitution of the Republic of South Africa.
108 As an introductory submission of the pertinence of the Bill of Rights, Section 7 states that:
‘(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
(3) The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.613’
This submission vigorously establishes South Africa’s support of human rights by allowing for the Bill of Rights to shine on as an instrument of prominence. The rights of freedom, equality, and dignity,614 resurface as common threads to the UDHR’s primary outlook upon human rights, proving615 that the Bill of Rights is a noteworthy standard-bearer of the Declaration.616 Section 7(2) of the Bill of Rights places a positive obligation upon the South African state to safeguard and facilitate the fundamental rights of the Bill of Rights that are inherent to every person.617 Once again, such echoes the South African Constitution’s resounding compliance with yet another international standard of care for the sanctity of human rights of all persons.
Thus, the Bill of Rights can be held as the custodian for the democratic age of South Africa by its initiative of enshrining the fundamental rights of all persons in South Africa by means of a supreme legislative authority.618
However, a noteworthy consideration regarding the Bill of Rights is the previously mentioned
‘Limitations Clause’.619 As accounted for earlier, Section 36 allows for the limitation of human rights, where such is ‘reasonable and justifiable’,620 within an open and democratic society.621 The Bill of Rights thus expressly provides for a mechanism of control of certain human rights, juxtaposed objectively to the limitation of such. The term ‘reasonable and justifiable’ treads within a defined Constitutional test for the possible limitation of a human right by an appropriate court.622 Such is a delicate task as the test itself is strict within its definitional
613 Section 7(1) - (3).
614 Section 7(1).
615 Universal Declaration of Human Rights.
616 Ibid.
617 Section 7(2) of The Constitution of the Republic of South Africa.
618 Ibid.
619 See sections 7(3) and 36.
620 Section 36.
621 Section 36(1).
622 Ibid.
109 ambit.623 If the court were to implant the limitations clause, such will expose the harm of the limitation upon the individual’s right, and on the other end of the spectrum, the importance in the protection of the public benefit and interests regarding the limitation.624 O’Regan J considered the intensity of an intervention by an appropriate court when assessed to different matters calling for the limitations of rights:
‘The more substantial the inroad into fundamental rights, the more persuasive the grounds of justification must be.625’
The proportionality between the right that is limited, and such a limitation’s benefit to the broader and more compelling concerns of the state, must be objectively constructed within the relevant grounds of Constitutional justification. From a theoretical point of view, the limitations clause bolsters the implementation of the law of general application, following set and authorised legal norms that may limit a right contained within the Bill of Rights; provided that such is ‘reasonable and justifiable within an open and democratic society based on human dignity, equality and freedom.626’
Therefore, individual human rights within the South African legal system are bestowed by a Constitutional certainty, yet the absolute nature of such are far from concrete in light of the existence of the ‘Limitations Clause within the Bill of Rights.627’ Consensual sadomasochism that brings certain degrees of harm upon a person involves the entanglement of specific personality rights that must be examined. For the duration of this chapter, the rights to privacy,628 dignity,629 and freedom of expression shall be explored in their broader definitions and their specific roles within a consensual sadomasochistic encounter.630