maria lundberg, nchr, 13 november 2008 humr5120 substantive rights reservations, limitations

Maria Lundberg, NCHR, 13 November 2008

HUMR5120Substantive Rights

Reservations, Limitations


Reservations, Limitations and Derogations

• 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



• 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



• A balance of interests– Society v. individual

• Universality of human rights?– Which universality?


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


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.


Reservations (2)

• Art. 57 ECHR1. 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


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


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”

• The “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


Criteria under ECHR

• 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, P7-7-2).


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


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)


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


Limitations

• Balance of legitimate interests• No time limitations• Strict interpretation • Must be necessary in a democratic society – “margin

of appreciation”• Proportionality


Limitations are permissible

ECHR ICCPR Other prov. of relevance

Rights and freedoms

Art. 8 Art. 17, 23 Private and family life

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 association



Art. 2 Protocol 4

Art. 12 Freedom of movement/residence

Art. 1.2 Protocol 7

Art. 13 Expulsion of aliens

Art. 16 Cf. Art. 25 ICCPR

Political activity of aliens

Art. 1 Protocol 1

Right to property



• 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.”


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 ...)”


Strict interpretation

• “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


Permissible limitations

• 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”


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)


Legitimate aims as listed in the provisions

• “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”


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.


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.


Derogations

• 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


Derogations – some treaties

• Art. 4 ICCPR • Art. 2.1 Second Optional protocol

– reservation for war time

• Art. 15 ECHR • Art. 3 ECHR Protocol 6


Four questions

1. When?

2. How?

3. For how long?

4. Lawful or not?


1. WHEN?

1. War and state of emergency2. Threat to the existence of the State

• 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: 1. It must be actual or imminent.2. Its effects must involve the whole nation.3. The continuance of organised life in the community must be threatened4. 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)


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 non-derogable under international law, see Human Rights Commttee Gen. Comment 29, on states of emergency)


2. HOW?

• 2.1 Non-derogable rights CONT.:

• A number of rights are non-derogable according to Art. 4 ICCPR and Art. 15 ECHR

• Art. 15 ECHR: – 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:– Art 11 (prison upon non-fulfilment of contractual obligation) and– Art 18 (thought, concience and religion)


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


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. 80-81, 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.


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.


4. LAWFUL or NOT?

• 4.a Requirements in Article 4 of ICCPR and Article 15 of the ECHR And in the domestic legal order

– Brannigan och McBride, Judgment of 26 May 1993, A. 258-B, s.56-57; Lawless, p. 60, Ireland v. the UK, p.84

• 4.b A balance between State discretion and the supervisory organs’ competence

– 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” – 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 humr5120 substantive rights reservations, limitations

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