II. REQUIREMENTS, LIMITATIONS AND EFFECTS OF THE CONCURRENT APPLICABILITY OF
INTERNATIONAL HUMAN RIGHTS LAW AND INTERNATIONAL HUMANITARIAN LAW IN ARMED CONFLICT
include terms allowing limitations on the extent to which the right can be
exercised. The International Covenant on Economic, Social and Cultural
Rights accepts the possibility of limitations on rights protected by the
Covenant in general (art. 4). Limitations can be applied in times of armed
conflict as well as at other times. The possibility of imposing limitations is
conditioned as follows:
Necessary and prescribed by law: States are restricted by the language
of the treaty provisions themselves. For example, article 18.3 of the
International Covenant on Civil and Political Rights provides that
“[f]reedom to manifest one’s religion or beliefs may be subject only to
such limitations as are prescribed by law and are necessary to protect
public safety, order, health, or morals or the fundamental rights and
freedoms of others.” Article 12.3, on liberty of movement, contains a
similar provision;
Compatible with the right itself and the promotion of the general
welfare: for example, article 4 of the International Covenant on
Economic, Social and Cultural Rights provides that “the State may
subject [Covenant] rights only to such limitations as are determined
by law only insofar as this may be compatible with the nature of these
rights and solely for the purpose of promoting the general welfare in
a democratic society”;
Proportionality and “intrusiveness”: international jurisprudence and
practice have insisted on the fact that restrictions to human rights must
observe the principle of proportionality and must limit to the maximum
extent possible their repercussions on the enjoyment of other rights.
The International Court of Justice, citing the Human Rights Committee’s
general comment No. 27 (1999) on freedom of movement, noted
that the restrictions on human rights “must conform to the principle of
proportionality” and “must be the least intrusive instrument amongst those
which might achieve the desired result”. It applied similar conditions to
its assessment of the limitations on the enjoyment of economic, social
and cultural rights resulting from the construction of the wall.64
64
Legal Consequences of the Construction of a Wall, para. 136.
51
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