6. Limitations The public international law framework LIMITATIONS. Chapter 6. Outline 6. Limitations... 1

Size: px
Start display at page:

Download "6. Limitations The public international law framework LIMITATIONS. Chapter 6. Outline 6. Limitations... 1"

Transcription

1 LIMITATIONS Chapter 6 Outline 6. Limitations The public international law framework The scope of the rights Interference and limitations State of emergency Enemies of human rights Limitations 6.1. The public international law framework International human rights and states are inseparable. The conventions could not be drafted without state contributions (and consequently nor the legal framework associated), and without state accession to the conventions, they would never come into force. Generally, the purpose of a convention is stated in the preamble. The preamble itself is not constituting legally binding norms, but might play an important role in the interpretation of the rights and freedoms in the operational articles of the convention. Sometimes the preamble can give support to other conventions, by referring to the convention or to ideas, such as the rule of law or discrimination. The conventions also contain material rights (such as freedom of religion) and procedural rights (for instance the creation of monitoring bodies). The conventions are often concluded with technical clauses that detail when it will come into force as well as how changes (and maybe withdrawal) to the convention can be made. Only states (or groups of states) can be parties to conventions individuals, companies, and NGOs cannot. Human rights are different from public international law, because it confers rights to individuals and groups. Additionally, the conventions only apply to contracting states. Accession to a convention normally follows two steps first a signature, which is then followed by ratification. It is typically a representative of the government that signs a convention, and the parliament that ratifies it. The first step is comparable to an engagement and the second step is comparable to a wedding. This means that by signing a convention, a state has given its intention to become state party, but it is not until they have ratified it that the provisions and subsequent obligations are legally binding. The conventions are the result of long-standing negotiations. A convention is seldom drafted in a manner that corresponds exactly to the wishes of individual states. Some 1

2 states will consider the rights as too limiting, while others may deem them as excessive. Those countries that are of the latter opinion may choose not to accede to the conventions, and are thus not bound by it. Another option, however, for reluctant states is to accede the convention with reservations. Examples of reservations include curtailment, non-application of certain rights, and territorial restrictions of the applicability of the rights. The states are free to revoke their reservations. However, the opposite is not possible. So, a state cannot choose to add a reservation to a provision it does not like after it has already acceded to the convention. To get around this, a state could leave the convention and then re-accede with reservations. However, it is not apparent whether this circumvention would be possible in legal terms. Additionally, states may not reserve themselves against all types of provisions. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment is an example. According to its Article 21, no reservation may be made in respect of the provisions of this convention. One advantage of reservations is that it allows for more states to accede. Many believe that it is preferable for states to be reluctant parties, instead of having no dialogue at all. Moreover, these states may, over time, choose to revoke their reservations and become full members. The disadvantage of this approach, however, is that it gives an appearance that does not correspond to reality, meaning that the human rights protection and/or politics and priorities in a given country seems satisfactory, while in reality it is not. These countries are free riders in the club of human rights, and consequently the degree of protection afforded by human rights varies greatly from country to country. Importantly, the rights tabulated in the conventions are minimum standards. States are free to enhance the protection of individuals by, for instance, offering economic support to political parties or creating greater protection of freedom of religion than is required by the conventions. In this respect, the Article 41 of the UN Convention on the Rights of the Child explicitly points out that states can undertake more appropriate legislative measures than the ones established in the convention in order to implement the rights of a child. However, this is only possible as long as the increased protection of one right does not occur at the expense of another. Public authorities are not allowed to give free rein to the freedom of expression if, as a consequence, other individuals would become subject to threats and racial harassment The scope of the rights Human rights may seem easy to understand. Most people know the meaning of freedom of expression and torture. However, these concepts have to be more precisely defined when used in a legal context. In order to ensure a common interpretation of a convention, the expressions have to be standardized. An example is questions related to the provision on the right to life. Does this provision make the death penalty inapplicable? Are the 2

3 authorities required to prohibit tobacco? Is there a general requirement to investigate and adjudicate murder? The Vienna Convention on the Law of Treaties establishes some rules on the interpretation of public international law documents. Some guidelines are also to be found in Article 38 of the statutes of the International Court of Justice in The Hague. According to these documents, the wording of the conventions should constitute the basis for interpretation, and should be construed in light of the purpose of the convention. Additionally, the text must be interpreted in its context, so that the convention is seen as a unit. In a few situations, the travaux préparatoires (documents produced in the making of the convention) are also of relevance. The pre-eminence accorded to individuals distinguishes human rights from public international law, and is also the reason why a particular method of interpretation has been established. The monitoring bodies, especially the European Court of Human Rights, have expressed that the convention is a living document. The court interprets the convention dynamically and on the basis that the rights should be relevant for today s society. The concepts of the conventions are autonomous, meaning that the Court is not bound by individual states interpretations or by similar words or phrases in domestic law, or other international documents. Another difference is that customary law is less relevant to human rights cases than the general norm in public international law. The monitoring bodies have developed a rich body of case law. Sometimes decisions are legally binding judgments, while in some instances they serve more as legal opinions on the interpretation of the convention. These documents are of importance when the exact content of the rights needs to be determined. The monitoring bodies often base their current decisions from earlier ones. In addition, they pay attention to the practice of other legal bodies, be it national or international. Thus, the conventions are continually developed and modified not to conflict with current challenges and events Interference and limitations Human rights can be a contradiction: on the one hand, they confer comprehensive rights and freedoms to individuals, while at the same time the authorities have wide discretion in imposing limits for the enjoyment of these rights. This contrast is particularly visible for many civil and political rights, including provisions on respect for private life, freedom of religion, expression, and assembly. The clauses establishing limits on these rights are often referred to as claw-back clauses. The intervention of the authorities is usually pursuant to a particular pattern. Article 9 of the European Human Rights Convention may serve as an example, as it states that Freedom to manifest one s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the 3

4 rights and freedoms of others. There are thus three requirements for imposing limitations: 1) the interference must be according to law; 2) it must be in pursuit of a legitimate aim under the provision; and 3) be necessary in a democratic society. In many cases, even fundamental human rights in the constitutions of various countries are also subject to clear rules and constraints that follow or at least should follow international standards. The legal foundation is seldom an issue for the authorities, including regarding unwritten law (like customary law or case law), as well as written law (laws and regulations). Laws are required to be clear, precise, and accessible. Discretionary and vague laws are accepted as long as they are not too imprecise. The main point is that the law shall be foreseeable and that individuals shall be governed by law. The legitimate aim (purposes of the limitation) vary greatly and they cover a broad spectrum. Most measures can be described in a way that conveys one or more of the listed purposes. The third requirement, that intervention has to be necessary in a democratic society, is more complicated. In many cases, the conclusion depends on the interpretation of this requirement. The international monitoring bodies do not have the means to fully monitor national authorities on these issues and consequently they enjoy a certain degree of discretion. Public authorities usually know their countries better than the international monitoring bodies, and the latter are never intended to operate as a fourth instance court. However, monitoring bodies still have the right to re-examine a situation where discretion has been exercised, in order to verify that it has been exercised in good faith. For example, for an interference to be necessary in a democratic society, it must be based on pressing social needs, but it is also important to keep in mind that there is no requirement that the interference be indispensable. What is usually decisive is whether states have sufficiently justified their arguments for such an interference. However, state authorities may not interfere with all types of rights. Some rights, like the prohibition of torture, are absolute (i.e. Article 4 (2) of the International Covenant on Civil and Political Rights). Other rights are not regulated by limitation clauses, such as the provisions of the International Covenant on Economic, Social and Cultural Rights. The main reason for this difference is that the implementation requirements for these rights are not so rigid State of emergency Human rights regulate the relationship between individuals and state authorities. The rights conferred to individuals are necessary for the protection of their dignity and development, but also function as a safeguard for democracy and the rule of law. These principles are thus challenged when the fabric of society is torn apart, for instance because of armed conflict. 4

5 If society is threatened, the government is allowed to restrict the rights of the individuals. Some limitations are a consequence of the reservations states make when they accede to a convention. More important are the limitations allowed by the claw-back clauses described above, since, every limitation must be justified if it is made on the basis of this clause. A third possibility of limiting the scope of rights is derogation, which is enshrined in many conventions including Article 15 of the European Human Rights Convention. Derogation grants the government broad discretion to restrict human rights. The authorities may, for instance, put limits on the freedom of movement, enforce censorship, dissolve assemblies, or forbid popular meetings. Similar provisions are often found in national constitutions. These restrictions can be carried out on a general level, for instance, by means of special acts. It is not possible to derogate from all types of rights for example, it is not possible to restrict the right to life or curtail the prohibition of torture. According to the European Convention, derogations are only valid to the extent strictly required by the exigencies of the situation. Thus, the political survival of an existing regime or a President does not justify derogation. It is easy to assume that derogations constitute an escape for political regimes under pressure, and that some regimes abuse this right in order to suppress political opposition. While many states have been reluctant to use derogation, this changed after the terrorist attacks against the United States on September 11, The United Kingdom, for instance, derogated from the provisions on the right to a fair trial Enemies of human rights It seems paradoxical that human rights often protect those who deserve it the least. Racists who harass immigrants or sectarian leaders who abuse weaker groups will often invoke human rights. Powerful media corporations also use freedom of expression to make huge profits. Sometimes it seems as though political opposition, reactionary religious groups, and dissenters on moral issues are those who derive the greatest benefit from the protection these rights provide. However, it is important to note that human rights do not necessarily confer unconditional protection, and enemies of human rights cannot always expect to be protected. ICCPR Article 5(1) states the following: Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant. This clause has an unclear legal status and scope, and has been criticized for being too vague to be practically applicable. A further objection is that it empowers the state to 5

6 restrict individual rights at will. The scope of this authority far exceeds the possibilities under the derogation clause described above. While the abuse clause is seldom employed, it may be easier to invoke today than it was a some of years ago, both because of the terrorist attacks in countries all over the world and the growth of extremist groups in countries like Syria and Iraq, and as a consequence of a more visible conflict between religions, cultures, and sets of values on the international level. That being said, it is important to take into account that the human rights regime was built on the ashes of the Second World War and has since proven to be relevant and dynamic in a changing world. 6