Absolute rights, unpopular minorities, and the meaning of democracy ; Derechos absolutos, las minorías impopulares y el significado de la democracia
Democracy and human rights are often portrayed as 'two sides of the same coin'. This is often done in reference to quintessentially political rights such as the right to vote, the right to freedom of expression, and the right to freedom of association and assembly. Much academic commentary since the 1990s emphasises the mutually reinforcing nature of the relationship between democracy and human rights and, further, supports the concept of a right to democracy.Yet what of rights that are not strictly tied to the procedural fulfilment of democratic decision-making – particularly if such rights claim 'absolute' status? This paper addresses this issue. It considers what an absolute right entails and zooms in on the right enshrined in Article 3 of the European Convention on Human Rights (ECHR), which establishes that no one shall be subjected to torture or inhuman or degrading treatment or punishment, outlining two broad areas in which such a right can operate to protect marginalized, unpopular or voiceless minority groups against majoritarian will or executive 'public interest' arguments.It then assesses how the nature and implications of an absolute right such as Article 3 ECHR can be seen to relate to democracy and examines the potential for defining democracy in a way that encompasses respect for such rights, or for reconsidering the limits of democracy in light of such rights. It is suggested that the account provided indicates that the relationship between human rights and democracy must cease to be viewed through broad-brush references to inter-dependence and mutual reinforcement. This entails that public lawyers must confront the need to address precisely and unequivocally what we mean when evoking the idea of democracy, and notably 'constitutional democracy',3 particularly if we wish to have a lucid and honest account of its relationship with fundamental rights. In the European context, the European Court of Human Rights is called upon to provide such an account in its interpretation of human rights within ...