Rights can conflict with each other, one obvious example being that one person’s right to private life may conflict with another person’s right to freedom of expression. A fair balance has to be struck between the two competing interests. Qualified rights can be lawfully restricted only if the tests of legality, necessity, proportionality and non-discrimination have been satisfied.147 An understanding of how to lawfully qualify rights is essential to understanding how civil and political rights work as a whole. Derogable and non-derogable rights An additional way of categorizing rights is to divide them between those rights that can be lawfully derogated from in times of war or other public emergency threatening the life of the nation,148 and those rights that permit no derogation under any circumstances. In the context of counter-terrorism measures, the power to derogate is significant.149 Restricting rights An individual may assert that a state policy, a certain course of conduct or a failure to act is an interference with a particular right. Once the interference is established the burden shifts to the state to justify its actions (or failure to act). To make lawful an interference with any qualified rights, the state must be able to satisfy five tests: • • • • • legality; justification; necessity; proportionality; and non-discrimination. The final test, the prohibition on discrimination, is relevant to all claims of human rights violations. Legality: is there a legal basis for the interference? As has already been discussed, what this means is that an individual must be able to know or find out what the law is that permits an interference with their rights and they must be able to regulate their conduct in accordance with it.150 The test of legality therefore requires forseeability, accessibility and precise laws. Is there a recognized justification or ground for restricting rights? The second test requires being able to justify the interference by reference to the recognized grounds — or aims and purposes — for restricting rights set out within the article that grants the rights. These grounds generally include national security, public order or safety, protecting the rights and freedoms of others, prevention of disorder and crime, and protecting health and morals. 147 In the text of the ICCPR a number of articles refer to limiting rights in different ways, such as if it is necessary in a democratic society or non-arbitrary. The test for both is ultimately the test of proportionality. 148 The same terminology is used in Article 4 ICCPR and Article 15 ECHR. 149 See pages 87-91 below. 150 For a detailed analysis of principles of legality, see pp. 60-64 above. 68 Countering Terrorism, Protecting Human Rights