1 M E Badar, Basic Principles Governing Limitations On Individual

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Basic principles governing limitations on

individual rights and freedoms in human
rights instruments
Mohamed Elewa Badar
a
Ministry of justice, Egypt
Published online: 01 Dec 2011.
To cite this article: Mohamed Elewa Badar (2003) Basic principles governing limitations on individual
rights and freedoms in human rights instruments, The International Journal of Human Rights, 7:4,
63-92, DOI: 10.1080/13642980310001726226
To link to this article: http://dx.doi.org/10.1080/13642980310001726226
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74jhr03.qxd 09/10/2003 09:42 Page 63
Basic Principles Governing Limitations

on Individual Rights and Freedoms
in Human Rights Instruments
M O H A M E D E L E WA B A D A R
Individual freedom has to be balanced with the freedom of other individuals and
with the reasonable demands of the community. A significant element in the
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development of international instruments protecting human rights was the

movement away from the use of single limitation clauses to the elaboration of
specific limitation clauses in each article. The limitation provisions are found in
several articles of the Covenants as well as in other regional human rights
instruments. Any restriction on the rights or freedoms provided for in universal
or regional human rights instruments must meet three requirements: first, it must
be prescribed by law (the principle of legality); second, it must have justified one
of the specified legitimate aims pursued in the particular article; and third, the
limitation in all circumstances must be necessary in a democratic society. The
purpose of this study is to examine the specific principles and notions related to
the limitation provisions in international and regional human rights instruments.
One of the most important tasks in promoting human progress is to

maintain a proper balance between the interests of the individual and
those of a democratic society, and between individual and collective
rights. Individual freedom has to be balanced with the freedom of other
individuals and with the reasonable demands of the community. Thus, in
an organised society there is an absolute necessity for harmonising the
rights of the individual on the one hand with the requirements of the
society on the other.1
A significant element in the development of international instruments
protecting human rights was the movement away from the use of single
limitation clauses to the elaboration of specific limitation clauses in each
article. The Universal Declaration of Human Rights contains a single
limitation clause of general scope that is applicable to all of the rights
and freedoms.2
Mohamed Elewa Badar, Ministry of Justice, Egypt
The International Journal of Human Rights, Vol.7, No.4 (Winter 2003) pp.6392
PU B L I S H E D BY F RA N K C A S S , LO N D O N
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64 T H E I N T E R N AT I O N A L J O U R N A L O F H U M A N R I G H T S
The limitation provisions are found in several articles of the

Covenants3 as well as in other regional human rights instruments.4
The travaux préparatoires of the International Covenant on Civil and
Political Rights (ICCPR) indicate that some representatives were
opposed the idea of general limitation provisions, but rather felt that the
Covenants rights would be stronger if limitations were set in force in
specific detail.5 The fact that there are no general limitation clauses in the
ICCPR or in the European Convention of Human Rights (ECHR),
American Convention on Human Rights (ACHR) and African Charter
on Human and Peoples Rights (ACHPR) has an important consequence:
limitations are permitted only where a specific limitation clause is
provided for and only to a certain extent, so as to assure maximum
protection to the individual.
Any restrictions on the rights or freedoms provided for in universal

or regional human rights instruments must meet three requirements:
first, it must be prescribed by law (the principle of legality); second, it
must have justified one of the specified legitimate aims pursued in the
particular article; and third, the limitation must in all circumstances be
necessary in a democratic society.
The first requirement means that the circumstances in which the
limitation will be imposed are clearly delineated in an accessible law,
whether that is statute law or common law. The second requirement is
that any restriction must be based on one of the permissible legitimate
aims listed as grounds for restrictions in the relevant provision such as
national security, public order, public safety. The third requirement
implies the notion of proportionality.
It might seem questionable, on the one hand, whether the legitimate
aims provided for in different human rights instruments have a known
meaning and can be interpreted in the abstract without regard to the
substance of the particular article, and on the other, whether the judicial
organs of these instruments apply the above three requirement in the
same manner. Alexandre Kiss observed, Even while the same words
should mean essentially the same thing in all the provisions of a text,
their scope and significance may vary according to the provision in
which they are included.6
The purpose of this study is to examine the specific principles and
notions related to the limitation provisions in international and regional
human rights instruments. The first part will examine the principle of
legality. The next section will elucidate the notion of national security. In
the following section the principle of a democratic society will be
discussed, analysed and examined. Finally, the conclusion will be
supported by some remarks and recommendations.
74jhr03.qxd 09/10/2003 09:42 Page 65
L I M I TAT I O N S O N I N D I V I D UA L R I G H T S A N D F R E E D O M S 65
THE PRINCIPLE OF LEGALITY
A Commentary
When analysing legal terms in the international law of human rights, it
is to some extent necessary to modify traditional juridical thinking, since
the very specificity of this branch of law conditions the content and
meaning of the notions used.7 The ECHR, the ICCPR, the ACHR and
ACHPR seek to ensure that the limitations which the majority may place
upon an individuals protected rights, in the name of the common or
competing interests, are imposed only if they are prescribed by law,
intended to achieve a legitimate objective, and are necessary in a
democratic society.
Not only the precise terms of the limitations attached to the different
articles vary, but also the judicial method for considering them, they are
in no way neutral, but have specific aim and content, from which they
draw their full legitimacy. Once the prima facie is engaged, the judicial
organs of these instruments ask: Is the interference prescribed by law?
Does it serve a legitimate objective? Is it proportionate to the end to be
achieved?8
A core concept in international human rights instruments
jurisprudence is the rule of law, no matter how desirable the end to be
achieved. No interference with a right protected under these instruments
is permissible, unless the citizen knows the basis for the interference
because it is set out in an ascertainable law. In the absence of such
detailed authorisation by the law, any interference, however justified,
will violate the rights and freedoms set out in these instruments.
In the French Declaration of the Rights of Man and of the Citizen of
1789, Article 4 stipulated that the limits on the exercise of the natural
rights of man can be determined only by law.
In the Universal Declaration of Human Rights the limitation clauses
provide that restrictions must be determined by law. In the Covenant
on Civil and Political Rights and other international human rights
instruments the limitation clauses provide that restrictions must be
provided by law, prescribed by law, in conformity with law, in
accordance with law.9 The African Charter contains neither derogation
nor a limitation clause. Rather, many of its provisions include clawback
clauses. Article 6 of the Charter guarantees the rights to liberty subject
to reason and conditions previously laid down by law. Article 8
guarantees the freedom of conscience and religion subject to law and
order. Article 9 guarantees the freedom of expression so long as it is
done within the law. Article 10 guarantees the freedom of association
so long as the person exercising the right abides by the law. Article 12
74jhr03.qxd 09/10/2003 09:42 Page 66
guarantees the freedom of movement provided the individual abides by

the law. Article 13 guarantees the right to participate in government in
accordance with the provisions of the law. Article 14 guarantees the
right to property with an extra provision that property may be
encroached upon in accordance with the provisions of appropriate
law.10
The requirement that all restrictions have a basis in national law is
referred to as the principle of legality.11 It has been observed that the
objective is the prevention of arbitrary restrictions on the rights and
freedoms by requiring that all restrictions be established by general
rule.12 There is but one exception to this principle, in the provision
permitting the exclusion of the press and the public from all or part of a
trial.13 In this matter, Kiss has observed that, the authority of the judge
to decide whether the circumstances for each case are such as to require
the exclusion, is provided by the Covenant14 and needs no basis in
specific national legislation. Other human rights instruments include
similar provisions, which authorise the judge to limit the right of public
hearing.15 Interestingly, Article 7 of the African Charter does not include
any provision permitting the exclusion of the press or public hearing,
since there is no mention of such rights in the above article.16
In the process of the elaboration of Art. 29(2) of the Universal
Declaration of Human Rights (UDHR), there was a proposal indicating
that the declaration could not be said to be universally applicable unless
it contained a mention of the law. By requiring that limitations should be
prescribed by law, the proposal was intended to protect the individual
against arbitrary measures which public authorities might be tempted to
introduce through administrative channels.17
Debates by the Human Rights Committee on Article 12 mirror the
awareness that the term provided by law may be interpreted as
authorising the State to impose any limitations they wished.18 It was
suggested that the article should state that the law must be in accordance
with the principles of the UN Charter and the UDHR.19 A proposal that
it should be consistent with the other rights recognized in the Covenant
was, however, preferred.20
There were other debates at the fifth session of the Commission on
Human Rights (1949) concerning the limitation provision of the right to
freedom of thought, conscience and religion where paragraph 3
provided that freedom to manifest ones religion or beliefs shall be
subject only to such limitation as are pursuant to law (prévues par la
loi).21 When this limitation provision was again discussed at the
Commissions eighth session (1952), there was a proposal from the
United Kingdom to replace the phrase pursuant to law by prescribed
74jhr03.qxd 09/10/2003 09:42 Page 67
by law, which was opposed by France because the phrase prescribed by
law in French embraced both the mandatory and permissive aspects of
law.22 However, the Commission adopted the United Kingdom
proposal.23
The term prescribed by law has been examined in the context of the
ICCPR in the Siracusa Principle adopted by a group of international
human rights experts.24 According to Principle No.15 restrictions should
be provided for by national law of general application, which is
consistent with the Covenant, it must not be arbitrary or unreasonable
(Principle No.16), and it must be clear and accessible to everyone
(Principle No.17).25
At the travaux préparatoires of the American Convention there was a
query by the Dominican Republic concerning the limitation provisions to
the right to freedom of movement, whether the expression by law

would include regulations adopted in conformity with the law, and it
proposed to change the term accordingly. In spite of this proposal, no
change was made.26
The Principle of Legality in Practice

The Human Rights Committee (HRC) has interpreted the term
prescribed by law in a Canadian Case, Pinkney v. Canada.27 This case
gives an example of how lawful interferences with privacy must be
sufficiently circumscribed in order to conform to the Article 17
guarantee. The author, a remand prisoner, complained of censorship of
his letters, and therefore a violation of his right to privacy in relation to
correspondence. The State Party explained the relevant law which
governed censorship of inmates letters.28 The HRC found that a
legislative provision in the very general terms of the above section did
not, in the opinion of the HRC, in itself provide satisfactory legal
safeguards against arbitrariness.29 From the aforementioned case, one
may deduce that the application of restrictions in any individual case
must be based on clear legal grounds and specific legal norms upon
which restrictions are founded.
In Maroufidou v Sweden30 the author claims that the decision to
expel her was in violation of Article 13 of the Covenant because it was
not in accordance with law. In her submission it was based on an
incorrect interpretation of the Swedish Aliens Act. The HRC takes the
view that the interpretation of the Swedish law is essentially a matter
for the courts and authorities of the State party concerned. The HRC
concluded that the phrase in accordance with law, which appears in
the above article, requires a State to apply the relevant provisions of its
domestic law in good faith and in a reasonable manner.31 Yet, the only
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inquiry which the expelled person should be entitled to ask the court
to make under Article 13 is whether the expulsion is in accordance
with domestic law, whatever the domestic law may be. According to
the Maroufidou decision, one may deduce that law is interpreted to
mean a States municipal law, thus it does not seem to prevent the
adoption by the State of a perverse substantive law. One may suggest
placing a broad interpretation on the word law, which would carry
out the object and the purpose of the Covenant. To avoid any
misunderstanding, it seems preferable to refer to the General
Comment on Article 12, where the HRC emphasised that:
In adopting laws providing for restrictions permitted by Article
12(3), States should always be guided by the principle that the
restrictions must not impair the essence of the right (cf. art. 5(1));
the relation between right and restriction, between norm and

exception, must not be reserved. The laws authorizing the
application of restrictions should use precise criteria and may not
confer unfettered discretion on those charged with their
execution.32
To be prescribed by law or in accordance with law, means that
there must be an ascertainable legal regime governing the interference in
question. The case law of the European Court of Human Rights
(ECt.HR) is a valuable guide on the interpretation of such a concept. In
Malone v United Kingdom the ECt.HR illustrates the term in accordance
with law by stating that:
The phrase in accordance with law does not merely refer back to
domestic law but also relates to the quality of law, requiring it to
be compatible with the rule of law, which is expressly mentioned in
the preamble to the Convention.33
In Sunday Times v United Kingdom the ECt.HR held that:
Firstly, the law must be adequately accessible: the citizens must be
able to have an indication that is adequate in the circumstances of
the legal rules applicable to a given case. Secondly, a norm cannot
be regarded as a law unless it is formulated with sufficient
precision to enable the citizen to regulate his conduct: he must be
able if need be with appropriate advice to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail.34
That does not mean that the individual should be able to anticipate the
quantum of a jury award; in Tolstoy v United Kingdom,35 the ECt.HR
74jhr03.qxd 09/10/2003 09:42 Page 69
held that the legal rules concerning libel damages were formulated with
sufficient precision, and that Article 10(2) of the ECHR did not require
an individual to be able to anticipate the quantum of a jury award. Libel
awards were therefore too uncertain to be prescribed by law.
It is not acceptable for interference with a Convention right to occur
without any legal regulation.36 Codes of practice or internal guidance are
unlikely to meet the requirements of certainty. In Malone v United
Kingdom37 the police tapped the applicants telephone. At the time when
this act took place, the only regulation of the practice was an internal
code of guidance produced by the police, which was not public. The
ECt.HR took the view that the applicant was not therefore able to assess
whether or not his telephone would be listened in to or what the basis in
law for the surveillance might be. Accordingly, the interference violated
the Convention because it was not prescribed by law.

Although the principle of legality requires conduct to be regulated by
rules that are clear and foreseeable, there is obviously a limit to what may
be demanded in this regard.38 The ECt.HR acknowledged that laws may
be couched in relatively vague terms because absolute certainty is
unattainable and because flexibility is necessary to keep pace with
changing circumstances.39 It has been observed that the requirement of
foreseeability might raise special questions, in cases concerned with
security or intelligence issues, where secret surveillance is strictly
required.40 Indeed, in the Malone case, the British Government argued
that where the law is not concerned with creating obligations for the
individual, the paramount consideration should not be certainty, but the
lawfulness of the action under domestic law.41 The ECt.HR accepted
that the requirements of the Convention cannot be exactly the same in
case of secret surveillance as when the restriction of the individuals
conduct is at issue. The ECt.HR held that the requirement of
foreseeability cannot mean that an individual should be enabled to
foresee when the authorities are likely to intercept his communication so
that he can adapt his conduct accordingly.42 A second question might
arise in cases concerning search warrants. In A.R.M Chappell v United
Kingdom, where the applicant complains of the search under the Order
of the house, which he occupied in part as his home, and which was
otherwise the business premises of his company.43 The European
Commission states that:
In this respect a significant aspect of the order was that it was
sought ex parte, so that the applicant was not on notice of the fact
that the plaintiffs wished to obtain such an order and was not
present in court when its terms were decided upon by the judge on
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the plaintiffs application. This ex parte nature of the Order is an

inherent, and in the respondent Governments submission
essential, aspect of Anton Piller Orders, since such orders are
granted in circumstances where there is a real and imminent risk
that evidence would be destroyed, and the interests of justice
frustrated, if the element of surprise was absent.44
Yet, one may deduce that the legal principles applied by the domestic
courts must be defined in a reasonably clear manner, although the
ECt.HR will tolerate certain variations in the application thereof,
keeping under consideration that the differences in the application of
domestic law must not have any substantial bearing on the basic elements
of the legal principles per se.45
The Inter-American Court of Human Rights (IACHR) has interpreted
the word law in an advisory opinion requested by the government of

Uruguay,46 where the IACHR emphasised that restrictions to basic
rights are only to be established by a law passed by Legislature in
accordance with the Constitution.47
It has been argued that the words determined by law, prescribed
by law, or provided by law, unless qualified, may be misused by the
State, which would be able to avoid its international obligations by
enacting laws limiting the individuals rights and freedoms.48 Yet a short
reference must be made to specific provisions designed to safeguard
the right protected by human rights instruments, for instance Articles
30 UDHR; 5(1) of the ICCPR, 17 of the ECHR and 30 of the ACHR.
These articles were intended to prevent any abuse by the States, or by
their inhabitants, of any of the rights given in these treaties.49 They also
develop one of the general principles of treaty construction that an
instrument will be construed in consonance with its dominant
purposes.50 One suggested interpretation of Article 17 of the ECHR is
that where a degree of protection is afforded a particular human right
or fundamental freedom, either under the national law of a contracting
party or under an international instrument to which it is a party,
nothing in the Convention may be relied upon to reduce the extent of
that protection.51
It should finally be pointed out that the preparatory work of the
ICCPR indicates that the purpose of Article 5(1), which was derived
from Article 30 of the UDHR, was to provide protection against any
misinterpretation of any provision which could be used to justify an
infringement of any right recognised in the Covenant or the
restriction of any right to a greater extent than provided for in the
Covenant.52
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SPECIFIED LEGITIMATE AIM: THE NOTION OF NATIONAL SECURITY
The concept of national security is as old as the nation state itself, but the
term in the English language is relatively new in origin. There are
difficulties involved in defining that term. National security is obviously
not necessarily synonymous with national safety53 in the sense that
failure to deal with a threat to national security risks national
extinction,54 although the ordinary meaning of the term does imply a
threat of a minimum level of severity.55 According to Thomas Emerson,
the term national security has for good reasons never been successfully
defined.56
In any event, the exact meaning of the term will vary from treaty to
treaty.57 In practice, where there is no independent organ established to
monitor the application of the treaty, or system of compulsory referral to
third party settlement, then the horizontal auto-interpretative nature of

international law means that a state invoking a national security clause
will usually be able to get away with it, although in extreme cases this
may lead to protest from other contracting parties and even counter-
measures inside and outside of the treaty regime.58
Almost all limitation clauses include national security as a ground
for restricting the right to which the law applies.59 The Covenant on Civil
and Political Rights includes national security as permissible basis for
restricting rights and freedoms.60 In drafting the words of limitation on
the right to freedom of thought, conscience, and religion, it was noted
that the terms national security and public safety were not sufficiently
precise to be used as a basic for the limitation of the exercise of the
rights mentioned above.61 Consequently, the term national security was
omitted from the original draft proposals.62 The importance of
narrowing the scope of national security was clear to the drafters:
If limitations were not clearly defined, but couched in general
terms, there was little guarantee that rights would not be violated.
If freedom of worship and freedom of information might be
abridged on the basis of such vague expressions as public order
and national security, such freedoms were in great jeopardy
indeed. In the name of public order many a saintly character had
been crucified, in the name of national security many a patriot
guillotined. It would be better to have no Covenant than for it to
be an instrument for suppressing human liberty.63
National security is frequently used in conjunction with other terms of
limitation. For instance both Articles 21 and 22(3) permit limitations on
grounds of national security or public safety. The use of both terms,
74jhr03.qxd 09/10/2003 09:42 Page 72
national security and public safety together, in certain articles, but

individually in others, implies that the terms have alternative, not equivalent
meanings. The limitations laid down in Article 18(3) where one clause lists
public safety but not national security indicates that the omission of the
term national security was intentional, and that the exigencies of national
security do not justify limitations on freedom to manifest ones religion or
belief.64 In the Covenant on Economic, Social and Cultural Rights, the right
to form or to join trade unions, and the right of these unions to function
freely as guaranteed by Art. 8 (1) (a) and (c) may be limited if necessary in
a democratic society in the interest of national security or public order.
In the European Convention, the notion national security is found
in the following provisions: Art. 6(1) (right to public trial); Art. 8(2)
(right to respect for ones private and family life, home and
correspondence); Art. 10(2) (freedom of expression); Art. 11(2)

(freedom of peaceful assembly and association); Art. 2(3) of Protocol
No. 4 (freedom of movement and residence); and Art. 1(2) of Protocol
No.7 (certain guarantees linked to the expulsion of aliens). While in the
American Convention the terms national security and public order are
both to be found in the following limitation provisions: Art. 13(2)
(freedom of thought and expression); Art. 15 (right to peaceful
assembly); Art. 16(2) (freedom of association); and Art. 22(3) (freedom
of movement and residence). In the African Charter the term national
security is only found in two provisions: Art. 11 (freedom of assembly),
Art. 12 (2) (freedom of movement and residence).
Unfortunately, the travaux préparatoires of the European
Convention, like the American Convention, do not elucidate the notions
of national security or public order. Consequently, their meaning has to
be derived from the relevant case law.
The Notion of National Security in Practice

The secrecy inherent in the concept of national security makes
adjudication on the permissibility of restrictions based on national
security difficult. National security has been invoked as a ground for
restriction before the Human Rights Committee. In Kim v Republic of
Korea,65 the author complained of his conviction under the National
Security Law for expressing opinions sympathetic to an anti-State
organization, namely the democratic Peoples Republic of Korea DPRK
(North Korea). The State party submits that it is illegal to produce and
distribute printed materials that praise and promote North Korean
ideology it argues that such activities, directed at furthering these
violent aims, cannot be construed as peaceful.66 The Supreme Court held
that the mere knowledge that the activity could be of benefit to North
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Korea was sufficient to establish guilt. The Committee has to consider
whether the acts done by the author were of a nature to attract the
restriction allowed by Article 19(3) namely the protection of national
security. It is plain that North Korean policies were well known within
the territory of the State party and it is not clear how the (undefined)
benefit that might arise for the DPRK from the publications of views
similar to their own created a risk to national security, nor its clear what
was the nature and extent of any such risk. The Committee emphasised
that there is no indication that the courts, at any level addressed those
questions or considered whether the contents of the speech or the
documents had any additional effect upon the audience or readers such
as to threaten public security, the protection of which would justify
restriction within the terms of the Covenant as being necessary.67 The
Committee considers, therefore, that the State party has failed to

specify the precise nature of the threat allegedly posed by the authors
exercise of freedom of expression, and that the State party has not
provided specific justifications as to why over and above prosecuting the
author was necessary for national security. The Committee considers
therefore that the restriction of the authors right to freedom of
expression was not compatible with the requirements of Article 19(3) of
the Covenant.68
In Mukong v Cameron,69 and Sohn v Republic of Korea,70 the
Committee followed the same manner in the precedent case, which
indicates that the HRC is reluctant to allow restrictions on free
expression for the purposes of national security and public order, at least
in the absence of detailed justifications by the State party.
However, national security and public order are perhaps the
limitations which are most often abused by States; they are often invoked
to protect the elite position of the government, rather than truly to
protect the rights of a States population.71 The case of V.M.R.B. v
Canada72 highlights one of the dilemmas entailed in national security
exceptions to human rights. In that case, the HRC found that the author,
who had been deported, had been in Canadian territory unlawfully, and
therefore ineligible for Article 13 protections. Of most interest however
are the following comments by the HRC:
Furthermore, the State party has pleaded reasons of national
security in connection with the proceedings to deport him. It is not
for the Committee to test a sovereign States evaluation of an
aliens security rating.73
This phrase was repeated ad verbum in J.R.C. v Costa Rica.74 Yet, this
statement regarding States evaluation of the security ratings of aliens
74jhr03.qxd 09/10/2003 09:42 Page 74
seems to render such evaluations non-justiciable under the ICCPR. In

other words, this statement potentially invites States parties to defend
allegations of Article 13 with superior claims of national security,
keeping in consideration that the HRC will not examine the merit of
those claims. Furthermore, it undermines the implications in the word
compelling that States parties are required to furnish persuasive
evidence of serious national security dangers.75
It should be pointed out that in its General Comment on Article 18
the HRC draws the attention of States parties to the fact that para.3 of
Article 18 was strictly interpreted, emphasising that: Restrictions are not
allowed on grounds not specified there, even if they would be allowed as
restrictions to other rights protected in the Covenant, such as national
security.76
The European Convention in Article 8(2) permits restrictions on the

right to privacy for national security and public safety as well as for the
economic well-being of the country. National security has been
successfully invoked as a ground for restriction before the European
Court. In Klass v Federal Republic of Germany77 concerning the
legitimacy of secret surveillance the ECt.HR accepted the governments
claim that secret surveillance of telephone calls was undertaken in the
interests of national security and public safety.78 The threats to these
interests came from increasingly sophisticated foreign espionage and
serious, internal terrorist activities. These were exceptional conditions
which could justify exceptional measures of secret surveillance.79 Yet, it
needs to be emphasised that the concept of national security is limited to
activities which present an imminent threat to the very existence of the
nation. In the same manner, the ECt.HR in Leander v Sweden80 accepted
the need of the state to collect information and maintain secret dossiers
on candidates for employment in sensitive jobs, where there might be
threats to national security.81
It has been suggested that a restriction sought to be justified on
grounds of national security is clearly not legitimate if it is used as a
pretext to protect interests unrelated to national security imperatives.82
Johannesburg Principles provide an illustrative list of interests that
are illegitimate.83 Principle 2(b) states that it is illegitimate to use national
security as a pretext for protecting the government from embarrassment
or exposure of wrongdoing, including diplomatic embarrassment. It has
been observed that this proposition finds support in the ECt.HR ruling
in Observer and Guardian Newspaper v UK,84 which held that an
injunction on the publication of the memories of a retired high-ranking
official of the British Security Service could not be sustained on national
security grounds after publication in the United States. Among the
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dissenting judges, Judge Walsh objected that the government had
presented no evidence at all of the threat of national security that cannot
be invoked to gain a restriction simply by an expression of opinion on
the part of the authorities.85
In the Bluf case,86 the European Commission was disposed to
question the governments claim that it remained necessary to prevent
the publication of information indicating that the security services had
had an interest in the activities of certain political organisations some six
years before. The Commissions report suggests that the claim of
national security will not always be left unquestioned.
One may ask whether restriction on freedoms and rights must be
supported by specific evidence in order to be justifiable. In a series
decision, the HRC has made clear that the governments bear the burden
of proving, with specific evidence, that restriction on freedom of

expression and other rights are necessary to protect state security or
some other legitimate interest.87 In Pietroroia v. Uruguay,88 the
Committee found a violation of Article 19(2) because the applicant had
been arrested, detained and tried for his political and trade union
activities and the prosecutor had not presented specifics evidence of
activities that could legitimately be treated as criminal. The Committee
held that:
Bare information from the State party that [the applicant] was
charged with subversive association and conspiracy to violate the
Constitution, followed by preparatory acts thereto, is not in itself
sufficient, without details of the alleged charges and copies of the
court proceedings.89
Most notably, courts around the world have adopted the
Committees approach.90 Notwithstanding, difficulties arose when the
State refuses, on national security grounds, to reveal information that it
claims justifies restrictions on fundamental rights. In such case the
ECt.HR has held in Murray v. United Kingdom,91 that the state must
furnish at least some facts or information to support the need for the
restrictions and for keeping the evidence secret, even if the information
concerns a serious terrorist threat.
The IACHR elucidated the term public order in its advisory opinion
on Compulsory Membership in an association Prescribed by Law for the
Practice of Journalism. It defined the term public order as reference to
the conditions that assure the normal and harmonious functioning of
institutions based on a coherent system of values and principles.92 The
IACHR concluded that reasons of public order that may be valid to
justify compulsory licensing of other professions cannot be invoked in
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the case of journalists because they would have the effect of permanently
depriving those who are not members of the right to make full use of the
rights that Article 13 grants to each individual.93 Such a situation
would violate basic principles of a democratic public order on which the
Convention itself is based.94 It should be pointed out that the IACHR
has not yet interpreted the notion of national security.
THE PRINCIPLE OF A DEMOCRATIC SOCIETY: THE MARGIN OF

APPRECIATION
The principle in a democratic society appears in a various limitations
clause of the universal and regional human rights instruments.95 The
travaux préparatoires of the UDHR indicate that various views were
expressed on the inclusion of that term in Article 2 of the draft

declaration (Article 29 of the declaration as adopted). It was said that the
concept of democracy had different meanings in different countries.
There was a fear that, unless this concept was clarified, it might lead to
abuses.96 The USSR supported the inclusion of democracy since a
democracy was a State in which all citizens had an equal right to
participate in the activities of the Government, and this principle was
common to all democracies.97
The reference to a democratic society was inserted in only three of
the six limitation clauses of the ICCPR. The term is included in Articles
14(1) (right to a public trial), 21 (freedom of assembly), 22(2) (freedom
of association), as well as in Articles 4 (general limitation clause) and 8(1)
(C) (trade union rights) of the International Covenant on Economic,
Social and Cultural Rights. Although, the travaux préparatoires of Article
14(1) indicate that the inclusion of the words (in a democratic society)
was opposed on the grounds that they were ambiguous and might be
differently interpreted,98 some representatives were convinced of the
usefulness of that term. They felt that those words, which qualified the
notions of public order and national security, afforded a precious
guarantee against the risks of arbitrary treatment.99 The expression was
also interpreted as restricting the margin left to States to appreciate the
different grounds, which may be invoked for limiting recognised rights
and freedoms.100
It might seem questionable whether, in the absence of an express
reference to the principle of a democratic society in the limitation
provisions, that principle can be ignored in the interpretation of such
provisions.101 Anna-Lena Svensson-McCarthy has stated, It would not
appear tenable to ignore the terms a democratic society in interpreting
the limitation provisions of other rights such as the right to freedom of
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expression just because they are not specifically mentioned therein.102
She concluded, the interpretation of the terms of a treaty has to be made
not only in the light of their immediate context, but also by bearing in
mind the wider context of the entire treaty, including the preamble
paragraph.103 In response to Svensson-McCarthys observation, it might
seem preferable to refer to Manfred Nowaks Commentary on Article 19
of the ICCPR.104 He noted that although a reference to a democratic
society was to be included in the limitations provision of Article 19 it was
omitted in the Human Rights Committee in 1950 and 1952. This
decision, stated Nowak, in comparison to Arts. 21 and 22 and in view
of the great significance accorded freedom of expression for the
functioning of democracy, may not seem understandable, it must
nevertheless be taken into account in a systematic interpretation of the
Covenant. He noted, finally, that the criterion for evaluating the

necessity of interference is thus not the principle of democracy but rather
whether it was proportional in the given case.105
One may suggest, in the absence of such a notion in Article 19, it is
noteworthy to refer to the Johannesburg Principles adopted by a group
of experts in international law and human rights,106 where principle 1/3
(C) states that:
To establish that a restriction on freedom of expression or
information is necessary to protect a legitimate national security
interest, a government must demonstrate that: c) the restriction
is compatible with democratic principles.
Hence, these principles should be guidance for governments in
applying the limitations provision laid down in Article 19(3) of the
ICCPR. Keeping into consideration that the United Nations Special
Rapporteur on freedom of opinion and expression has recommended
these Principles to governments.107 Furthermore, the Commission on
Human Rights has endorsed these principles in numerous resolutions on
the right to freedom of opinion and expression.108
In the ECHR, the expression necessary in a democratic society
seems to be one of the most important concepts since it appears in each
limitation clause and therefore qualifies every restriction.109 During the
debates of the travaux préparatoires of the ECHR Pierre Henri Teitgen
explained the limitation provision in the following pertinent terms:
Chaque pays aura compétence pour fixer les modalités dexercice
des libertés garanties; mais les conditions, les limitations, au besoin
les restrictions, quil édictera vis-à-vis de chacune de ces libertés ne
pourront avoir pour but que dassurer le respect des droits et
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libertés dautrui, de satisfaire aux justes exigences de la morale, de

lordre et de la sécurité dans une société démocratique.110
A proposal to include a provision for the protection of democratic
institutions was rejected in a narrow vote during the meeting of the
Conference of Senior officials.111 A provision which had contained an
undertaking of the States parties to respect the fundamental principles
of democracy in all good faith had been removed from the draft of the
Committee of Ministers, despite its adoption unanimously by the
Consultative Assembly.112 This removal in the view of Teitgen was very
shocking since it implied that the future convention would be more
limited than the already strict Statute of the Council of Europe. He
emphasised that freedom cannot be defined in the abstract and that its
practical, positive content depends on the regime under which it is
exercised.113 He continued to explain his opinion in wise and logical

terms. Finally, he concluded that:
Les libertés individuelles, dans nos pays démocratiques sont
protégées par les institutions démocratiques. Par conséquent, sur le
plan de leur garantie aussi, elles sont inséparables de ces
institutions.114
Interestingly, the logic of Teitgens explanations in 1950 is similar to
that of the Inter-American Court of Human Rights almost 40 years later.
It has been observed that the effective protection and guarantee of human
rights are substantively linked to a democratic society with its democratic
institutions.115 The concept of democracy is contained in Article XXVIII of
the American Declaration of the Rights and Duties of Man, whilst in the
American Convention on Human Rights, the terms in a democratic
Society are found in the limitations clause linked to Articles 15 (freedom
of assembly), 16(2) (freedom of association) and 22(3) (freedom of
movement and residence). Like the ICCPR this term does not appear in
the limitation provision of the right to freedom of conscience and religion
(Art. 12), or the right to freedom of thought and of expression (Art. 13).116
In the absence of any express reference to the concept of a
democratic society in the African Charter, one may deduce that even in
the limitations clause where no explicit mention is made of a democratic
framework, the idea of democracy is always underlying, signifying that
every formality, condition, restriction, or penalty imposed in
this sphere must be proportionate to the legitimate aim pursued.117
However, referring to the European Convention, it has been observed:
What is necessary in a democratic society, or what is strictly
required by the exigencies of the situation, are capable of more
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than one interpretation. The first might be interpreted as meaning
what the State considers to be necessary, or what the citizens in a
democratic society would consider or accept as being necessary, or
what is objectively necessary, to attain the end permitted.118
Guidance for an interpretation of this clause may be better clarified
through the various organs of human rights instruments. The Strasbourg
organs case law is rich and voluminous and it has in numerous occasions
concerned the terms necessary in a democratic society. Whether the
measure adopted by the member state is necessary in a democratic
society or proportionate to the end to be achieved, is one of the key
tasks for the Court and the Commission, and one of the most difficult,
is to test the persuasiveness of any [public interest] defence to ensure that
it complies with the genuine interests of democracy and is not merely
political expediency in disguise.119 Scrutinising the limitations provision

found in the ECHR and its Protocols, one may deduce that these
restrictions must be necessary in a democratic society120 for one of the
purposes there prescribed; or these restrictions must be justified by the
public interest.121 The ECt.HR explored the meaning of the term
necessary in the Handyside case, pointing out that the term imposed
less strict justification than other analogous terms used in the
Convention122 but required more than such terms as reasonable or
desirable.123 The European Commission of Human Rights has found
that necessary implies the existence of a pressing social need, and this
need must be assessed in the circumstances of each given case.124
One of the most interesting arguments on the term necessary in a
democratic society was made by the applicant X v United Kingdom,
contesting a restriction on his freedom of expression. The applicant was
found guilty under the Incitement to Disaffection for possessing a
document with intent to commit an offence. The applicant had been
disseminating copies of two documents, Letter from a soldier of the IRA
and Letter from a Ballymurphy Mother, the latter containing an
invitation to soldiers to turn their guns on their officers.125 The decision
reads:
It is true that paragraph 2 of Article 10 qualifies the right to
freedom of expression by permitting restrictions that are
prescribed by law and are necessary in a democratic society, in the
interests of national security The applicant maintains that the
Incitement to Disaffection Act not only is not necessary in a
democratic society, but also that it prohibits speech that is
necessary in a democratic society. If any lesson can be drawn from
the Judgment of the International Military Tribunal at Nuremberg,
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it is that soldiers must not be permitted to be used as mindless

machines. To prevent this they must be permitted to be exposed to
the kind of political propaganda that very well conflict with the
military aims of the government that commands them.126
As Francis Jacobs and Robin White noted in their treatise on The
European Convention on Human Rights, establishing that the measures
necessary in a democratic society require showing that the action taken
is in response to a pressing social need, and that the interference with the
right protected is no greater than is necessary to address that pressing
social need. They remarkably observed, that the latter requirement is
referred to as the test of proportionality.127 It is worth mentioning that
the ECt.HR has used two key notions in elucidating the requirement of
necessity: the notion of margin of appreciation, and the principle of
proportionality. The former doctrine is a legitimate expression of judicial

self-restraint; it serves to trace the dividing line between judicial law
making in Strasbourg and the proper responsibility of the democratic
institutions of the ECHR countries.128 It was in the Handyside case where
ECt.HR first clarified the margin of appreciation doctrine.129 In that case
the ECt.HR held that it is for the national authorities to make the initial
assessment of the reality of the pressing social need implied by the notion
of necessity in this context.130 It has been observed that the ECt.HR in
using the margin of appreciation doctrine applies a kind of model test.131
P. Van Dijk and G.J. Van Hoof observed that, the development of this
model has not provided clarity in all respects as far as the application of
the margin of appreciation is concerned.132 In order to support their
opinion, they referred to the Lingens case133 where the ECt.HR has
added a number of elements, which together with the Silver principles
seem to make up the core of the margin of appreciation.134 Finally, they
conclude that the Strasbourg case law presents a rather erratic picture on
that score, where it is still quite risky to try to foresee whether in a given
case the national authorities will be allowed a narrower or a wider
margin of appreciation.135 In order to rebut such criticism one may refer
to the Handyside case where the ECt.HR elucidated its position by
holding that the margin of appreciation does not mean:
That the Courts supervision is limited to ascertaining whether a
respondent State exercised its discretion reasonably, carefully, and
in good faith. Even a Contracting State so acting remains subject to
the Courts control as regards the compatibility of its conduct with
the engagements it has under the Convention.136
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To conclude, a wide margin might be reduced or contra-indicated
where issues arise on individual rights and freedoms touching on intimate
aspects of private life,137 while a wide margin is to be accorded in matters
of morals, at least where no common European standards exist.
In a number of cases the Human Rights Committee has applied a test
of proportionality in determining whether a particular measure was
necessary. In Toonen v Australia, the Committee determined that
restrictions on the right to privacy were not proportional to the end
sought and, accordingly, not necessary.138 In its General Comment on
freedom of religion, the HRC observed that limitations must be directly
related and proportionate to the specific need on which they are
predicated.139 In most of the cases the HRC reserved to itself the question
whether there were circumstances which made the restriction of rights
necessary. In Hertzberg et al. v Finland140 the HRC has stated that States
parties to the ICCPR have a margin of discretion. The HRC concluded
that it could not question the decision of the national authorities to
impose penalties against a broadcaster for airing a programme about
homosexuality. It has been observed that, since that decision, the HRC
has not applied a margin of discretion and it has expressly rejected the
doctrine more than once, even in cases concerning moral values. In
Toonen v Australia where the right to privacy was alleged to be violated
by laws outlawing homosexual conduct, the HRC rejected the
governments argument that the moral issues must be deemed a matter
for domestic decision.141
The IACHR has elucidated the term necessary in a democratic
society in its advisory opinion on Compulsory Membership.142 According
to the Court, Article 13(2) must be interpreted not only in the light of
Articles 29(c), (d) and 32, but also of the Preamble to the Convention.143
The repeated reference to democratic institutions, representative
democracy, and democratic society in the sequence of Compulsory
Membership, mirrors the IACHRs emphasis that any restrictions on
freedom of expression which were considered necessary to ensure one
of the objectives referred to in Article 13(2) must also be judged by
reference to the legitimate needs of democratic societies and
institutions.144
It has been observed that the criteria enunciated by the IACHR in
Compulsory Membership145 has been adopted by the Inter-American
Commission on Human Rights (IAComm.HR) in a Report on the
Compatibility of Desacato Laws with the American Convention on
Human Rights.146 Desacato laws exists in a number of Latin American
States legislation which criminalizes expression which offends, insults,
or threatens a public functionary in the performance of his or her official
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duties. In order to examine the compatibility of such laws with the

147
American Convention, the IAComm.HR has to test whether these laws

complied with the third and fourth criteria enunciated by the IACHR in
Compulsory Membership.148 In applying the fourth criteria on the present
case, the Commission concluded that Desacato laws are not necessary to
ensure public order in a democratic society.
Finally, referring, to the view of the IACHR in Compulsory
Membership, the IAComm.HR noted that Article 13(2) requires that the
restriction of freedom of expression is necessary and that the IACHR
ruled in its advisory opinion that necessary must mean something more
than useful, reasonable or desirable. For a restriction to be necessary it
must be shown that the legitimate purpose cannot reasonably be
achieved through means less restrictive to freedom of expression. Thus,
the restrictions must be proportionate and closely directed to the

achievement of the governments stated objective. Furthermore, since
necessity implies the existence of a pressing social need governments
may not invoke one of the lawful restrictions of freedom of expression,
such as the maintenance of public order as a means to deny a right
guaranteed by the Conventions or to impair its true content. Such
restriction would, in the Commissions view, be unlawful.149
CONCLUSION
When limitations are permitted to rights, whether in international or
regional human rights instruments, they must generally be prescribed by
law. This means that the circumstances in which the limitation will be
imposed are clearly delineated in an accessible law, whether that be
statute law or common law. The law should not be so vague as to permit
too much discretion and unpredictability in its implementation.
On the basis of the analysis carried out above, the principle of legality
could beneficially be described as having the following minimum
characteristics within the field of human rights: any restrictions on the
exercise of human rights must be laid down in pre-established legal
standards of general application, these standards may in no case be
exercised contrary to the purpose and principles of the United Nations
(which may be found in the Preamble and Arts. 1 and 2 of the UN
Charter). In addition these legal standards must further be made
adequately accessible to the public and be formulated in such a way as to
provide clear guidance of conduct.150
The terms national security, public safety and public order are
not sufficiently precise to be used as a basis for limitation or restriction
of the exercise of certain rights and freedoms. On the contrary they are
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terms with a broad meaning and application. Therefore, they can be used
by certain States to justify unreasonable limitations or restrictions.
However, although several States have invoked the notion national
security as a pretext for imposing limitations on rights and freedoms, the
HRC gave States parties carte blanche to defend allegations of Article 13
breaches with superior claims of national security by holding that: It is
not for the Committee to test a sovereign States evaluation of an aliens
security rating.151 Furthermore, the HRC will not examine the merits of
that claim. Yet, an alternative approach to harmonise the judicial
examination of national security is strictly required. It seems preferable
to refer to the principles suggested by Emerson to be followed by US
courts to assess government claims put foreword on national security
grounds when these conflict with individuals rights under the US Bill of
Rights. These principles read as follows:
1. There should be a presumption in favour of the individual right.

2. Government claims of injury to national security should be viewed
with healthy scepticism.
3. The burden of proof to demonstrate its case should rest on the
government.
4. The government must show a direct, immediate, grave, and specific
harm to national security, not just a vague or speculative threat.
5. The restriction sought by the government must be confined to the
narrowest possible constraint necessary to achieve the goal.
6. Whenever possible the courts should formulate and apply hard and
fast rules rather than loose balancing tests.152
In the universal and regional human rights instruments, the term a

democratic society constitutes a principle which plays the crucial role of
controlling the interpretation and application of these treaties. The drafters
of the ICCPR as well as ECHR and ACHR intended this clause to be a
safeguard for individuals rights against any arbitrary interference by States.
Concerning the margin of appreciation doctrine, it may be noted that
such a doctrine is often applied under the ECHR when no common
practice regarding the specific right at issue can be perceived throughout
the States parties to the ECHR. On the contrary, application of such
doctrine is not recommended under the ICCPR, where a common
practice would rarely be discerned among the very different States
parties to these universal treaties.153
It is not permissible for either the executive or the judiciary directly
and independently to tamper with a particular right or its limitations.
René Marcic has observed:
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The power to declare forfeited a fundamental right can be put in

no better hands than those of an independent judge. The executive,
whose structure is essentially political and which is headed by the
government, is as little suited for this task as is the legislature,
whose function is to create general norms and not specific laws
aimed at individual cases.154
A most important criterion for evaluating the legitimacy and the
legality of a limitation derived from various human rights instruments is
the principle of proportionality: the extent of any limitation should be
strictly proportionate to the need of the higher interest which the
limitation is protecting. A law that is contrary to international law or to
general principles of law, and a constitution that is contrary to
international law, may be legal but not legitimate. The principle of
proportionality has to be respected not only in the law that frames the
restrictions, but also by the administrative and judicial authorities in
applying the law. States should ensure that any proceedings relating to
the exercise or restriction of these rights are expeditious and that reasons
for application of restrictive measures are provided.
In adopting laws providing for restrictions permitted by the provision
of human rights instruments, States should always be guided by the
principle that the restrictions must not impair the essence of the right;
the relation between the right and restriction, between norm and
exception, must not be reserved.
In the absence of an African Court of Human Rights, it is
recommended that there should be a more creative interpretation of the
Charter by the African Commission on Human and Peoples Rights. In
addition, Article 60 of the African Charter directs the African
Commission to draw inspiration from international law on human and
peoples rights, and Article 61 directs it to take into consideration, as
subsidiary measures to determine the principle of law, other general or
special international conventions. According to Article 45(3) of the
ACHPR the African Commission has the task of interpreting the
provisions set forth in the Charter. It may do so at the request of the
Organisation of African Unity (OAU), now The African Union,155 States
parties and NGOs.
To conclude, it is preferable to adopt a General Comment on the
Limitation Clauses by the HRC to elucidate the precise meaning of these
terms as they are employed in the ICCPR.156 Such a precise clarification
could pave the way towards a unified standard for the basic principles
which govern the limitations on individual rights and freedoms in human
rights instruments.
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Finally, as Rudolph Pannwitz remarkably asserts, the ultimate burden
of ensuring the protection of individuals rights and freedoms rests upon
all mankind. Real protection of human rights can only be assured when
the people of the world are concerned about the respect for their own
rights and freedoms. The opportunity for the public authority to violate
in all tranquillity the individuals rights and freedom is in inverse
proportion to the resistance that it meets.157 Pannwitz also said: What is
important is not the article of law, but the guarantor. And the guarantor
of mans freedom is man.158
AC K N O W L E D G E M E N T S
The author would like to thank Dr. Iognáid G. Muircheartaigh the President of NUI,
Galway, and Professor William Schabas the director of the Irish Centre for Human Rights
for offering him a PhD scholarship to improve his academic preparation. This essay does
not reflect the official position of the Egyptian Ministry of Justice, but is the personnel
opinion of the author.
NOTES
1. Erica-Irene A. Daes, A Study on the Individuals Duties to the Community and the
Limitations on Human Rights and Freedoms under Article 29 of the Universal
Declaration of Human Rights, Center for Human Rights, U.N. Human Rights Study
Series (New York: United Nations Publication, 1983), pp.6975.
2. See Article 29(2) of the Universal Declaration of Human Rights, adopted 10 Dec.1948,
G.A. Res. 217A (III), UN Doc. A/810, p.71 (1948), hereinafter referred to as UDHR.
It should be pointed out that the French Declaration of the Rights of Man and Citizen
approved by the National Assembly of France, 26 August 1789 allowed limitation on
the exercise of rights and liberty wherein Article 4 stipulates: Liberty consists in the
freedom to do everything which injures no one else; hence the exercise of the natural
rights of each man has no limits except those which assure to the other members of the
society the enjoyment of the same rights. These limits can only be determined by law.
Most notable that the general limitation provision laid down in Article 29 of the
UDHR was inspired by Article XXVIII of the American Declaration of the Rights and
Duties of Man which read as follows: The rights of man are limited by the right of
others, by the society of all, and by the just demands of the general welfare and the
advancement of democracy. For the text of the Declaration, see Final Act of the Ninth
International Conference of American States, Bogotá, Colombia, 30 March2 May
1948 (Washington, D.C, Pan American Union, 1948), Resolution XXX.
3. International Covenant on Civil and Political Rights (ICCPR), Articles 12(3), 14(1),
18(3), 19(3), 21, 22(2), adopted 16 Dec. 1966, entered into force 23 March 1976,
G.A. Res.2200A (XXI), UN Doc. A/6316 (1966), 999 UNTS 171, reprinted in 6 ILM
368 (1967), 144 state parties, hereinafter referred to as ICCPR; International
Covenant on Economic, Social and Cultural Rights, Article 8(1), (a), and (c), adopted
16 Dec. 1966, entered into force 3 Jan.1976, G.A. Res.2200A (XXI), UN Doc.A/6316
(1966), 993UNTS3, reprinted in 6 ILM 360 (1967), 142 state parties. Hereinafter
referred to as ICESCR.
4. European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR), Articles 8(2), 9(2), 10(2), 11(2), Protocol No.1, Article 1, Protocol No.4
74jhr03.qxd 09/10/2003 09:42 Page 86
Article 2(3), Protocol No.7 Article 1910 (2), signed 4 Nov. 1950,entered into force 3
Sept. 1953, 213 UNTS 221, ETS 5, 41 State parties. American Convention on Human
Rights (ACHR), (Pact of San Jose), signed 22 Nov. 1969,entered into force 18 July
1978,OATS 36,O.A.S Off. Rec.OEA/Ser.L/V/11.23, doc.21, rev.6 (1979), reprinted in
9 ILM 673 (1970), 25 State parties. The Canadian Charter of Rights and Freedoms,
proclaimed and came into force on 17 April 1982.
5. Daes (note 1 ), p.76, para. 81.
6. Alexandre Charles Kiss, Permissible Limitations on Rights, in Louis Heniken (ed.),
The International Bill of Rights: The Covenant on Civil and Political Rights (New York:
Columbia University Press, 1981), pp.2945.
7. Anna-Lena Svensson-McCarthy, The International Law of Human Rights and the States
of Exception (The Hague: Kluwer Law International, 1998), p.52.
8. In its General Comment on Article 12 (freedom of movement), the Human Rights
Committee emphasised that the limitations laid down in paragraph 3 of Article12,
clearly indicates that it is not sufficient that the restrictions serve the permissible
purpose; they must also be necessary to protect them. Restrictive measures must
conform to the principle of proportionality; they must be appropriate to achieve their
protective function; they must be the least intrusive instrument amongst those which
might achieve the desired result; and they must be proportionate to the interest to be
protected (GC 27(12), adopted by the HRC in its 67th session 1999).
9. The European Convention on Human Rights (Art. 8(2), uses the term in accordance
with law; Arts. 9(2), 10(2), and 11(2), use the term prescribed by law). The ICCPR
(Arts. 18(3), and 22(2), uses the term prescribed by law, Art. 19(3), uses the term
provided by law, Art. 21 says in conformity with the law. The ACHR (Art. 12(3),
uses the term prescribed by law, Arts. 13(2), and 16 use the term established by law,
Art. 15 says in conformity with law, Art. 22 says pursuant to law. The ACHPR uses
the following: Art. 8 uses the term subject to law, Art. 9 says within the law, Arts.
10 and 12(1), use the term provided he abides by the law, Arts. 11 and 12(2), use the
term provided for by law.
10. It should however be pointed out that, although the principle of legality is also
contained in several provisions of the African Charter, they are still vague and have
been criticised in various ways. They have been described as: provisions which tend to
take away with the left hand that which it has given with the right hand.
Unfortunately, the clawback of the African Charter will not be dealt with in the present
study, since there is no case law to shed any light on the meaning of this notion. See
Evelyn A. Ankumah, The African Commission on Human and Peoples Rights: Practice
and Procedures (The Hague, London and Boston: Martinus Nijhoff, 1996), pp.13342,
1769.
11. For more details see the Principle of Legality in Practice in the present study.
12. O. Garibaldi, General Limitations on Human Rights: The Principle of Legality,
Harvard International Law Journal, Vol.17 (1976), pp.503, 5567. Garibaldi has
illustrated the requirement of generality as a form of equal protection guarantee. He
speaks of two distinct demands for generality. First, any restriction upon a particular
occasion must be authorised by higher norm of the legal system, which is general with
regard to the occasion. To illustrate the first demand of generality, Garibaldi
hypothesised restrictions on prohibiting publication of newspaper articles criticising
the government. He continued, If the restriction specified that no issue shall ever print
such articles, the restriction is occasion general; whereas, if the restriction only forbade
such articles in the issue of the newspaper dedicated to the countrys centennial, it is
occasion specific. Second, any restrictions upon a particular subject must be authorised
by a higher norm, which is general with regard to the subject. Consequently, a
regulation restricting all newspapers is subject general, whereas a restriction on a
certain newspaper is subject specific.
13. Kiss (note 6), pp.3045.
14. See Article 14(1), of the ICCPR.
74jhr03.qxd 09/10/2003 09:42 Page 87
15. Article 6 of the ECHR, Article 8(5), of the ACHR provides only that criminal
proceedings shall be public, except insofar as may be necessary to protect the interest
of justice.
16. Article 7(1), of the ACHPR states that: Every individual shall have the right to have
his cause heard. The other four subparagraphs make no mention of a public hearing.
17. Daes (note 1), p.74.
18. E/CN.4/SR.106, p.5, USA.
19. E/CN.4/SR.106, p.4 (F).
20. E/CN.4/SR.150, para. 65 (RCH); E/CN.4/SR.151, paras. 32, 67 (F).
21. UN Doc. E/CN.4/SR.119, p.15.
22. UN Doc. E/CN.4/SR.319, p.4.
23. UN Doc. E/CN.4/SR.319, p.14.
24. The Siracusa Principles were adopted in May 1984 by a group of experts convened by
the International Commission of Jurists, the International Association of Penal Law,
the Institute for Human Rights, and the International Institute of Higher Studies in
Criminal Sciences. The Siracusa Principles on the Limitation and Derogation
Provisions in the International Covenant on Civil and Political Rights, U.N. Doc.
E/CN.4/1985/4, Annex, para. 30, reprinted in Human Rights Quarterly, Vol.7 (1985),
p.3.
25. See, Alexandre Kiss, Commentary by the Rapporteur on Limitation Provisions,
Human Rights Quarterly, Vol.7 (1985), p.15.
26. Svensson-McCarthy, note 7 above, p.667.
27. Pinkney v Canada (27/1978), 29/10/1981.
28. Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant on Civil
and Political Rights: Cases, Materials, and Commentary (New York: Oxford University
Press, 2000), pp.3535.
29. Pinkney v Canada (note 27), para. 31.
30. Maroufidou v Sweden (58/1979), 9/4/1981.
31. Ibid., para. 10.1, 10.2.
32. GC 27(12), para. 13, adopted by the HRC in its 67th session 1999.
33. Malone v United Kingdom (1984), Judgment of 2 August 1984, p.32.
34. Sunday Times v United Kingdom (1979), 2 EHRR 245, para. 49.
35. Tolstoy v United Kingdom (1995), 20 EHRR 442, ECHR.
36. Halford v United Kingdom (1997), 24 EHRR 523, regarding office telephone tapping.
37. Malone v United Kingdom (1984), 7 EHRR 14. However, Klass v. Federal Republic of
Germany (1978), 2 EHRR 214, ECHR (German statute governing surveillance was
sufficiently precise, and the procedures for ensuring compliance strict enough to meet
legality requirement of Art.8 (2), of the Convention); Silver v. United Kingdom (1983),
5 EHRR347, E Ct HR (stopping prisoners correspondence on the basis of Standing
Orders and Circular Instructions issued to governors but not accessible to the prisoners
was in accordance with the law).
38. J.G. Merrills, The Development of International Law by the European Court of Human
Rights (Manchester: University Press, 1997), pp.11352.
39. Sunday Times v United Kingdom (note 34).
40. J.G. Merrills (note 38), pp.11720.
41. Ibid.
42. Malone v United Kingdom (1984) (note 37 above).
43. A.R.M Chappell v United Kingdom, Application No.10461/83, para. 96, Report of the
Commission, adopted on 14 October 1987.
44. Ibid., para. 104.
45. Svensson-McCarthy (note 7), p.82.
46. Advisory Opinion OC-6/86 of May 1986, Series A, No.6, p.37, The Word laws in
Article 30 of the American Convention on Human Rights, IACHR.
47. Ibid., p.29, para. 22.
48. Daes (note 1), p.112.
74jhr03.qxd 09/10/2003 09:42 Page 88
49. Paul Sieghart, The International Law of Human Rights (Oxford: Clarendon Press,
1983), p.105.
50. Louis Heniken (ed.), The International Bill of Rights: The Covenant on Civil and
Political Rights (New York: Columbia University Press, 1981), p.26.
51. Bert B. Lockwood, Jr., Jannet Finn and Grace Jubinksy, Working Paper for the
Committee of Experts on the Limitation Provisions, Human Rights Quarterly, Vol.7
(1985), p.35.
52. Marc J. Bossuyt, Guide to the Travaux Preparatoires of the International Covenant on
Civil and Political Rights (Dordrecht and Boston: Martinus Nijhoff, 1987), pp.1057.
53. The original formulation of Article 19 of the ICCPR (freedom of expression), allows
an exception for matters which much remain secret in the interests of national
safety but this was latter replaced with the phrase national security. See Bossuyt
(note 14 above), p.387.
54. Iain Cameron, National Security and the European Convention on Human Rights (The
Hague, London and Boston: Kluwer Law International, 2000), p.42.
55. Principle 30 of the Siracusa Principles asserts that, National security cannot be
invoked as a reason for imposing limitations to prevent merely local or relatively
isolated threats to law and order. See Siracuse Principles (note 24), p.6.
56. Thomas I. Emerson, National Security and Civil Liberties, The Yale Journal of World
Public Order, Vol.9 (1982), p.78.
57. A concept is not the same thing as a term. A term is a word or phrase, whereas a
concept is a meaning-content; it is the thing to which a term, or terms, refers.
58. Iain Cameron (note 54), pp.3051.
59. The general limitation clause in Article 29 of the UDHR does not include national
security. Neither does the general clause in Article 4 of the ICESCR. It is notable that
Article 8(1), of the latter Covenant, providing for the right for everyone to form or join
trade unions to function freely, is subject to limitations on grounds including national
security.
60. National security is a permissible basis for limiting the freedom of movement and free
choice of residence (Article 12(3),); for excluding the press and the public from all or
part of a trial (Article 14(1),); for restricting the freedom of expression (Article 19(3)),
the right of peaceful assembly (Article 21), and the right to freedom of association with
others; and for limiting the right to form and join trade unions (Article 22).
61. Bossuyt (note 52), pp.3657.
62. 10 U.N. GAOR Annexes (Agenda Item 28), at 48, U.N. Doc. A/2929 (1955).
63. Ibid., at 9.
64. Lockwood (note 51), p.701.
65. Kim v Republic of Korea (574/94), 3/11/98.
66. Ibid., para. 10.6.
67. Ibid., para. 12.4.
68. Ibid., para. 12.5.
69. Mukong v Cameron (458/91), 21/7/94.
70. Sohn v Republic of Korea (518/92), 19/7/95.
71. Siracusa Principles (note 24).
72. V.M.R.B. v Canada (236/87), 18/7/88.
73. Ibid., para. 6.3.
74. J.R.C. v Costa Rica (296/88), 30/3/89.
75. Sarah Joseph (note 28), pp.2726.
76. GC 22 (18), adopted by the HRC in its 48th session, 1993.
77. Klass v. Federal Republic of Germany (1978), 2 EHRR 214.
78. Ibid., para. 48.
79. D.J. Harris, M. OBoyle, C. Wabrick, Law of the European Convention on Human
Rights (London and Dublin: Butterworths, 1995), p.3467.
80. Leander v. Sweden (1987), 9 EHRR 433, ECHR.
74jhr03.qxd 09/10/2003 09:42 Page 89
81. It should be pointed out that the circumstances of cases like Klass and Leander are
exceptional. More typically, interferences with private life or a persons home or
correspondence will occur in the course of the enforcement of ordinary criminal law.
In this context search warrants will generally require prior judicial authorisation if
they are to be regarded as proportionate to their purpose by the Strasbourg
authorities.
82. Sandra Coliver, Commentary to: The Johannesburg Principles on National Security,
Freedom of Expression and Access to Information, Human Rights Quarterly, Vol.20
(1998), p.12.
83. The Johannesburg Principles on National Security, Freedom of Expression and Access
to Information, adopted by a group of experts in international law, national security
and human rights convened by Article 19, the international Centre against
Censorship, in collaboration with the Centre for Applied Legal Studies of the
University of the Witwatersand, in Johannesburg (1 October 1995). These Principles
are based on international and regional law and standards relating to the protection
of human rights. This succinct statement includes 25 principles, subdivided among
general principles, restrictions on freedom of expression, freedom of information,
and rule of law and other matters. It should be pointed out that the Commission on
Human Rights acknowledged these Principles. U.N. Doc E/CN.4/1996/39, Annex,

reprinted in Human Rights Quarterly, Vol.20 (1998), p.1.
84. Observer and Guardian Newspaper v United Kingdom, 216 E Ct HR (ser. A), para.
69 (1991).
85. See Vereinigung Demokratischer Soldaten Osterreichs and Berthold Gubi v Austria
(1994), 20 EHRR 56, ECHR.
86. Vereniging Weekblad Bluf v Netherlands A 306-A (1995), Com. Rep. para 47.
87. See, e.g., L. Weinberger Weisz v Uruguay, Communication No.28/1978, UN GAOR,
HRC, reprinted in Selected Decisions of the Human Rights Committee Under the
Optional Protocol, Sess. 216, p.60, para.14.
88. Pietroria v. Uruguay, Report of the Committee, 36 UN GAOR Supp. (No.40), at
1589, UN Doc. A36/40, p.153 (1981).
89. Ibid., para. 15.
90. See, e.g., Josephat v. Republic, High Court of Malawi, Misc. Civil App.No.28 of
1992 (holding that the state must adduce evidence to support claims that the exercise
of a fundamental liberty is prejudicial to national security).
91. Murray v United Kingdom, 300-A E Ct HR (ser. A), paras. 59, 60 (1994).
92. Advisory Opinion No.5, Compulsory Membership in an Association Prescribed by
Law for the Practice of Journalism, OC-5/85, Series A, No.5, at para.64 (Nov. 13,
1985), 7 HRLJ 74.
93. Ibid., para.76.
94. Ibid.
95. Art. 29(2), of the Universal Declaration of Human Rights; Arts. 14(1) (right to a
public trial), 21 (freedom of assembly), 22(2) (freedom of association), of the
International Covenant for Civil and Political Rights; Arts. 4 (general limitation
provision), and 8(1) (C) (trade union rights), of the International Covenant on
Economic, Social and Cultural Rights; Arts. 6(1) (right to a public trial), 8(2) (right
to respect for ones private and family life), 9(2) (freedom of thought, conscience and
religion), 10(2) (freedom of expression), and 11(2) (freedom of association and
assembly), of the European Convention on Human Rights; Art. 2(3) (freedom of
movement), of Protocol No.4 to the Convention; Art. XXVIII (general limitation
provision using the terms the advancement of democracy) of the American
Declaration of the Rights and Duties of Man; Arts. 15 (freedom of assembly), 16(2)
(freedom of association), and 22(3) (freedom of movement and residence), of the
American Convention on Human Rights.
96. UN Doc. E/CN.4/SR.51 p.2.
97. UN Doc. E/CN.4/ SR.51, p.7.
74jhr03.qxd 09/10/2003 09:42 Page 90
98. Bossuyt (note 52), 2845.

99. Ibid., p.2889.
100. Kiss, Commentary on the Limitation Provisions (note 25).
102. Ibid., pp.11213.
103. Ibid.
104. Manfred Nowak, UN Covenant on Civil and Political Rights CCPR Commentary
(Strasburg: Engel, 1993), pp.3512.
105. Ibid. See also Kiss, Permissible Limitations on Rights (note 6), p.490, n.67. Kiss
suggests that the omission of necessary in a democratic from these Articles is not
significant. It may result from the fact that the clauses were drafted at different times,
or that freedom of movement does not implicate the ideology of democracy as does
freedom of peaceful assembly. Freedom of expression and religion may also have
been considered so fundamental that the drafters preferred not to stress that even
democratic societies could limit them.
106. The Johannesburg Principles on National Security, Freedom of Expression and Access
to Information (note 83 above).
107. Sandra Coliver, Paul Hoffman, Joan Fitzpatrick and Stephen Bowen (eds.), Secrecy
and Liberty: National Security, Freedom of Expression and Access to Information

(The Hague: Kluwer Law International, 1998), p.xi.
108. E/CN.4/RES/2000/38, adopted 20/4/2000. See also E/CN.4/RES/1999/36, adopted
26/4/1999. In both resolutions the Commission on Human Rights recalled the
Johannesburg Principles on National Security, Freedom of Expression and Access to
Information adopted by a group of experts meeting in South Africa on 1 October
1995 (E/CN.4/1996/39, annex).
109. See the ECHR and the related provisions.
111. Council of Europe, Collected Edition of the Travaux Preparatoires of the European
Convention on Human Rights, Vol.IV (The Hague and Boston: Martinus Nijhoff,
1975), p.100.
113. Ibid.
114. Ibid., p.125.
115. Ibid., p.126.
116. Although the term in a democratic society appears in the limitation provision of the
right of freedom of movement in the American Convention, it does not appear in the
limitation provision of the same right in the ICCPR.
117. Handyside v United Kingdom (1976), 1 EHRR 737.
118. Lockwood, Working Paper on Limitation Provisions (note 51), pp.5051.
119. Steven Greer, Public Interest and Human Rights in the ECHR, Council of Europe
Document H(95),1 p.8.
120. Art. 8(2), 11(2), and Art. 2 (3), of the Fourth Protocol of the ECHR.
121. Art. 1 of the First Protocol and Art. 2(4), of the Fourth Protocol of the ECHR.
122. The Courts refers to the words absolutely necessary and strictly necessary in Art,
2(2) and Art. 6(1) respectively, and the phrase to the extent strictly required by the
exigencies of the situation in Art. 15.
123. Francis G. Jacobs, The Limitation Clauses of the European Convention on Human
Rights, in Armand de Mestral and Suzanne Birks (eds.), The Limitation of Human
Rights in Comparative Constitutional Law (Les Edition Y von Blais, 1986), pp.2140.
124. Arrowsmith v United Kingdom, 1979Year Book ECHR 446.
125. Lockwood, Working Paper on Limitation Provisions (note 51), pp.545.
126. X v United Kingdom, 3 Eur. Comm. of Human Rights Decisions and Reports,
pp.6364.
127. Francis G. Jacobs and Robin C.A White, The European Convention on Human Rights
(Oxford: Carendon Press, 1996), pp.3069.
74jhr03.qxd 09/10/2003 09:42 Page 91
128. Paul Mahoney, Judicial Activism and Judicial Restraint in the European Court of
Human Rights: Two Sides of the Same Coin, Human Rights Law Journal, Vol.11
(1990), pp.7888.
129. Previous to that case the ECHR had thrice employed the concept in Vagrancy Cases,
Golder Case, Engel and Others, but had not set out in detail the content of such a
concept (margin of appreciation).
130. ECHR, Handyside judgment of 7 December 1976, Series A, No.24, p.22.
131. This model was summarised in the Silver Case, Judgment of 25 March 1983, A.61
(1983), pp.378 in the form of the following set of principles:
a) The adjective necessary is not synonymous with indispensable, neither has it
the flexibility of such expressions as admissible, ordinary, useful, reasonable
or desirable.
b) The Contracting States enjoy a certain but not unlimited margin of appreciation
in the matter of the imposition of restrictions, but it is for the Court to give the
final ruling on whether they are compatible with the Convention.
c) The phrase necessary in a democratic society means that to be compatible with
the Convention the interference must, inter alia, correspond to a pressing social
need and be proportionate to the legitimate aim persued.
d) Those paragraphs of Articles of the Convention which provide for an exception

to a right guaranteed are to be narrowly interpreted.
132. P. Van Dijk and G.J. Van Hoof, Theory and Practice of the European Convention on
Human Rights, 2nd ed. (Netherlands: Kluwer Law and Taxation, 1990), pp.58895.
133. Ibid., p.589.
134. In explaining its supervisory jurisdiction in Lingens Case the ECHR held that it:
cannot confine itself to considering the impugned decisions in isolation; it must
look at them in the light of the case as a whole the Court must determine whether
the interference at issue was proportionate to the legitimate aim pursued and
whether the reason adduced to justify it relevant and sufficient. Judgment of 8 July
1986, A.103 (1986), pp.256.
135. Van Dijk and Van Hoof (note 132), pp.59091.
136. Ibid.
137. Norris v Ireland, 26 October 1988, ECHR, Series A, No.142, para. 46.
138. Toonen v Australia, Communication No.488/1992, views adopted 8 March 1994.
See Pietraroia v Uruguay, Communication No.44/1979, views adopted 27 March
1981, Selected Decisions under the Optional Protocol, Vol.1, p.76.
139. GC 22 (18), adopted by the HRC in its 48th session, 1993.
140. Hertzberg et al. v Finland, Communication No.61/1979, views adopted 2 April 1982.
141. Toonen v Australia (note 138).
142. IACHR, Compulsory Membership in an Association Prescribed by Law for the
Practice of Journalism, Advisory Opinion OC-5/85, Series A, No.5, at para.69 (13
Nov. 1985).
143. The First Paragraph of the Preamble indicates the States parties intention to
consolidate in this hemisphere, within the framework of democratic institutions, a
system of personal liberty and social justice based on respect for the essential rights
of man.
144. Compulsory Membership (note 142), para. 42.
145. The IACHR in Compulsory Membership has enunciated that the requirements, which
are necessary to invoke restrictions legitimately under Article 13(2), are fourfold and
must be met in their entirety. There must be:
1) The existence of previously established grounds for liability,
2) The express and precise definition of these grounds by law,
3) The legitimacy of the ends sought to be achieved,
4) A showing that these grounds of liability are necessary to ensure the
aforementioned ends.
These requirements have been adopted by the Commission.
74jhr03.qxd 09/10/2003 09:42 Page 92
146. IAComm.HR, Report on the Compatibility of Desacato Laws with the American
Convention on Human Rights (Annual Report, 1994), OEA/Ser.L/V/II.88, Doc. 9 rev.
1, 17 Feb. 1995.
147. Ibid.
148. Scott Davidson, The Inter-American Human Rights System (Aldershot: Dartmouth,
1997), pp.31821.
149. Ibid., p.319.
151. V.M.R.B v Canada (note 72). This phrase was repeated verbatim in J.R.C. v Costa
Rica (296/88).
152. Emerson, National Security and Civil Liberties (note 56).
153. Joseph et al., The International Covenant on Civil and Political Rights (note 28),
p.349.
154. René Marcic, Duties and Limitations upon Rights, Journal of International
Commission of Jurists, Vol.59 (1968), p.68.
155. The African Union was officially launched in Durban, South Africa, on 9 July 2002
to replace the Organisation of African Unity. Its structure is based loosely on that of
the European Union. The African Union upholds the sovereign equality and
independence of its 53 member States and aims to promote peace, security and
solidarity on the African content.
156. Both an analytical and a linguistic clarification might be helpful.
157. Marcic (note 154), p.72.
158. Ibid.

1 M E Badar, Basic Principles Governing Limitations On Individual

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This article was downloaded by: [Bangor University]

On: 24 December 2014, At: 10:25

The International Journal of Human

Basic principles governing limitations on

To link to this article: http://dx.doi.org/10.1080/13642980310001726226

PLEASE SCROLL DOWN FOR ARTICLE

Basic Principles Governing Limitations

development of international instruments protecting human rights was the

One of the most important tasks in promoting human progress is to

Mohamed Elewa Badar, Ministry of Justice, Egypt

The limitation provisions are found in several articles of the

Any restrictions on the rights or freedoms provided for in universal

guarantees the freedom of movement provided the individual abides by

the right to freedom of movement, whether the expression by law

The Principle of Legality in Practice

the relation between right and restriction, between norm and

the Convention because it was not prescribed by law.

the plaintiffs application. This ex parte nature of the Order is an

the word law in an advisory opinion requested by the government of

third party settlement, then the horizontal auto-interpretative nature of

national security and public safety together, in certain articles, but

correspondence); Art. 10(2) (freedom of expression); Art. 11(2)

The Notion of National Security in Practice

Committee considers, therefore, that the State party has failed to

seems to render such evaluations non-justiciable under the ICCPR. In

The European Convention in Article 8(2) permits restrictions on the

of proving, with specific evidence, that restriction on freedom of

THE PRINCIPLE OF A DEMOCRATIC SOCIETY: THE MARGIN OF

expressed on the inclusion of that term in Article 2 of the draft

Covenant. He noted, finally, that the criterion for evaluating the

libertés dautrui, de satisfaire aux justes exigences de la morale, de

exercised.113 He continued to explain his opinion in wise and logical

political expediency in disguise.119 Scrutinising the limitations provision

it is that soldiers must not be permitted to be used as mindless

proportionality. The former doctrine is a legitimate expression of judicial

duties. In order to examine the compatibility of such laws with the

American Convention, the IAComm.HR has to test whether these laws

the restrictions must be proportionate and closely directed to the

Rights. These principles read as follows:

1. There should be a presumption in favour of the individual right.

In the universal and regional human rights instruments, the term a

The power to declare forfeited a fundamental right can be put in

Human Rights acknowledged these Principles. U.N. Doc E/CN.4/1996/39, Annex,

98. Bossuyt (note 52), 2845.

and Liberty: National Security, Freedom of Expression and Access to Information

d) Those paragraphs of Articles of the Convention which provide for an exception

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guarantees the freedom of movement provided the individual abides by

the right to freedom of movement, whether the expression by law

the Convention because it was not prescribed by law.

the plaintiffs application. This ex parte nature of the Order is an

the word law in an advisory opinion requested by the government of

third party settlement, then the horizontal auto-interpretative nature of

The Notion of National Security in Practice

Committee considers, therefore, that the State party has failed to

THE PRINCIPLE OF A DEMOCRATIC SOCIETY: THE MARGIN OF

Covenant. He noted, finally, that the criterion for evaluating the

libertés dautrui, de satisfaire aux justes exigences de la morale, de

exercised.113 He continued to explain his opinion in wise and logical

political expediency in disguise.119 Scrutinising the limitations provision

duties. In order to examine the compatibility of such laws with the

In the universal and regional human rights instruments, the term a

98. Bossuyt (note 52), 2845.