Introduction to Human Rights | Lesson 12: “Restrictions on Rights”


In this lesson we will refer to the restrictions
that may be imposed on certain rights. We will touch on four points: 1. Rights and duties;
2. Absolute rights versus rights that may be subject to restrictions; 3. Limitations
that may be imposed on certain rights; and 4.The derogation or suspension of certain
rights. Human beings are entitled to human rights
which States must respect, ensure and fulfill. Human beings are also subject to duties towards
their State and towards others. Examples of such duties are: to obey the laws, to pay
taxes and to bear reasonable burdens for the sake of the common good, such as to defend
one’s country. Duties are a correlate to rights but, strictly speaking, they are not
a restriction to them. Some civil and political rights are absolute:
Most rights falling in the category of inviolabilities, that is, the rights belonging to the intimate
sphere of security, privacy and identity of a person. The right to equality is also absolute.
On the contrary, many rights, including all civil liberties, are not absolute in that
they may be legitimately subject to restrictions. This is not to say that the rights belonging
to the intimate sphere of security, privacy and identity of a person or the right to equality
are more important than others. Simply, they generally do not collide with other rights
or values. Yet, as a rule, persons do not just remain in their intimate sphere. Social
life and all its benefits come with the cost of trying to accommodate competing interests. This entails frequent collisions which must be regulated, much as an intense city traffic
requires rules, red lights and traffic signs. So, there are some reasonable and necessary
restrictions to the exercise of certain civil and political rights, particularly civil liberties. These restrictions may consist of limitations
applicable at all times, and derogations or suspensions, which may apply in times of certain
grave emergencies. Civil liberties and some other rights may
be legitimately limited on the following grounds: a) The rights of others: According to an ancient
Kantian maxim, the liberties and rights of others are the frontier which cannot be trespassed
when exercising one’s rights. b) Collective security or law enforcement:
The exercise of civil and political rights cannot entail the disruption of peace and
social tranquility. Criminal law is the main system called to deal with disruptions of
social peace. c) The just requirements of the common good:
This means that there are certain reasonable burdens which the individual must bear as
a member of a community, but without sacrificing his or her fundamental dignity. Specifically,
international law mentions as ‘common good’ reasons to limit certain liberties the requirements
of national security, public order, public health and public morals. Some examples illustrate the reasonableness
of the ‘common good’ basis for restricting certain rights: Concerning public order, the
American jurist Oliver Wendell Holmes rightly pointed out, in 1919, that freedom of speech
does not include the right to falsely shout “fire!” in a crowded theater. As to national
security, the right to associate does not extend to confederating with the enemy. Other
examples are those of a quarantine, which imposes restrictions on the freedom of movement
for public health reasons and the prohibition of child pornography for the sake of public
morals (and the protection of children). Unlike limitations, which may be applied in
all circumstances, derogations or suspensions of certain rights are more intense restrictions,
that cannot be applied unless there are exceptional circumstances. Such circumstances include
war, public perils and other grave emergencies. Therefore, they are based on collective security
and the just requirements of the common good. The conditions for the legitimacy of such
derogations or suspensions are: a) They must be instituted in response to
a grave emergency specifically mentioned by the law. b) They must be limited, in nature, time, degree and extension, to the exigencies of the emergency. c) They must not conflict with other obligations
of the State under international law. d) They must not entail arbitrary discrimination
based on race, colour, sex, language, religion or social origin. e) There are some “absolute rights” which
that can never be derogated or suspended, under any circumstances. For example, the
right to legal personality; the right to personal integrity (and therefore the prohibition of
torture); the prohibition of slavery; the principle of legality in criminal law; the
freedom of conscience and of religion; the protection of the family; the right to have
a name; the rights of the child; and political rights. As for the right to life, it cannot
be derogated or suspended, but it is clearly subject to limitations in case of legitimate
self-defense and in case of war (regarding the life of combatants). Those who support
the death penalty (I do not) accept this additional limitation to the right to life. Please visit our website www.moocchile.com,
and you are cordially invited to watch the next class of this course.

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