Is the Whole Point of Human Rights Their Universal Character? A, B & C v Ireland and SAS v France

The United Kingdom Supreme Court’s 2014 decision in Cheshire West concerned the question of whether living arrangements for certain mentally incapacitated persons amounted to a deprivation of liberty. In finding that the test for whether someone has been deprived of their liberty is the same for a disabled person as it is for everyone else, Lady Hale reminded the Court that human rights are for everyone, because ‘[t]he whole point of human rights is their universal character’.1 But is there such a thing as universal human rights? This paper considers the philosophical and institutional complications faced by a universal approach to human rights. It argues that these philosophical and institutional difficulties are clearly played out in two recent decisions of the European Court of Human Rights: A, B & C v Ireland,2 concerning the Republic of Ireland’s restrictions on abortion, and SAS v France,3 concerning France’s ban on face-coverings. It concludes that the Court must not stray too far from a universal approach to human rights, lest it blot its record of success in calling out violations of rights and protecting individuals from the illiberal excesses of government.