3. When can human rights be restricted? Flashcards
What are the 3 conditions under which human rights can be restricted?
Legitimacy - the State can put forward a strong argument that the restriction is in the public interest
Legality - the restriction is imposed in ways that are legal, transparent and not arbitrary with sufficient detail and clarity
Proportionality - the restriction is not excessive and is the least restrictive option possible
Which rights cannot be restricted? What are some examples?
Absolute rights
eg. right to life, prohibition of cruel and degrading treatment, prohibition of torture, prohibition of arbitrary detention
Are absolute rights also non-derogable rights? Are most human rights absolute?
Not necessarily. The right to liberty and security, for example, can be derogated from in times of emergency or war
No. Most human rights can be restricted provided they meet the required conditions.
Under what circumstances would a deportation of an individual who may be subjected to torture in the destination country, be considered acceptable by a human rights court?
Abu Qatada v UK 2012 ECHR. Where a person is being deported to a country where it may be reasonably feared that they will be subjected to torture or ill-treatment, or to serious miscarriages of justice, diplomatic assurances provided by the receiving State at the request of the sending State, have been accepted by human rights courts, only where the assurances are binding and include independent monitoring of that person following removal
In determining whether a restriction/limitation of a human right is proportionate/necessary, what tests can be applied?
Procedural - who was consulted, through which means and who was entitled to input? and/or
Substantive test - are the restrictive measures sound? and/or
Balancing of interest - does the restriction balance the importance of the aim pursued with the negative impact on human rights? ie. the more important the aim, the more scope for restriction.
Most attempts to restrict human rights fail on the basis of necessity and proportionality.
May the strong feelings of a majority be invoked by a State to restrict the rights of a minority?
Yes in some cases.eg abortion. In such cases the restrictions would need to have been the subject of open and public debate and the restrictive measures would need to be justifiable and limited. The feelings of the majority cannot be upheld if they are targeted at a particular segment of a population and therefore considered discriminatory.
What are the legitimate conditions that could justify restrictions to human rights?
Legitimate restrictions to human rights could be justified on the grounds of public order, public security, public health and public morality
With respect to freedom of expression, what legal restrictions might, under some circumstances, be considered legitimate?
Freedom of speech could be subject to some restriction in cases where the expression may defame or create public disorder or undermine public morality eg. self-proclaimed historians who deny the holocaust which would create public disorder.
