1. WEEK 8: Restrictions and derogations on HR
HUMAN RIGHTS
WEEK 8:
Restrictions and derogations on HR

2. Restrictions (1)
Conventions and other instruments may contain a number of restrictions or limitations to the rights they stipulate
It is generally accepted that only few rights and freedoms are ‘absolute’ (examples?)
At the same time, such restrictions must be used only to establish the proper limits of the protected right and not as an excuse for undermining the right itself or destroying it altogether
In general, there must be a proportionate relationship between the restriction of the right as such and the reason for the restriction

3. Restrictions (2)
Various international instruments contain provisions allowing restrictions (used interchangeably with the term ‘limitations’) on human rights. Such provisions may take the form of general limitations
Article 4 of ICESCR, for instance, reads:
The states parties to the present Covenant recognise that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting general welfare in a democratic society

4. Restrictions (3) Another illustration:
Article 32(2) of the American Convention on Human Rights (ACHR): ‘The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare, in a democratic society’.
The African Charter on Human and Peoples’ Rights does not contain a specific provision on restrictions
but Article 27(2) on ‘duties’ has come to play the role of a general limitation clause providing: ‘The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.’

5. Restrictions (4)
In order to prevent abuse  conventions often contain a paragraph prohibiting the abuse of an international instrument to destroy another right
Article 5 of ICCPR, for instance, stipulates: Nothing in the present Convention may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised herein or at their limitation to a greater extent than is provided for in the present Covenant
Most human rights treaties contain specific provisions in various individual articles, which specify the limitations and restrictions that are allowed on the particular right
Such specific limitation clauses include ‘prescribed by law’, ‘in a democratic society’, ‘public order (ordre public)’, ‘public health’, ‘public morals’, ‘national security’, ‘public safety’ and ‘rights and freedoms of others’. For a few rights, such as freedom from torture or slavery, no limitations have been formulated

6. Restrictions (5)
When a right is subject to a limitation, no other limitations are permitted and any limitation must comply with the following minimum requirements:
The limitation must not be interpreted so as to jeopardise the essence of the right concerned;
The limitation must be interpreted strictly in the light and context of the particular right;
The limitation must be prescribed by law and be compatible with the object and purpose of the instrument;
The restriction must be based on a law;
The restriction must be necessary; there must be a pressing social need, assessed on a case-by-case basis. That the law would be useful is in itself not sufficient; it must be consistent with other protected rights. In some treaties, the condition that it be ‘necessary’ (in a democratic society) is added; and
The restriction must be justified by the protection of a strictly limited set of well-defined public interests, which usually includes one or more of the following grounds: national security, public safety, public order (ordre public), the protection of health or morals, and the protection of the rights and freedoms of others.

7. Restrictions (6)
Most of these requirements have been developed by academia and the jurisprudence of major human rights bodies. In this regard it is important to bear in mind the Siracusa Principles on the limitation and derogation provision in the International Covenant on Civil and Political Rights
The Siracusa Principles were adopted by a group of 31 distinguished experts in international law convened by the International Commission of Jurists, who met in Siracusa, Sicily in 1984.
In sum, any restriction on the enjoyment of the rights enshrined in human rights instruments must be legally established, non-discriminatory, proportional, compatible with the nature of the rights, and designed to further the general welfare. Finally, it is also important to stress that the burden falls upon states parties to prove that a limitation imposed upon the enjoyment of the rights is legitimate. This is, of course, a heavy burden of proof, but it is consistent with the object and purpose of human rights treaties to protect the individual

8. Derogations (1)
Some human rights instruments allow states to take measures derogating temporarily from some of their obligations
Derogating measures must be of an exceptional and temporary nature
There are derogation clauses in, inter alia, Article 15 of ECHR, Article 27 of ACHR and Article 31 of European Social Charter
Some human rights instruments, such as the Convention on the Right of the Child, the ICESCR, and the African Charter on Human and Peoples’ Rights, do not contemplate any derogation clause.
The rationale for derogation provisions is to strike a balance between the sovereign right of a government to maintain peace and order during public emergencies, and the protection of the rights of the individual from abuse by the state
Thus, the state is allowed to suspend the exercise of some rights when necessary to deal with an emergency situation (e.g., derogation of the right to peaceful assembly), provided it complies with safeguards against any abuse of these derogation provisions

9. Derogations (2)
When derogation measures are allowed, such derogations have to meet several criteria:
There must be a war or general state of emergency threatening the life of the nation;
The state of emergency must be officially proclaimed;
Measures may not go beyond the extent strictly required by the situation;
Measures may not be inconsistent with other obligations under international law; and
Measures may not be discriminatory solely on grounds of race, colour, sex, language, religion or social origin

10. Derogations (3)
A state availing itself of the right of derogation must immediately provide justification for its decision to proclaim a state of emergency and also for any specific measure based on such a proclamation
With regard to derogations and limitations, the Final Document of the 1991 Moscow meeting of the Conference on Security and Co-operation in Europe (CSCE), states:
The participating states reaffirm that a state of public emergency is justified only by the most exceptional and grave circumstances [...]. A state of public emergency may not be used to subvert the democratic constitutional order, nor aim at the destruction of internationally recognised human rights and fundamental freedoms. [...] The participating states confirm that any derogation from obligations relating to human rights and fundamental freedoms during a state of public emergency must remain strictly within the limits provided for by international law, in particular the relevant international instruments by which they are bound, especially with respect to rights from which there can be no derogation

11. Derogations (4)
Limits, in the form of the criteria to be met, have thus been set out on the extent to which states can derogate from their human rights obligations
Moreover, as stipulated in a number of international conventions (e.g., Article 4(2) of ICCPR, Article 15(2) of ECHR and Article 27(2) of ACHR), a number of rights can under no circumstances be limited or derogated from
Such rights are often called notstandsfest - a German term - and include the right to life, freedom from slavery, torture and imprisonment for debt, the principle of legality in the field of criminal law, freedom of thought, conscience and religion and the right to juridical personality
The Human Rights Committee, in its General Comment 29 sets out in detail the conditions that must be met in order to derogate from the rights contained in the ICCPR and refers in length to those rights which are not derogable
The Committee established that the rights contained in Article 4(2) of ICCPR are not the only non-derogable rights; there are elements of other rights not listed in Article 4(2) that cannot be subject to lawful derogation