Human rights standards are dependent on, and guaranteed through, a number of principles, including: • • • • legality; the rule of law; the right to an effective remedy; and non-retroactivity of criminal penalties. Each of these obligations is dependent upon the other and is mutually re-enforcing. The right to an effective remedy and non-retroactive criminal penalties are specifically acknowledged within international human rights treaties, whereas principles of legality and the rule of law have been read into those treaties. The requirement of legality The first obligation imposed by human rights standards — including in regard to combating terrorism — is the requirement that any deviation from human rights standards must have a clear legal basis. This means that all the actions of law-enforcement agencies, including in response to the threat of terrorism, have to be prescribed by law. Within the OSCE region there are a variety of different legal systems, which means different jurisdictions may have different approaches to the notion of legality. The OSCE participating States have agreed that: (5.18) no one will be charged with, tried for or convicted of any criminal offence unless the offence is provided for by a law which defines the elements of the offence with clarity and precision. […] (24) The participating States will ensure that the exercise of all the human rights and fundamental freedoms […]will not be subject to any restrictions except those which are provided by law and are consistent with their obligations under international law, in particular the International Covenant on Civil and Political Rights, and with their international commitments, in particular the Universal Declaration of Human Rights. These restrictions have the character of exceptions. The participating States will ensure that these restrictions are not abused and are not applied in an arbitrary manner, but in such a way that the effective exercise of these rights is ensured. Any restriction on rights and freedoms must, in a democratic society, relate to one of the objectives of the applicable law and be strictly proportionate to the aim of that law. (1990 Copenhagen Document) There must therefore be a legal basis in national law for any deviation from human rights and the law must be accessible and precise. This requirement is intended to avoid any risk of arbitrariness on the part of the state.128 What this means is that: • an individual must be able to know or find out what the law is that permits an interference with their human rights and they must be able to regulate their conduct in accordance with it; • in the context of terrorism, any powers that are assumed by law enforcement officers must have their basis in law; • any power that is conferred must be precise. It cannot be general or loosely described; • where agencies are expected to exercise their discretion, that discretion has to be effectively circumscribed by accessible law. 128 ECtHR, Amuur v. France, Case no. 17/1995/523/609, 20 May 1996, para. 50. 60 Countering Terrorism, Protecting Human Rights