Can human rights ever be limited? Input C ARASA HIV/AIDS and human rights training manual

Very few rights are absolute UDHR – Article 29(2) Limitation must be: Created by law Solely for the purposes of recognising and respecting the rights and freedoms of others Meet the just requirements of morality, public order and the general welfare in a democratic society Can human rights be limited? UDHR

Set of international accepted principles which can be used as standards to establish when it is acceptable to limit a civil and political right Adopted in Siracusa, Italy, in May 1984 Siracusa Principles

A group of international human rights experts convened by: The International Commission of Jurists The International Association of Penal Law The American Association for the International Commission of Jurists The Urban Morgan Institute for Human Rights International Institute of Higher Studies in Criminal Sciences Adopted by

Limitation must be: Provided for in law Necessary to achieve a legitimate objective Only alternative Key aspects of the Principles

Must be allowed by law Must be a national law which applies generally to all people The law must be in place at the time the limitation is used Law must be: Reasonable Clearly worded Prescribed by law

Article 25 of the Principles state that laws may limit rights to promote public health if: There is a serious threat to the public health of a community The measures must aim at preventing disease or caring for those infected Consideration has been given to standards issued by the WHO Prescribed by law contin.

Limitation must be necessary in order to achieve an accepted ground for limiting rights Accepting grounds for limiting rights are: o To achieve public order, for example laws regulating peaceful protests o To protect public health o To promote public morals, for example, laws relating to the age of consent for sex, or use of pornography o National security, for example, anti-terrorism laws Necessary to achieve a legitimate objective

o Public safety, for example, employment laws dealing with minimum safety protections for miners o Rights and freedoms of others, for example, laws against hate speech o Public trials, for example, the right of all trials to be held in open court may be limited in the interests of the parties, if for example, accused is under 18 Necessary to achieve a legitimate objective contin.

 Legitimate aim ◦ Aim of act must be to achieve one of the grounds listed  Proportional to the objective ◦ Must be a link between the objective of the limitation and how this is achieved ◦ Example, in S v Makwanyane, South African case on whether the death penalty was constitutional  CC held that the death penalty had a grave effect on the right to life and this was not proportional to the objectives of deterring crime or preventing the re- occurrence of crime Necessary to achieve a legitimate objective contin.

If there is another way of achieving the purpose that does not involve such a drastic limitation of the right/rights, this must be considered Only alternative

SA – BOR Section 36 describes the process for limiting constitutional (human) rights Case study: SA

Is section 33 of the Sexual Offences Bill a valid limitation of an accused person’s rights? Within 60 days after the alleged commission of a sexual offence, any victim or interested party for the victim can apply to the Magistrate to request that the alleged offender be ordered to take an HIV test The test results can be disclosed to the victim or interested party Sexual Offences Bill

Thank you! June 12, 2016AIDS & Rights Alliance for Southern Africa 14