Published in July 2018.

 

 
  This module is a resource for lecturers  

 

Limitations permitted by human rights law

 

Not all human rights principles enjoy the same level of protection. Instead, they can have different legal characteristics, being absolute or non-absolute in nature or having inherent limitations.

Some of the most fundamental human rights are "absolute". Such rights include the prohibitions on torture, on slavery and on retroactive criminal laws. The absolute character of these rights means that it is not permitted to restrict these rights by balancing their enjoyment against the pursuit of a legitimate aim. For example, article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture". Similarly, in response to the practice of some States, the Human Rights Committee has stated that "[t]he prohibitions against the taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law" (Human Rights Committee General Comment CCPR/C/21/Rev.1/Add.11, para. 13(b)).

Most rights, however, are not absolute in character. States can limit the exercise of these rights for valid reasons, including the needs of countering terrorism, as long as they respect a number of conditions.

In the case of some rights, the conditions for legitimate limitations are spelled out in the treaty provisions enshrining the right. Examples are the rights to freedom of expression, freedom of association, freedom of assembly and freedom of movement, and the requirement of publicity of court hearings. These rights are accompanied by various grounds, such as national security or public order, as well as conditions to be met in order for them to be legitimately limited. Notably, the restrictions provided for in the text, such as in articles 18(3) and 19(3) of the International Covenant on Civil and Political Rights (ICCPR), exist and may be relied upon independently of any declaration of a state of emergency. Indeed, even in times of public emergencies as understood in article 4 ICCPR explained below, States may elect to rely upon these restrictions instead of seeking derogations.

In the case of some other rights, the human rights treaty provision limits itself to stating that the right may not be interfered with "arbitrarily". This is, for instance, the case of article 9, which requires that deprivation of liberty must not be arbitrary (discussed at length in Module 10). The notion of "arbitrariness" is not to be equated with "against the law", but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.

The conditions for legitimate limitation of non-absolute rights without derogation

On the basis of provisions such as article 19 of the International Covenant on Civil and Political Rights protecting the right to freedom of expression (other examples include articles 18, 21, and 22), human rights courts and treaty bodies have developed a test to establish whether a measure limiting a non-absolute right is legitimate. The following questions must be asked:

  • Is there a legal basis for the measure limiting the right?
  • Does the limitation on the right pursue a legitimate aim such as respect of the rights or reputations of others, the protection of national security, the maintenance of public order or public health or morals?
  • If so, is the limitation necessary to achieve the legitimate aim, and is the extent of the limitation proportionate in pursuit of the identified legitimate aim? The existence and effectiveness of procedural safeguards will be a key aspect of the assessment whether the limitation of the right is proportionate.
  • Does the restriction respect the principle of equality? Is it non-discriminatory? Measures that limit rights in a discriminatory way will fail the test of proportionality. Therefore, the question of discrimination is generally considered one aspect of the necessity and proportionality test.

Only if all of these questions can be answered in the affirmative in a specific case will a restriction on a non-absolute right be permissible under international human rights law.

Note that this test was developed to examine the permissibility of measures interfering with rights explicitly permitting restrictions and spelling out the legitimate aims justifying restrictions (e.g. articles 18(3) and 19(3)). However, very similar reasoning is in fact used to assess whether measures limiting other non-absolute rights are permissible. An example is that detention will be considered arbitrary not only if it is devoid of a legal basis, but also if it is discriminatory, or completely disproportionate to the legitimate aim to be achieved. (See, e.g., Human Rights Committee (1994). Views: Mukong v. Cameroon. 10 August. Communication No 458/1991).

Finally, some rights are subject to what could be termed 'inherent' limitations. The right of an accused person in a criminal case to be tried without "undue delay" is an example. What is a reasonable delay is to be assessed in the circumstances of each case, taking into account the complexity of the case (which in terrorism cases may be considerable), the conduct of the accused, and the manner in which the matter was dealt with by the investigating and judicial authorities. These limitations are not articulated in the texts of human rights treaties, rather have been developed by national and international courts and other treaty monitoring bodies applying human rights norms to specific cases before them.

 
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