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3. Limitations and Derogations

3.1 Adequacy of Article 29 account of limitations

The second clause of Article 29 – “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” – assumes almost as a matter of course that some limitations on individual rights will be desirable or necessary. It was probably not the function of the UDHR to explain why this is the case. Its purpose has been much more to establish the rights that it proclaims than to vindicate any basis for their limitation. The Declaration as a whole should be read as the assertion of a strong presumption in favor of human rights, and Article 29(2) should be read as placing the burden of proof on anyone who seeks to limit them.

It is critical to recognize the force of Article 29(2)’s insistence that limitations cannot be particularistic or ad hoc but must be determined as a matter of law. In modern terms this would be associated with the idea of proportionality, a principle that has only been clearly articulated in more recent human rights law.1 Similarly, the suggestion that rights may be limited “for the purpose of securing due recognition and respect for the rights and freedoms of others” seems entirely sensible. Perhaps the number and breadth of the rights recognized in the UDHR mean that some conflict among them is inevitable. In articulating the basis on which such conflicts are justly resolved, it is important that all the right-holders in question be treated as equals. Further, limiting a right for the sake of other considerations should not be seen as disparaging that right or the underlying interest or liberty from which it flows in any particular case.

Nonetheless, the idea that the limitation of rights can be justified based on “morality, public order and the general welfare” strikes us as problematic. It is far too general. If “morality” is seen as the customs and mores of a particular society, then the UDHR will fail in its central purpose of creating a common understanding of human rights and the circumstances in which it is appropriate to limit these rights. (If “morality” means the principles of a correct universal moral code, by contrast, there is little hope of agreement as to its content.) And the reference to “the general welfare” as a ground of limitation seems to undercut the modern idea of rights as trumping utilitarian considerations. After all, the mere fact that the denial of a right would marginally increase national income provides no basis for such a denial. We realize that there are serious difficulties in defining clearly what bases for limiting a right, beyond a conflict with other rights, are permissible. The better way forward would be to develop shared understandings as to what reasons are not sufficient justifications for such limitations.

Article 29(2) does not mention resource limitations as a basis for limiting rights, especially social and economic rights. The only time such limitations are referred to in the UDHR is implicitly in Article 22, the general social security provision: “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality [emphasis added].”

3.2 Derogation of rights in national or international emergencies

The question of rights in an emergency is distinct from the question of the balance between rights and the considerations mentioned in Article 29(2). The ICCPR recognizes this in the separate and extensive provision it makes for emergencies in its Article 4.2 Here the ICCPR sets out the rules for derogations in times of emergency; it lays constraints on such derogations; and it identifies certain rights which may not be derogated even in times of emergency. The UDHR does none of this.

It is true that the UDHR initiated our thinking about human rights, and the issue of derogations (as set out in Article 4 of the ICCPR) is a product of a later phase in such thinking that we can now take advantage of. But the UDHR remains in and of itself something of crucial educational importance and a vital foundation of the global ethic of human rights. It is therefore a pity that it did not introduce the world to the idea of emergency derogations – and even more, to the idea that there are certain rights from which derogations may not be made, like the rights not to be tortured or enslaved. Such anti-derogation provisions establish the rights in question as more or less absolute.

The Commission also considered the increasing reliance in the modern world on long-term, continuous states of emergency as justifications for human rights derogations. One example is the U.S.-led “War on Terror,” which has now lasted for 14 years and has been invoked to justify such practices as drone strikes in Pakistan and the indefinite detention of inmates at Guantanamo Bay in Cuba. This challenge is not dealt with adequately by the formulations in Article 4 of the ICCPR, as they envisage relatively short-term, clearly demarcated emergencies. If there are to be long-term derogations of human rights, the international community must develop mechanisms to ensure that this process is not abused. In the Commission’s view, the following standards should apply: first, derogations ought to be publicly announced and publicly justified, whenever possible, and organized in the context of a legislative framework that provides for independent supervision and oversight; second, the justification should substantiate that the derogations in question are the minimum required to achieve the stated objectives; third, suitable arrangements should be in place for the supervision of detention, including procedural safeguards; and fourth, derogations should be for a fixed period, with renewal subject to the same conditions.

The issue of long-term derogations of human rights should be the focus of discussion in relevant world bodies, such as the UN Human Rights Council, as well as across international civil society. The possibility of reaching international agreements on the relevant standards governing long-term derogations ought to be explored.

3.3 Regulation of the use of force

The UDHR was intended to operate in conjunction with the UN Charter’s prohibition on the use of force.

Article 2(4) of the Charter provides that all UN Member States “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” It allowed only two exceptions to the prohibition on the use of force in international law: self-defence under Article 51, and military measures authorized by the UN Security Council in response to “any threat to the peace, breach of the peace or act of aggression.”

Yet in recent years there have been military interventions that have been neither in self-defence nor authorized by the UN Security Council. If the standards governing the use of force in the UN Charter are no longer effective, then the international community needs to create a new and more workable regime. Certainly we should understand that the UDHR and the UN Charter must operate together: a world in which war or the threat of war is endemic cannot be a world in which human rights are respected. The human rights community therefore has an interest in the workability of the UN Security Council’s role being revisited. Any revision should maintain the fundamental restrictions on the use of force.

The rise and persistence of international terrorism have shown us that armed conflict is not confined to state organizations, and in many respects is not amenable in principle to the sort of rules and restrictions laid down in the UN Charter, which mainly envisage inter-state conflict. Much of the rethinking that is required affects the international law of armed conflict, and that is not our subject here. But the problem of international terrorism does raise a number of human rights issues – about surveillance, about detention of suspects, and about targeted killing. Since there appears to be no chance that these issues will abate soon, we need to address them on the basis that the circumstances giving rise to them have to be accepted for the time being as “the new normal.” This does not mean that current tactics of surveillance, detention, and targeted killing should not be questioned. But in doing so human rights principles need to be given due consideration: these practices, and the necessities on which some would base them, must be addressed as permanent features of our human rights environment. Hard work needs to be done to create an architecture of values and principles, derived from current conceptions and the enduring foundations of human rights, that can deal coherently with these new features.

The Commission wishes to emphasize two further points. First, violations of human rights committed in the name of state security can actually facilitate international terrorism by marginalizing individuals and alienating key constituencies, thus generating community support for and complicity in the actions of violent extremists. To be effective and sustainable, therefore, all policies and practices adopted to prevent terrorism must be firmly grounded in respect for human rights and the rule of law. Second, it is vital to take a comprehensive approach to terrorism which encompasses not only essential security-based counter-terrorism measures, but also systematic preventative measures which address the root causes of violent extremism. These include lack of socio-economic opportunities; marginalization and discrimination; poor governance; violations of human rights and the rule of law; prolonged and unresolved conflicts; and radicalization in prisons. The creation of open, equitable, inclusive, and pluralist societies, based on the full respect of human rights and with economic opportunities for all, represents the most tangible and meaningful alternative to violent extremism and the most promising strategy for undermining its appeal.3


1 The most common formulation of proportionality is as a three-part test, which asks: (1) Is the measure suitable to achieve a legitimate aim? (2) Is the measure necessary to achieve that aim or are less restrictive means available? (3) Does the measure nonetheless impose an excessive burden on the individual affected?

2 Article 4 of the ICCPR states:

(1) In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.

(2) No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16, and 18 may be made under this provision.

(3) Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

3 Plan of Action to Prevent Violent Extremism, Report of the Secretary General, A/70/674 (available at http://www.un.org/en/ga/search/view_doc.asp?symbol=
A/70/674
).