Derogations

Under international human rights laws, what permissible exceptions (often called derogations) exist?

Right	Breakout	Contents
Freedom of Association		In Article 22 of the UN’s International Covenant on Civil and Political Rights (ICCPR), the right to freedom of association is granted to all, including joining trade unions (United Nations 1966) . Restrictions can only be placed on this right if the restrictions are prescribed by the state’s law and “are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.” Similarly, in Europe, derogations are permissible only when “prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others” as is stated in Article 11 of the European Convention on Human Rights (European Court of Human Rights 1953, 12). And Article 16 of the American Convention on Human Rights mirrors the decree of the ICCPR (Inter-American Commission on Human Rights 1969) . Regarding the International Labour Organisation (ILO) and its adoption of Freedom of Association and Protection of the Right to Organize, this body is in place to protect the labor interests of those around the world, and they are prohibited by international law to formulate and/or apply law so as to prejudice against any group (Swepston 1998, 172).
Freedom of Expression		Universal Declaration of Human Rights: This was adopted by the UN General Assembly in 1948. Article 29 stipulates that the rights found in this document, including free expression, “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.” European Convention on Human Rights: This treaty was ratified by most of Europe in 1953 (it is unrelated to the EU). It is enforced in the European Court of Human Rights. From Article 10: The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. Depending on the case, the court has ruled that hate speech is not protected under Article 10. For example, in Aksoy v. Turkey (2000), it held that “remarks aimed at inciting racial hatred in society or propagating the idea of a superior race can not claim any protection under Article 10 of the Convention” (Flauss 2009, 838). It has refused to protect “revisionist language” (837), that which denies certain notorious historical truths. For example, Holocaust denial may not be protected under Article 10. Finally, the court has ruled that Article 10 does not protect speech likely to lead to violence (840). In Ceylan v. Turkey (2000), the court ruled on Turkey’s conviction of a columnist who opposed Turkey’s policies toward Kurds. The court used proportionality analysis to determine that the infringement on free expression outweighed the security risk of the piece, which did not directly call for violence. In a concurring opinion, one judge argued that the court should use a clear-and-present-danger test. American Convention on Human Rights: This human-rights framework was created in 1969, and over the ensuing decades, has been ratified, at least in part, by nearly all of Central and South America. There exists a corresponding inter-American Court of Human Rights. From Article 13: The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a. respect for the rights or reputations of others; or b. the protection of national security, public order, or public health or morals. “Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.” “Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.” Article 11 of the convention guarantees a right to privacy, which includes protections against attacks on one's honor, dignity, and reputation. As such, the court must balance these two considerations, as occurs in cases of libel, slander, and defamation (Posenato 2016, 64). The exceptions for national security, public health, public order, and morals have been interpreted narrowly, so as not to allow authoritarian restrictions on free speech (65). Cairo Declaration of Human Rights in Islam: This 1990 document was ratified by 45 states in the Organization of Islamic Cooperation. There is no relevant court. Article 22: (a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari'ah. 1. Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari'ah. (c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical Values or disintegrate, corrupt or harm society or weaken its faith. (d) It is not permitted to excite nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination. International Covenant on Civil and Political Rights: This is a UN treaty from 1966. Under certain circumstances, it may be enforced by the International Court of Justice, but the ICJ generally only hears disputes between countries. Article 19: Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (order public), or of public health or morals. African Charter on Human and People’s Rights: This charter, with 54 signatories, came into effect in 1986. Article 9 guarantees the right to free expression, although no exceptions are enumerated. The African Court of Human and People’s Rights has repeatedly protected free expression, but not without limit. For example, in Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), the court held that minimizing a genocide need not be protected because it could disturb public order and peace. References: Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/ European Convention of Human Rights: https://www.echr.coe.int/Documents/Convention_ENG.pdf American Convention: https://www.cidh.oas.org/basicos/english/basic3.american%20convention.htm Posenato: https://www.researchgate.net/publication/295244849_THE_PROTECTION_OF_THE_RIGHT_ TO_FREEDOM_OF_EXPRESSION_A_PANORAMA_OF_THE_INTER-AMERICAN_COU RT_OF_HUMAN_RIGHTS_CASE_LAW_A_PROTECAO_DO_DIREITO_A_LIBERDADE_ DE_EXPRESSAO_UM_PANORAMA_DA_JURISPRUDENCIA_DA_COR/link/56e9708808a edfed7389909f/download International Covenant on Civil and Political Rights: https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx Article about whether and how the ICJ enforces human-rights law: https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1001&context=njih r Flauss: https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1124&context=ilj Cairo Declaration: http://hrlibrary.umn.edu/instree/cairodeclaration.html African Charter: https://www.achpr.org/legalinstruments/detail?id=49 Ingabire Victoire Umuhoza v. The Republic of Rwanda (2017), https://en.unesco.org/sites/default/files/african_courts_decisions_final_eng_1.pdf
Freedom of Religion		Universal Declaration of Human Rights: The UDHR provides for exceptions to human rights “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.” American Convention on Human Rights: Article 12-3 of the convention states that religious practice may “be subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others.” The relevant court has “recognized that a state can limit the exercise of free religious expression when there is a conflict with other rights or when such expression constitutes a threat to society or political stability” (Gomes 2009, 98). European Convention on Human Rights: Article 9-2 states that “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” The European Court of Human Rights has interpreted a right not to have one’s religious views insulted by the public and has condoned state action against blasphemy (Koev 2019). In Valsamis v. Greece (1996), the court ruled against a defendant seeking a religious a religious exemption from a school-sponsored activity (Koev 2019). In Eweida and others v. UK (2013), the court ruled against civil servants who refused to register same-sex marriages (Koev 2019). In Sahin v. Turkey ( 2004), the court upheld restricts on beards and headscarves for Muslim university students to “reconcile the interests of various groups” (Koev 2019, 188). In SAS v. France, the court upheld a ban on public face coverings because the face coverings would intrude on concepts of secularism and liberty (because, the court argued, face coverings symbolize subservience). REFERENCES: Evaldo Xavier Gomes, “The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States,” BYU Law Review, 2009, Issue 3 Article 5, 9-1-2009 Dan Koev (2019) Not Taking it on Faith: State and Religious Influences on European Court of Human Rights Judges in Freedom of Religion Cases, Journal of Human Rights, 18:2, 184-200, DOI: 10.1080/14754835.2019.1588715 Universal Declaration of Human Rights: https://www.un.org/en/universal-declaration-human-rights/
Freedom of the Press		In international human rights law, freedom of the press is outlined in the International Bill of Human Rights, which encompasses the Universal Declaration of Human Rights (UDHR), the International Covenant for Civil and Political Rights (ICCPR), and the International Covenant for Economic, Social and Cultural Rights (ICESCR). These documents include the rights protected as well as exceptions, or derogations, if they are applicable. The UDHR is not a treaty, so states are not legally bound to it (Australian Human Rights Commission). Still, the document serves as a foundation for international human rights legislation. Article 19 of the UDHR protects the right to “receive and impart information and ideas through any media and regardless of frontiers.” Article 29(2) briefly states general derogations for the rights laid out in other articles: “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” (United Nations General Assembly, 1948). Unlike the UDHR, the ICCPR is legally binding to the states that ratify it. The ICCPR contains similar language in paragraph 2 of Article 19 relating to freedom of the press, but goes farther in the following paragraphs to mention restrictions. These acceptable restrictions “shall only be such as are provided by law and are necessary: For respect of the rights or reputations of others; For the protection of national security or of public order (ordre public), or of public health or morals” (United Nations General Assembly, 1966). Additionally, Article 20(1) prohibits war propaganda, which is often distributed by means of government and independent news media and involves the strategically crafted systems of gathering and distributing information as to incite war support (Miller, 2004, 8). Freedom of the press includes the media’s right to freely publish information, but also includes the people’s right to receive accurate information, especially during times of political tension, such as war or elections when this right may be jeopardized. The 2009 Joint Declaration of the United Nations, Organization of American States, Organization for Security and Cooperation in Europe, and African Commission on Human and People’s Rights emphasized the importance of people’s access to accurate, impartial information (UN Special Rapporteur on Freedom of Opinion and Expression et al., 2009). Because freedom of the press includes the ability to both receive and impart information, prohibiting war propaganda can be seen both as the protection of people’s right to receive impartial news and the limitation of the press from spreading inaccurate or violence-inciting media. Miller argues that war propaganda includes not only outward attempts to garner war support through the media, but also subtle manipulation of the media by the state to prevent effective dissent, resulting in “information dominance” by the state so they may further their military agendas (Miller, 2004, 14). Article 20(2) of the ICCPR prohibits advocacy of national, racial, or religious hatred that incites discrimination or violence, which applies but is not limited to freedom of the press. The Article 4 of the ICCPR also includes measures for states of emergency and highlights the rights and articles from which states cannot derogate, including the right to life (Article 6), protection against torture (Article 7), protection against slavery (Article 8), protection against debt imprisonment (Article 11), protection against punishment for a crime that was not illegal at the time it was committed (Article 15), the right to recognition before the law (Article 16), and the right to religion and freedom of conscience (Article 18). The specified list of rights to be protected during emergencies does not include freedom of the press, meaning states are permitted to restrict the press under the conditions “that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion, or social origin” and that states inform the United Nations of the right from which they derogated, the reasons they derogated, and the date on which the derogation will end (United Nations General Assembly, 1966, Article 4(1), Article 4(3)). Hafner-Burton, Helfer, and Fariss argue that the processes outlined in derogation clauses of human rights law allow derogators to take the necessary actions during an emergency situation and signal to the international community that those actions will be temporary and carried out in a lawful manner (2011, 673-674). The United Nations includes the descriptive conditions and processes by which states can derogate from rights such as freedom of the press because otherwise states may be hesitant to ratify human rights treaties in the first place, and therefore not protect those rights at all. According to Siehr, “The common task of emergency clauses in human rights instruments is to cope with the challenge of finding a middle course between the recognition of the legitimate right of sovereign States to defend their constitutional, democratic order and the prevention of misuse of the tool of emergency rights” (Siehr, 2004, 546). This can prove to be difficult, as the United Nations Educational, Scientific, and Cultural Organization (UNESCO), the primary body for monitoring freedom of the press and information, reported “that perpetrators of internet shutdowns often try to justify them as a ‘precautionary measure’ or as a matter related to ‘national security,’ ‘public safety,’ or ‘hate speech,’ when the underlying motivations appear strongly correlated with moments of political instability, protests, communal violence, or elections” (UNESCO, 2022, 51). To ensure that derogations from freedom of the press, specifically those in the name of disinformation campaigns, are necessary, lawful, and transparent, UNESCO has recommended: that state restrictions freedom of the press include input from a variety of independent groups, civil society organizations, and research specialists (UNESCO, 2020, 14); that UNESCO partner with other United Nations bodies to guarantee that derogations from freedom of the press are ethical and do not violate the right more than necessary (12); that relevant media actors increase the capacity of independent press councils in their monitoring efforts (217). References: Australian Human Rights Commission. 2007. “What is the Universal Declaration on Human Rights?” Accessed July 5, 2024. https://humanrights.gov.au/our-work/commission-general/projects/what-universal-declaration-human-rights Hafner-Burton, Emilie, Laurence Helfer, Christopher Fariss. 2011. “Emergency and Escape: Explaining Derogations from Human Rights Treaties.” Cambridge University Press 65, no.4. 673-707. https://doi.org/10.1017/S002081831100021X Miller, David. 2004. “Information Dominance: The Philosophy of Total Propaganda Control?” in War, Media, and Propaganda: A Global Perspective, edited by Yahya Kamalipour and Nancy Snow. 7-16. https://books.google.com/books?hl=en&lr=&id=IyQeVFowLnwC&oi=fnd&pg=PR11&dq=war+propaganda+mediums&ots=ld3JH7kqKU&sig=HmizgQAGnNbDQew_MLGqn3h9_QU#v=onepage&q&f=false Siehr, Angelika. 2004. “Derogation Measures under Article ICCPR, with Special Consideration of the War against International Terrorism.” German Yearbook of International Law, 47. 545-593. https://heinonline.org/HOL/Page?handle=hein.journals/gyil47&id=1&collection=journals&index= United Nations Educational, Scientific, and Cultural Organization, International Telecommunication Union, Broadband Commission for Sustainable Development. 2020. “Balancing act: countering digital disinformation while respecting freedom of expression: Broadband Commission research report on ‘Freedom of Expression and Addressing Disinformation on the Internet'” https://unesdoc.unesco.org/ark:/48223/pf0000379015.locale=en United Nations Educational, Scientific, and Cultural Organization. 2022. “Press Freedom in Times of Crisis and Transformation.” UNESCO Global Report 2021/2022: Journalism is a Public Good. 44-81. https://doi.org/10.18356/9789210015424c006 United Nations General Assembly. 1948. “Universal Declaration of Human Rights.” Accessed July 5, 2024. https://www.un.org/en/about-us/universal-declaration-of-human-rights United Nations General Assembly. 1966. “International Convenant on Civil and Political Rights.” Office of the High Commissioner on Human Rights. Accessed July 5, 2024. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, the OAS Special Rapporteur on Freedom of Expression and the ACHPR Special Rapporteur on Freedom of Expression and Access to Information. 2009. “Joint Statement on the Media and Elections.” Joint Declarations of the representatives of intergovernmental bodies to protect free media and expression, 2013. 53-56. https://www.osce.org/files/f/documents/5/5/99558.pdf
Privacy Rights		Article 8(2) of the European Convention on Human Rights (ECHR) presents exceptions to the right to privacy – “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” ( 1950) . The Universal Declaration on Human Rights ( 1948, Art. 12) and the International Covenant on Civil and Political Rights ( 1996, Art. 17) only prevent arbitrary and unlawful searches, allowing for reasonable searches. References: European Convention on Human Rights. Council of Europe. Nov. 4, 1950. https://www.echr.coe.int/documents/convention_eng.pdf International Covenant on Civil and Political Rights. United Nations General Assembly (UNGA). Dec. 16, 1996. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx Universal Declaration on Human Rights. UNGA. Dec. 10, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights