International Human Rights

Lesson 4: Implementing Human Rights

Session 4.3 – Derogations and Limitations

Further to considering treaty methods of enforcement for human rights, it is worth considering that the treaties do not provide for an absolute application of human rights. In many instances, states are justified in withholding human rights pursuant to the treaty. There might be a specific reason why human rights should not be implemented, such as a natural disaster that mandates a freeze on travel or suspending communications. In this session, we shall consider possibilities for limiting human rights as provided for in the treaties. As an initial step, it is important to distinguish between derogations and limitations. Derogations, as provide for example in Article 4 of the ICCPR, are of a wider magnitude, generally allowing the state to derogate from human rights because of a specific occurrence, such as a public emergency. Internal disturbances, war, natural disasters are examples of such emergencies whereby a state may suspend human rights for a limited duration because normal measures are inadequate to address the concerns of the state. The derogation is to be only to the extent necessary to address the situation, cannot be instituted in a discriminatory manner such as against a specific minority group, and requires some form of official proclamation that an emergency exists. Note that some rights are non-derogable, as listed for example in Article 4(2) of the ICCPR, meaning that the state may not suspend such rights even during an emergency. Thus, under the ICCPR, the freedom of religion for example cannot be suspended during an emergency. By contrast, limitations are more specific oriented, usually linked to a specific article. Limitations can always apply and are meant to clarify the scope of the right without removing the application of the right in any absolute manner. The typical limitations provided for in the treaties are national security issues, public safety and order, public health, and public morals. National security means that because of the necessity for peace and order in the state, and because a situation might affect the entire nation as a whole, certain right may be limited. Unlike a derogation involving an emergency that presumably will pass over a given period, the concerns of national security mandate an ongoing form of limitation – like disallowing the police force to engage in a strike action. Public safety and order relate to preventing crime and disorder, like providing for roadblocks or consumer protections. Similarly, public health mandates a state to limit a human right in the interest of the health of the nation, like engaging in inspections of food plants to ensure compliance with safety standards. Public morals are a rather open-ended form of limitation but it is referring to the collective behavior of citizens. Limitations are tied to a standard of being provided by law and necessary in a democratic society. The former means that there is a specific purpose in having the limitation the right, while the necessity factor relates to proportionate means that serve the desired ends of the limitation. That is, a state does not have carte blanche to impose limitations, but must be clear as to its goals in having the limitation and what is the underlying purpose. The idea is to prevent any heavy-handed actions by the state in the name of limitations at the expense of human rights.

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