A Utilitarian Account of Article 3 ECHR

Letwin, Jeremy (2022) A Utilitarian Account of Article 3 ECHR. European Convention on Human Rights Law Review, 3 (3). pp. 350-391. ISSN 2666-3236

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Abstract

The greatest impediment to the acceptance of a utilitarian theory of human rights is the perceived inability of utilitarianism to deal with absolute rights, such as those contained in Article 3 European Convention on Human Rights. In this paper, I argue that a sophisticated form of indirect utilitarianism can in fact provide a solid foundation for Article 3 absolute rights. I develop an account of the moral rights underlying Article 3 and apply that account to some key elements of the European Court of Human Rights’ (ECtHR) Article 3 jurisprudence. I show how the indirect utilitarian account can explain: (1) the ECtHR’s conclusion that the Gäfgencase did not involve a conflict of Convention rights; (2) the ECtHR’s answer to the question ‘what counts as torture?’; and (3) the ECtHR’s jurisprudence on the difference between the scope of the obligation to prevent torture and the scope of the obligation to prevent inhuman and degrading treatment.