Derogations from the Right to Liberty

Abstract

Chapter 10 of this title gave consideration to the question of limiting human rights under international law, recognising that the nature of international human rights law is such that, other than in the case of a limited number of absolute rights, the guarantee of rights and freedoms incorporates a level of flexibility. This allows States to give effect to rights and freedoms, while at the same time pursuing important democratic objectives designed to protect society and to maintain a balance between conflicting rights. In the context of the International Covenant on Civil and Political Rights (ICCPR),1 and the European Convention on Human Rights (ECHR) to which the United Kingdom is also party,2 this accommodation is effected through two means. Limitations are permitted by virtue of the particular expression of the right or freedom within the ICCPR and ECHR. There is also the capacity, under article 4 of the ICCPR or article 15 of the ECHR, to temporarily suspend the application of certain rights during a state of emergency which threatens the life of a nation. Acts of terrorism, or imminent threats thereof, may create circumstances which pose a threat to the life of the nation. The derogation mechanism is thus an important one to consider in the context of counter-terrorism. However, as recognised by Boyle, although conditions of violence and terrorism may justify resort to derogation, these are also conditions where rights and freedoms are most at risk.3