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HUMR5120 Substantive Rights: Reservations, Limitations
HUMR5120 Substantive Rights: Reservations, Limitations
Substantive Rights
Reservations, Limitations
• A balance of interests
– Society v. individual
• Universality of human rights?
– Which universality?
• International law:
• Article 19 of the Vienna Convention on the Law of
Treaties (VCLT)
• ICCPR – no provision
– Therefore – Art. 19 © VCLT ”object and purpose of the treaty”
• Art. 2 Second Optional Protocol
– Death penalty in time of war
• Art. 57 ECHR
1. Only if law in force is not in conformity with the ECHR
2. Only if not of a general character
and
1. Only if a short description of the law is provided
2. Only if it is made at time of signature or depositing the
ratification
• Art. 19 © VCLT
– Only if not contrary to the object and purpose of the treaty
• Art. 4 ICESCR
• “.., the State may subject such rights only to such
limitations as are determined by law only in so far as
this may be compatible with the nature of these
rights and solely for the purpose of promoting the
general welfare in a democratic society.”
• Criteria:
• Exceptional circumstances
• Non-derogable rights
• Strictly required – proportionality
• Temporary
• Procedure – international and domestic
• Applicable law during emergencies: Humanitarian
law and international criminal law and parts of
international human rights law
• Art. 4 ICCPR
• Art. 2.1 Second Optional protocol
– reservation for war time
• Art. 15 ECHR
• Art. 3 ECHR Protocol 6
1. When?
2. How?
3. For how long?
4. Lawful or not?
• 3.a Temporary
• Brannigan and McBride, p. 52
• The validity of the derogation cannot be called into
question for the sole reason that the Government
had decided to examine whether in the future a way
could be found of ensuring greater conformity with
the Convention obligations. Indeed, such a process
of continued reflection is not only in keeping with
Article 15 para. 3 which requires permanent review
of the need for emergency measures but is also
implicit in the very notion of proportionality.