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While human rights are ‘fundamental’, in many situations they may be limited or dero

gated from. Discuss situations where limitation and derogation are used, and ana
lyse the desirability/necessity of such policies.
The fundamental rights of man provide the ethical basis for the rule of internat
ional law and became a principle of positive law of civilised states following
the aftermath of the second world war. The UN Charter 1945 created the United N
ations whose main purpose was the promotion of human rights Its preamble links
human rights with human dignity, but apart from the right to equal protection th
e UN Charter does not incorporate a bill of rights. This came shortly afterwards
via the UDHR 1948 which provided a broad coverage of human rights topics based
on ‘common humanity’, which was aimed at exerting a universal, moral and political i
nfluence on all corners of the world rather than constituting a legally binding
instrument. Most of the civil and political rights were quickly codified in the
ECHR 1950 and became legally binding on European Contracting Parties at regional
level. The UDHR prompted the prolonged drafting of both the ICCPR and the ICESC
R 1966 which essentially split ‘universal’ fundamental human rights into two categor
ies, developing them in more detail while prescribing corresponding duties of S
tate Parties for the attainment of those rights. Thus fundamental rights became
legally binding on State Parties to the Covenants at international level and in
theory accessible to a greater number of individuals. A multitude of conventions
, declarations and resolutions have further developed and focused more specifica
lly on certain aspects of these rights, evolving and changing their character as
well as their implementation,# together with a variety of regional human right
s arrangements which provide possible methods for their protection and promotion
.
This paper attempts to define the nature and scope of a ‘fundamental’ right, and ana
lyses the derogation systems and limitation clauses of the ICCPR and its regiona
l counterpart, the ECHR.
Sources of fundamental human rights
Many fundamental rights can be found embedded in customary law in addition to th
ose that have emerged or been codified through the positive law of treaties and
declarations. The right to life, freedom from torture, freedom from racial discr
imination, prohibition on genocide, right to education, right of self-determinat
ion can be considered to be customary international law and therefore binding on
States which have not ratified treaties protecting those rights.# For custom to
exist there must be both state practice to that effect and opinio juris i.e. th
e practice must be motivated by a belief that it is required by law. There are t
wo opposing approaches to the determination of customary international law. Ther
e is traditional custom which is constructed primarily from state practice or ac
tion, reliance on which provides continuity with past actions and reliable predi
ctions of future actions. In contrast, there is modern custom which is derived m
ainly from statements of rules rather than actions and develops more quickly bec
ause it is deduced from treaties and declarations. Modern custom is somewhat amb
iguous because it is a mixture of what the law is and what the law should be. Ro
berts argues that although it is more democratic, it reflects ideal, rather than
actual, standards of conduct; and its normative nature leads to an enormous gap
between asserted customs and state practice.#
The UDHR is perceived to be the ‘constitution’ of the human rights movement and alth
ough only recommendatory, it has become relevant to norm formation and influenti
al with respect to state behaviour as ‘soft law’. There are widely supported argumen
ts for viewing all or parts of it as legally binding as a matter of customary in
ternational law.# The ICJ in the Namibia Opinion stated ‘one right which must cert
ainly be considered a pre-existing binding customary norm which the UDHR codifie
d is the right to equality, which by common consent has ever since the remotest
times been deemed inherent in human nature…it is the foundation of other human rig
hts which are no more than its corollaries.’# It can be assumed therefore that the
right to equality has a ‘fundamental’ status.
States can vary and dispense with rules of international law as an expression of
their will within the limits of an agreement or by persistent objection to cust
omary law. However, they cannot derogate from rules of jus cogens, i.e. perempto
ry norms of general international law ‘A peremptory norm of general international
law is a norm accepted and recognised by the international community of States
as a whole as a norm from which no derogation is permitted and which can be modi
fied only by a subsequent norm of general international law having the same char
acter.’# No act done contrary to a rule of jus cogens can be legitimate and any in
ternational agreement that violates them is void.# There are very few rules with
this character and most have their roots in traditional customary law. There se
ems to be general agreement that prohibition of the use of force, piracy, genoci
de, slavery, the principle of self-determination, racial discrimination, prohibi
tion of the use of torture, the equality of states and the observance of human r
ights fall into this category; as well as the murder or causing the disappearan
ce of individuals and prolonged arbitrary detention.# Sinclair comments that ‘ideo
logical differences and disparities of wealth between the individual nation Stat
es which make up the international community, combined with the contrasts betwee
n the objectives sought by them, hinder the development of an overarching commun
ity consensus upon the content of jus cogens.# Henkin suggests that such non-con
ventional law is ‘constitutional’ in a new sense because it is a radical derogation
from the axiom of ‘sovereignty’ as it is not based on consent, and binds states rega
rdless of their objection because it is a product of common consensus from which
few dare dissent….and is being made, purposefully, knowingly, wilfully, and conce
rn for human rights has provided a principal impetus to its growth.’# Koskenniemi
comments ‘it is inherently difficult to accept that states are legally bound not t
o engage in genocide only if they have ratified and not formally denounced the 1
948 Genocide Convention. Some norms are so basic, so important, that it is more
than slightly artificial to argue that states are legally bound to comply with t
hem simply because there exists an agreement between them to that effect, rather
than because, in the words of the ICJ, non-compliance would ‘shock the conscience
of mankind’ and be contrary to ‘elementary considerations of humanity.’# The Internat
ional Law Commission in its report to the General Assembly# declined from includ
ing examples of jus cogens because they were of the opinion that misunderstandin
gs and/or limitations could occur. The emergence of new rules of jus cogens is a
possibility# and the full content of these rules remains to be worked out in th
e practice of states and the jurisprudence of the international courts.#
Although there is no universal agreement as to the precise extent of the ‘human ri
ghts and fundamental freedoms’ guaranteed to all by the UN Charter, there is at pr
esent no dissent from the view that the guarantees include, at a bare minimum, t
he right to be free from torture. This prohibition has become part of internatio
nal customary law.# Freedom from torture is universally non derogable and has no
legal limitations. It is an absolute right even though it is generally consider
ed that all of the rights codified in the ICCPR are equal and indivisible. Mero
n observes that caution should be exercised when resorting to a hierarchical ter
minology because other human rights are relegated to inferior, or second class,
status; thus resulting in unnecessary mystification which may adversely affect t
he credibility of human rights as a legal discipline.# Van Boven argues that it
is more favourable to distinguish fundamental, or superior, human rights from ot
her human rights because their validity is not dependent on State acceptance. Th
e fact that certain rights are specifically safeguarded in a number of internati
onal and regional instruments is strong argument in favour of the contention tha
t there is a minimum catalogue of fundamental human rights.#
Derogation under the ICCPR
Art 4 ICCPR provides the Covenant with an inbuilt derogation system, designed to
be used as a temporary measure applicable in the case of a grave threat to the
survival and security of a nation. Art 4(2) states that ‘no derogation from articl
es 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made.’ These are the rig
ht to life, prohibition from torture and cruel, inhuman or degrading treatment o
r punishment, prohibition from slavery and being held in servitude, prohibition
from imprisonment for inability to fulfil a contractual obligation, prohibition
from retrospective criminal legislation, the right to recognition everywhere as
a person before the law, and the right to freedom of thought, conscience and rel
igion. The Human Rights Committee comment that ‘conceptually, the qualification of
a Covenant provision as a non-derogable one does not mean that no limitation or
restrictions would ever be justified,’ citing Art 18 to demonstrate that the perm
issibility of restrictions is independent of the issue of derogability. Therefor
e, if a state derogates from Art 18 in times of serious public emergency it mus
t justify it’s actions by referring to Art18(3) which states ‘freedom to manifest on
e’s religion or belief may be subject only to such limitations as are prescribed b
y law and are necessary to protect public safety, order, health, or morals or th
e fundamental rights and freedoms of others.’ This is not only essential in a demo
cratic society, it is fundamental to the right of self-determination.
Art 4(1)ICCPR permits a temporary derogation from the remaining rights and freed
oms enshrined in the Covenant ‘in time of public emergency which threatens the lif
e of the nation.’ Use of Art 4(1) is strictly controlled: the State Party must of
ficially proclaim the existence of such a situation, take measures only to ‘the ex
tent strictly required by the exigencies of the situation’ that are ‘not inconsisten
t with their other obligations under international law’ nor discriminatory ‘solely o
n the ground of race, colour, sex, language, religion or social origin.’ Furthermo
re, Art 4(3) requires the State Party to notify other parties to the Covenant vi
a the UN regarding any invocation of Art 4(1) and justify their actions with the
clear objective of resuming normalcy and respect of rights as soon as possible.
This mechanism is desirable as it potentially strikes a balance between nationa
l security and an abusive suspension of human rights.
Limiting derogations to only those ‘strictly required’ in the situation together wit
h competent supervisory control reflect the principle of proportionality which i
s at the core of ‘treaty’ derogation systems. Arbitrary and unjustifiable discrimina
tory distinctions during a state of emergency are outlawed by the inclusion of t
he word ‘solely,’ although this does not prevent a State Party targeting a particula
r group who pose a distinct threat not posed by other members of the community.#
The Human Rights Committee# commented that if action conducted under the author
ity of a State constitutes the basis for individual criminal responsibility for
a crime against humanity by the person involved in that action, then the state c
annot exempt itself from responsibility by invoking Art 4, and stresses that the
Rome Statute of the International Criminal Court is also relevant to the interp
retation of Art 4. Crimes against humanity include not only violations of the ri
ght to life, prohibition on torture and the prohibition on slavery, but also inc
lude practices that violate the right to liberty and security of person (Art 9),
liberty of movement (Art 12), the right to equal protection of the law (Art 26)
, and the right of minorities to enjoy their culture and religion (Art 27). The
fundamental requirements of a fair trial as guaranteed under international human
itarian law during armed conflict, i.e. criminal trial before a court of law, tr
ial within a reasonable time or release, the presumption of innocence, and effec
tive judicial review of detention may not be diminished by a State Party’s decisio
n to derogate. Furthermore, the obligation under Art 2(3) requiring the State Pa
rty to provide an effective remedy to individuals whose rights have been violate
d must still be secured even where the practical functioning of its procedures g
overning judicial and other remedies has been adjusted ‘to the extent that is stri
ctly required by the exigencies of the situation.’#
Limitation under the ICCPR
A State Party has a duty to respect an individual’s dignity and not interfere unne
cessarily with their declared rights. There is a correlative duty under Art 29(
1) UDHR on all other persons to refrain from interfering with another’s rights and
therefore a positive obligation on the State Party to ensure, through the imple
mentation of legislation and other institutional means, that rights are realised
and protected. Limitation clauses provide a balancing mechanism whereby a State
Party can resolve conflicts between one right and another e.g. the right to fre
edom of expression and the right to privacy; as well as secure, so far as possib
le, equality to all individuals so that the realisation of an individual’s rights
is not attained at the expense of deprivation of another’s rights.
Under the ICCPR the right to hold opinions and freedom of expression# carries wi
th it special duties and responsibilities and therefore may be restricted if ‘nece
ssary’ for the respect of the rights and reputations of others, and for the protec
tion of national security, public order, public health or morals. Freedom of mov
ement,# the right to peaceful assembly# and the right to freedom of association#
are also qualified and may be limited if in conformity with the law, necessary
in a democratic society, and in the interests of national security, public safe
ty, public order, public health, morals or the protection of the rights and free
doms of others.
Limitation clauses allow State Parties to maintain sovereignty. They provide a n
ecessary degree of flexibility to the ICCPR enabling ‘universal’ application of huma
n rights whereby State Parties can ‘marginally’ adapt treaty norms to suit their inh
erent territorial diversity. Matou points out that ‘voluntary, unforced, co-mingl
ing of cultures has led to a more vital and creative existence…and the human right
s movement should…frown upon homogenisation and the imposition of uniformity.’#
The system under the ECHR
The ECHR is a multi-lateral, regional human rights treaty that is similar in man
y respects to the ICCPR but does not refer to the principle of self-determinatio
n or the rights of minority groups. It has become the most judicially developed
of all the human rights systems and provides a compulsory mechanism# for individ
uals, groups, legal persons and non-governmental organisations whose rights have
been violated, to petition the European Court of Human Rights (ECtHR) once they
have exhausted domestic remedies. In addition, there is provision for inter-sta
te complaints although use of this is rare.# The status of the ECtHR is that of
a ‘constitutional court’ in its own right and therefore its relationship to nationa
l courts encroaches to some extent on State sovereignty. To counterbalance part
ial loss of sovereignty, there is no binding precedent in the jurisprudence of t
he ECtHR, and elaborate procedures regarding choice of judges and committee memb
ers help to ensure judicial independence and lack of political bias. All final j
udgements of the ECtHR are binding on the respondent Contracting Party concerned
, who are obliged to provide an effective remedy to the individual whose rights
have been violated.# The ECtHR treats the ECHR as a living instrument and recogn
ises that the proper scope and content of fundamental freedoms are dynamic and c
onstantly developing in reaction to world events, other international treaties,
changing moral and social structures and beliefs, and scientific and medical dev
elopments.# See p 965
Becoming a party to the ECHR is a prerequisite of State membership to the Counci
l of Europe and the European Union. Contracting Parties must ensure that their d
omestic legislation enables ratification within a period of two years and that t
heir domestic judicial system promotes ECHR compliance. There are 46 member stat
es of the Council of Europe who are all parties to the ECHR. At present there ar
e eleven protocols to the ECHR which expand rights provisions and procedural me
chanisms. Most are optional to the ECHR and require individual ratification to b
ecome legally binding on Contracting Parties.
Derogation under the ECHR
Art 15 ECHR provides the derogation system for use in times of emergency. In com
parison to the ICCPR, Art 15(2) lists only four peremptory norms that are non-de
rogable. These are the right to life,# prohibition of torture,# prohibition from
slavery,# and no punishment without law.#
The right to life is a fundamental right but it is not regarded as an absolute r
ight, unlike the prohibitions of torture and slavery, and no punishment without
law. The right to life is controversial because it goes beyond the duty to refra
in from depriving people of life. Other rights impact directly on the right to l
ife e.g. the right to clean water, adequate nutrition, suitable housing. It is a
negative right which imposes onerous positive duties on the State to provide le
gal protection for the right to life both directly and indirectly. As medical te
chnology advances and moral conscience evolves, boundaries to the right to life
have become limitless and consequently a huge array of moral, ethical and legal
implications have arisen. Just how far and to what extent should the right to li
fe be protected? National governments are unwilling to take a firm stand on deli
cate issues and so a gap has arisen between law and morality which the ECtHR has
had to fill on an individual case basis. However, the duty not to deprive an i
ndividual of life is much more clear cut. Art 2(2) provides three exceptions whe
re deprivation of life by the use of force will not contravene Art 2 provided th
e use of force is no more than ‘absolutely necessary’. These are a) in defence of an
y person from unlawful violence, b) when effecting a lawful arrest or preventing
the escape of a prisoner, and c) in lawful action to protect civil peace. The E
CtHR applies the proportionality test to these exceptions very strictly. In McCa
nn and Others v UK (1995) the Court held the UK responsible for the death of ter
rorist suspects, even though the agents of the security force honestly believed
that their lives and those of others were imminently at risk, the control and pl
anning of the operation was inadequate. Similarly, in Gul v Turkey (2000) the u
se of lethal force was disproportionate in the circumstances because there was n
o reasonable belief that anyone’s lives were in danger. However, where there is no
evidence that the control and planning of an operation is in question and the u
se of force is no more than ‘absolutely necessary’ for the purposes of protecting t
he right to life the State will not be held responsible: Andronicou and Constant
ine v Cyprus (1997).
Art 15(1) permit’s a Contracting Party to derogate from other rights under the ECH
R in time of war or other public emergency threatening the life of the nation to
the ‘extent strictly required by the exigencies of the situation’ provided that suc
h measures are not inconsistent with its other obligations under international l
aw. Art 15(3) requires the Contracting Party to keep the Secretary General of th
e Council of Europe fully informed regarding the derogation, justifying the meas
ures taken, with the objective of resuming full execution of the provisions of t
he ECHR as soon as possible.
In Brannigan and McBride v UK# the ECtHR stated that as the responsibility for ‘th
e life of its nation’ falls with the State the national authorities are in princip
le in a better position than the international judge to decide both on the prese
nce of such an emergency and on the nature and scope of derogations necessary to
avert it. Accordingly, a wide margin of appreciation should be left to the nati
onal authorities. But it is for the ECtHR to rule on whether the States have gon
e beyond the ‘extent strictly required by the exigencies’ of the crisis. Thus the do
mestic margin of appreciation is accompanied by European supervision. In exercis
ing its supervision the Court must give appropriate weight to such relevant fact
ors as the nature of the rights affected by the derogation, the circumstances le
ading to, and the duration of, the emergency situation. Marks# comments that the
Court’s decision in Brannigan suggests that Art 15 may be substantially a helpmat
e for governments: a means of preserving governmental freedom of action and defe
nding government policy. To this extent, the prospects for human rights protect
ion under the EHRC in a situation designated ‘emergency’ is less than encouraging an
d increases the likelihood of state derogation whenever it simply consider the s
ituation expedient. In A and others v Secretary of State for the Home Department
# the ECtHR upheld the decision in Brannigan together with the subsequent decisi
ons of Aksoy# and Marshall#, acknowledging the deference owed by courts to polit
ical authorities and their ‘relative institutional competence.’ However, the ECtHR s
tressed the necessity of determining ‘function’ within the context of the separatio
n of powers, stating ‘the more political a question is, the more appropriate it wi
ll be for political resolution and the less likely it is to be an appropriate ma
tter for judicial decision.’
With regard to breach of Art 15 by a Contracting Party outside its territory the
ECtHR is reluctant to extend its jurisdiction beyond the confines of the Counci
l of Europe: Bankovic and others v Belgium and others (2001). However, it is cle
ar from obiter dictum in Issa and Others v Turkey that a State may be held accou
ntable for violations of Convention rights of persons in another territory who a
re under the Contracting Party’s authority and control provided it can be proved t
hat violations have been committed stating ‘Art 1 cannot be interpreted so as to a
llow a Contracting Party to perpetrate violations of the Convention on the terri
tory of another State, which it could not perpetrate on its own territory.’ In R(A
l-Stein) v Sec. State for Defence (2005), LJ Sedley discussed the question of ho
w much ‘control’ is ‘effective control’ for the purposes of enforcing the full range of
Convention rights. Taking other international obligations into consideration and
stressing the fact that the ECtHR marches with international humanitarian law a
nd the law of armed conflict, he stated ‘no doubt it is absurd to expect occupying
forces in the near chaos of Iraq to enforce the right to marry vouchsafed by Ar
t 12 or the equality guarantees vouchsafed by Art 14.’
It can be assumed therefore that an element of common sense distinguishes certai
n rights from others and that human rights that are classed as ‘fundamental’ are ass
ured a high degree of protection on a regional and international level.
Limitation of rights under the ECHR
The limitation clauses in the ECHR are there generally to protect the rights of
others or the general interests of society. The following rights expressly allow
for limitation by a Contracting Party under certain conditions. These are the r
ight to respect for family and private life,# freedom of thought, conscience and
religion,# freedom of expression,# and freedom of assembly and association.# T
he criteria for justifiable interference is expressly stated in paragraph 2 of e
ach of the above Articles. Essentially there are three elements that must be est
ablished: the interference must be ‘prescribed by law‘, have a ‘legitimate aim’ regardin
g the purposes of the paragraph, and be ‘necessary in a democratic society’ in pursu
it of the legitimate aim.
To be ‘prescribed by law’ means not to be unlawful and to comply with European stand
ards of legality which require that the interference must be regulated by the do
mestic law of the jurisdiction concerned, and the relevant law must be anti-disc
riminatory, sufficiently clear and accessible to individuals so that they can pr
edict with reasonable certainty when and how their rights will be affected.#
The ECtHR assesses ‘necessary in a democratic society’ against a ‘rich’ model of democra
cy where minorities must be adequately protected against unfair treatment and ab
use by the majority. Interference with a right must be shown to have been a resp
onse to a pressing social need for that purpose and a proportionate response to
that purpose.# This redresses the fact that minority rights were not codified in
the ECHR, and puts the Convention on a more level footing with the later drafte
d ICCPR.
Proportionality is assessed by balancing whether the interference is more extens
ive than is justified by the legitimate aim, together with ascertaining whether
there are proper safeguards against arbitrariness. Factors taken into account in
clude whether it is possible to achieve the legitimate aim by less intrusive mea
ns, whether the right holder is deprived of the very essence of the right, wheth
er the right is sufficiently important in the circumstances to warrant a strong
justification, and whether the interference causes harm to the right-holder whic
h is serious enough to outweigh the furthering of the legitimate aim.#
A ‘margin of appreciation’ is allowed to Contracting Parties when the ECtHR assesses
whether the State’s judgements about the existence of a pressing social were
responded to appropriately. This is unique to the ECHR system and is especially
important to issues of morality that differ to some extent amongst Contracting P
arties.
It is based on the fact that Contracting Parties are in a better position than t
he ECtHR
to determine what is necessary at national level in relation to such things as p
ublic
morals in accordance with current societal standards within their territory. In
some
ways it is a concession to Contracting Parties by way of maintaining some degree
of
sovereignty, but on the other hand it undermines universal human rights standard
s.#
In Handyside the Court stated ‘it is not possible to find in the domestic law of
Contracting States a uniform European conception of morals. The view taken by th
eir
respective laws of the requirement of morals varies from time to time and from p
lace
to place, especially in our era which is characterised by a rapid and far-reachi
ng
evolution of opinions on the subject.’ The application of these rights within each
society and culture will vary. The leeway provided for by the margin of apprecia
tion is
essential because it enables the ECHR to be adapted at regional level where dive
rsity
amongst Contracting Parties is still an issue, even though they are westernised
,
democratic, and presumed to have the same ideals.
Para 5 of the Vienna Declaration and Programme of Action 1993 agreed by consensu
s of all UN State parties, acknowledges that ‘the significance of national and reg
ional particularities and various historical, cultural and religious backgrounds
must be borne in mind.’
Conclusion
The degree of flexibility provided for via limitation clauses in both universal
and regional instruments is an application of cultural relativism. The margin o
f appreciation is essential to this flexibility. Fundamental human rights, or no
n-derogable rights are universal in their nature and should always be uniformly
respected. Other human rights are relative to each society or culture and any
rigidity in their application may erode a person’s dignity and sense of worth.