HUMR5120
Substantive Rights
Reservations, Limitations
Maria Lundberg, NCHR, 13 November 2008
Reservations, Limitations and
Derogations
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Eide, pp 407-421
Ovey, pp 218-240, 432-438, 439-450, 451-458
Cases for reading:
McCann and Others v. The United Kingdom
Refah Partisi v. Turkey
Consult the Greek case, 1969
Added Belilos v. Switzerland
Maria Lundberg, NCHR, 13 November 2008
Reservations, Limitations and
Derogations
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In accordance with international human rights law
there are essentially three ways in which the
State may limit or restrict the scope of its
obligations:
Reservations to treaties
Express limitations to rights
Derogations from rights
Maria Lundberg, NCHR, 13 November 2008
Reservations, Limitations and
Derogations
• A balance of interests
– Society v. individual
• Universality of human rights?
– Which universality?
Maria Lundberg, NCHR, 13 November 2008
Reservations (1)
• 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
Maria Lundberg, NCHR, 13 November 2008
Article 19 VCLT –
Formulation of reservations
• A State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation unless:
– (a) the reservation is prohibited by the treaty;
– (b) the treaty provides that only specified reservations, which do
not include the reservation in question, may be made; or
– (c) in cases not failing under subparagraphs (a) and (b), the
reservation is incompatible with the object and purpose of the
treaty.
Maria Lundberg, NCHR, 13 November 2008
Reservations (2)
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Art. 57 ECHR
1.
2.
and
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2.
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Only if law in force is not in conformity with the ECHR
Only if not of a general character
Only if a short description of the law is provided
Only if it is made at time of signature or depositing the
ratification
Art. 19 © VCLT
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Only if not contrary to the object and purpose of the treaty
Maria Lundberg, NCHR, 13 November 2008
Supervision of validity/compatibility
• The ECHR has competence:
– That the Court has jurisdiction is apparent from Articles 45 and 49
(art. 45, art. 49) of the Convention, which were cited by the
Government, and from Article 19 (art. 19) and the Court’s case-law
(see, as the most recent authority, the Ettl and Others judgment of
23 April 1987, Series A no. 117, p. 19, § 42). (See Belilos v.
Switzerland (Appl. 10328/83), Judgment of 29 April 1988, para. 50)
• Human Rights Committee – competent (CCPR General
Comment 24, para. 18)
• Cf. Art. 20.4 VCLT
Maria Lundberg, NCHR, 13 November 2008
Criteria under Art. 57 ECHR
• A reservation may not be ”general” (see Belilos v. Switzerland,
p. 26, para.55):
• “By “reservation of a general character” ... is meant in particular
a reservation couched in terms that are too vague or broad for it
to be possible to determine their exact meaning and scope. ...
Article 64§1 requires precision and clarity.”
• A short description of the law is required it contributes to “legal
certainty”
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T he “brief statement of the law concerned” both constitutes
an evidential factor and contributes to legal certainty. The
purpose of Article 64 § 2 is to provide a guarantee ... that a
reservation does not go beyond the provisions expressly
excluded by the State concerned.( Belilos, para. 59)
– Cf. Chorherr v. Austria (Application no. 13308/87), Judgment 23 August
1993, Ser. A., No. 266-B
Maria Lundberg, NCHR, 13 November 2008
Criteria under ECHR
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Excluded:: Article 15-18 ECHR and Supervisory mechanisms
See Loizidou v. Turkey (15318/89), Judgment 23 March 1989, para
75
If, as contended by the respondent Government, substantive or
territorial restrictions were permissible under these provisions,
Contracting Parties would be free to subscribe to separate regimes
of enforcement of Convention obligations depending on the scope
of their acceptances. Such a system, which would enable States to
qualify their consent under the optional clauses, would not only
seriously weaken the role of the Commission and Court in the
discharge of their functions but would also diminish the effectiveness
of the Convention as a constitutional instrument of European
public order (ordre public). Moreover, where the Convention permits
States to limit their acceptance under Article 25 (art. 25), there is an
express stipulation to this effect (see, in this regard, Article 6 para. 2 of
Protocol No. 4 and Article 7 para. 2 of Protocol No. 7) (P4-6-2, P7-72).
Maria Lundberg, NCHR, 13 November 2008
Criteria under ECHR
– Loizidou v. Turkey (15318/89), Judgment 23 March 1989, para 75
cont.
• In the Court’s view, having regard to the object and
purpose of the Convention system as set out above,
the consequences for the enforcement of the
Convention and the achievement of its aims would
be so far-reaching that a power to this effect should
have been expressly provided for. However no such
provision exists in either Article 25 or Article 46 (art.
25, art. 46).
• The present amended ECHR: Art. 32 ECHR –
mandatory jurisdiction
Maria Lundberg, NCHR, 13 November 2008
Criteria for incompatibility with the
ICCPR
• Art. 19.(c) VCLT
• The reservation is incompatible with the object and
purpose of the treaty.
• Offending peremptory norms (customary)
– Ex: torture; thought, conscience and religion; denial of minority
rights to culture, language or religion… self-determination
• However, not necessary non-derogable
• No reservation to Art. 2.3 or 40 ICCPR
• Not widely formulated reservations which essentially render
ineffective all Covenant rights
• (CCPR General Comment 24, paras. 8-12)
Maria Lundberg, NCHR, 13 November 2008
Reservations separated from the rest
of the treaty
• Loizidou v. Turkey (15318/89), Judgment 23 March
1989, para. 97.
• Even considering the texts of the Article 25 and 46
(art. 25, art. 46) declarations taken together, it
considers that the impugned restrictions can be
separated from the remainder of the text leaving
intact the acceptance of the optional clauses.
• CCPR General Comment 24, para. 20
Maria Lundberg, NCHR, 13 November 2008
Limitations
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Balance of legitimate interests
No time limitations
Strict interpretation
Must be necessary in a democratic society – “margin
of appreciation”
• Proportionality
Maria Lundberg, NCHR, 13 November 2008
Limitations are permissible
ECHR
ICCPR
Art. 8
Art. 17, 23
Art. 9
Art. 18
Art. 4.2 ICCPR Freedom of
religion or
belief
Art. 10
Art. 19, 20
Art. 4, 4.a)
Freedom of
expression
Art. 11
Ar. 21, 22
Art. 8.1a,c; 8.2
ICESCR
Freedom of
assembly and
Maria Lundberg, NCHR, 13 November 2008
Other prov. of
relevance
Rights and
freedoms
Private and
family life
Limitations are permissible
Art. 2 Protocol
4
Art. 12
Freedom of
movement/resi
dence
Art. 1.2
Protocol 7
Art. 13
Expulsion of
aliens
Art. 16
Art. 1 Protocol
1
Maria Lundberg, NCHR, 13 November 2008
Cf. Art. 25
ICCPR
Political activity
of aliens
Right to
property
Limitations are permissible
• 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.”
Maria Lundberg, NCHR, 13 November 2008
Strict interpretation
• “It follows from the nature of paragraph 2 of article 10 as an
exception clause that this provision must, according to a
universally accepted rule, be strictly interpreted. This is
especially true in the context of the Convention the object and
purpose of which is to safeguard fundamental human rights.
Strict interpretation means that no other criteria than those
mentioned in the exception clause itself may be at the basis of
any restrictions, and these criteria, in turn, must be understood
in such a way that the language is not extended beyond its
ordinary meaning (cf. paragraph 44 of the Court’s judgment of
21 February 1975 in the Golder case ...)”
Maria Lundberg, NCHR, 13 November 2008
Strict interpretation
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“In the case of exception clauses such as … the
principle of strict interpretation meets certain
difficulties because of the broad meaning of the
clause itself. It nevertheless imposes a number of
clearly defined obligations on the authorities of the
High Contracting Parties …” (Sunday Times case,
Report of the Commission, B. 28, paras. 194-195)
1. Proportionality of interference in relation to a
legitimate aim
2. Only a minimum interference to secure the aim
Maria Lundberg, NCHR, 13 November 2008
Permissible limitations
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Criteria:
1. Lawful: “in accordance with the law” or “prescribed
by law”
2. Legitimate: aims listed in the provisions
3. “Necessary in a democratic society”
Maria Lundberg, NCHR, 13 November 2008
Lawful:
• “in accordance with the law” or “prescribed by law”
• What s considered to be “law” ?
• “common law” and administrative regulations and
international treaties. (See The Sunday Times, Judgment of 26
April 1979, A.30, p. 30; Barthold, Judgment of 25 March 1985, A. 90,
p. 21-22, Slivenko v. Latvia, (App. 48321/99), Judgment 9 October
2003 (Grand Chamber))
• “clear, accessible, precise and foreseeable” without
being “excessive rigidity” (The Sunday Times, Judgment of 26
April 1979, A.30, para. 49)
Maria Lundberg, NCHR, 13 November 2008
Legitimate aims as listed in the
provisions
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“national security”
“public safety”
“public order”
“prevention of crimes”
“morals”
“health”
“the reputation of others”
“the protection of the rights of others”
“the economic welfare of the country”
“the prevention of disclosure of information received in
confidence”
• “the guaranteeing of the impartiality of the judiciary”
• “the prevention of disorder and crime”
Maria Lundberg, NCHR, 13 November 2008
Necessary in a democratic society
• “not synonymous with “indispensable” … neither has it the
flexibility of such expressions as “admissible”, “ordinary”,
“useful”, “reasonable”, or “desirable”.
• a “pressing social need”, acc. to the ECHR
– proportionality is required in relation to the stated aim
• The ECHR refers to the State’s “margin of appreciation”
– to a larger or lesser extent depending on the nature of the rights or on the
balancing of the competing claims. See Ovey and White, pp. 232-239.
• See Handyside v. the UK, Judgment of 7 December 1976, A.
24, paras.48-49; Silver, Judgment of 25 March 1983, A. 61,
paras. 26, 48, 97-98.
Maria Lundberg, NCHR, 13 November 2008
Derogations
• A derogation measures are only allowed in
exceptional circumstances and should be of
temporary nature.
• Only in “difficult situations” when the “life of the
nation” is at stake.
Maria Lundberg, NCHR, 13 November 2008
Derogations
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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
Maria Lundberg, NCHR, 13 November 2008
Derogations – some treaties
• Art. 4 ICCPR
• Art. 2.1 Second Optional protocol
– reservation for war time
• Art. 15 ECHR
• Art. 3 ECHR Protocol 6
Maria Lundberg, NCHR, 13 November 2008
Four questions
1.
2.
3.
4.
When?
How?
For how long?
Lawful or not?
Maria Lundberg, NCHR, 13 November 2008
1. WHEN?
1.
2.
War and state of emergency
Threat to the existence of the State
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Lawless case (ECHR):
“an exceptional situation or crisis of emergency which affects the whole population
and constitutes a threat to organised life in the community of which the State is
composed”
(See Commissionen REPORT, 19 Dec 1959, B.1 (1961), p.. 82, and, Judgment of 1 July
1961, P. 56)
In Greece v. the UK the Commission and the Court developed the criteria for scrutiny:
It must be actual or imminent.
Its effects must involve the whole nation.
The continuance of organised life in the community must be threatened
The crisis or danger must be exceptional, in that the normal measures or
restrictions, permitted by the Convention for the maintenance of pubic safety, health
and order, are plainly inadequate.
(See report of the Commission, 5 November 1969, YB XII (1969), p. 72 and pp.. 76, 100
(also pp. 45-71)
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Maria Lundberg, NCHR, 13 November 2008
2. HOW?
• 2.1 Non-derogable rights:
 Derogations may neither be contrary to other
obligations under international law nor to the rights
which are listed as “non-derogable” under Art 15 of
the ECHR or Article 4 of the ICCPR. (for nonderogable under international law, see Human
Rights Commttee Gen. Comment 29, on states of
emergency)
Maria Lundberg, NCHR, 13 November 2008
2. HOW?
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2.1 Non-derogable rights CONT.:
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A number of rights are non-derogable according to Art. 4
ICCPR and Art. 15 ECHR
Art. 15 ECHR:
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Art.2 (life), Art. 3 (torture), Art. 4.1 (slavery), art.7 (no punishment without
law)
No exceptions to Art. 3 and Art.4.1.
Qualified in relation to life,”lawful acts of war”, see also Protocol 6, Arts. 2
and 3
NB. The content of Art. 6 ICCPR and Art. 2 ECHR should be compared
Non-derogable rights in Art. 4 ICCPR also include:
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Art 11 (prison upon non-fulfilment of contractual obligation) and
Art 18 (thought, concience and religion)
Maria Lundberg, NCHR, 13 November 2008
2. HOW?
• 2.b. Non-discrimination:
– Art. 4.1 “on the grounds of race, colour, sex, language, religion and social
origin”.
– However, art 14 ECHR is an integral part of all rights (Ireland v. the UK, s.
86-88, para.228-232 )
• 2.c Derogations may not contradict other human rights
obligations, whether contained in national or international law,
see Art. 53 ECHR
• Take note of the obligations under ICESCR, international
humanitarian law and international criminal law . See Eide, pp.
407-421
• States which are bound by both the ECHR and the ICCPR
Brannigan och McBride, Judgment of 26 May 1993, A. 258-B,
s.56-57; Lawless, P. 60, Ireland v. the UK, P.84
Maria Lundberg, NCHR, 13 November 2008
2. HOW?
• 2.d. Necessary in a democratic society
• In relation to the “margin of appreciation”
– Ireland v. the UK, Judgment of 18 January 1978, A. 25, p. 78-79, 81-82,
92-93; Lawless, Merits, Judgment of 1 July 1961, A. 3, p. 55-56.)
– See also Brannigan och McBride, Judgment of 26 May 1993, A. 258-B, p.
29, 33, 40-42 for critique of the wide margin of appreciation
• Art. 15 ECHR: Measures should be “strictly required” in relation
to the situation,
– Lawless, Judgment, s. 58, para. 36, Ireland v. the UK, Judgment, s. 8081, para. 212, Brannigan and McBride, s.53-54, para. 56-60..
• 2.e. Proportionality
• “the rule of law”,
– Lawless, s.58, para.36; Ireland v. the UK, p. 81, para. 212; Brannigan v.
McBride, p. 53-54, para. 56-59.
Maria Lundberg, NCHR, 13 November 2008
3. FOR HOW LONG?
• 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.
Maria Lundberg, NCHR, 13 November 2008
4. LAWFUL or NOT?
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4.a Requirements in Article 4 of ICCPR and Article 15 of the ECHR
And in the domestic legal order
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4.b A balance between State discretion and the supervisory organs’
competence
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Brannigan och McBride, Judgment of 26 May 1993, A. 258-B, s.56-57; Lawless, p.
60, Ireland v. the UK, p.84
The requirements for a permissible derogation under ECHR and the ICCPR are tested
by the Court or the Committee despite the recognized margin of appreciation of states
to determine their situation and which necessary measures to adopt.
See Ireland v. the UK, Judgment of 18 January 1978, A. 25, p. 78-79, 81-82, 92-93;
Lawless, Merits, Judgment of 1 July 1961, A. 3, p. 55-56. and cf. Gen. Comment 29,
on states of emergency, para. 5)
“Margin of appreciation”
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Brannigan och McBride, Judgment of 26 May 1993, A. 258-B, p. 29, 33, 40-42)
Human Rights Committee’s General Comment Comment No.29, on states of
emergency.
Maria Lundberg, NCHR, 13 November 2008