Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General Introduction
Under the International Covenant on Civil and Political Rights and
the American Convention on Human Rights, reservations must be
compatible with the object and purpose of the treaty.
The European Convention on Human Rights forbids reservations of a
general character. Reservations must relate to a specific provision of the
Convention.
2.7 Limitations on the exercise of rights
The exercise – albeit not the substance per se – of certain rights, such as the
right to freedom of expression, the right to freedom of association and assembly, the
right to freedom of movement and the right to respect for one’s private and family life
and correspondence, is generally accompanied by certain limitations that can be
imposed, for instance, in order to protect the rights and freedoms of others, national
security, and public health or morals.42 These limitations are the result of carefully
weighed interests. What they show is the balance struck between, on the one hand,
individuals’ interest in maximizing the enjoyment of the right that belongs to them,
and, on the other hand, the interest of society in general, that is, the general interest, in
imposing certain restrictions on the exercise of this right, provided that they are taken
in accordance with the law and are necessary in a democratic society for certain
specific legitimate purposes. In interpreting and applying these limitations in any
given case, it will therefore be necessary to make a careful examination of the
proportionality of the restrictive measure or measures concerned both in general
and as applied in the individual case. Chapter 12 of this Manual provides numerous
examples of how these limitations have been applied in specific cases.
Limitations on the exercise of human rights are the result of a careful
balance between the individual’s interest and the general interest, and
must, in order to be lawful:
l be defined by law;
l be imposed for one or more specific legitimate purposes;
l be necessary for one or more of these purposes in a democratic society
(proportionality).
In order to be necessary the limitation, both in general and as applied in
the individual case, must respond to a clearly established social need. It is
not sufficient that the limitation is desirable or simply does not harm the
functioning of the democratic constitutional order.
42 See e.g. articles 12(3), 13, 18(3), 19(3), 21, 22(2) of the International Covenant on Civil and Political Rights; articles 11 and
12(2) of the African Charter on Human and Peoples’ Rights; articles 11(2), 12(3), 13(2), 15 and 16(2) of the American Convention
on Human Rights; and articles 8(2)-11(2) of the European Convention on Human Rights.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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