discretion on those charged with their execution’.82 Administrative provisions on
their own will be insufficient,83 as will restrictions in traditional, religious or
customary law.84 The law itself must also comply with international human rights
standards.85 The law must also be accessible to the public.
For the purpose of protecting one of the grounds in the treaty
13. The second test requires being able to justify the interference by reference to
the recognised grounds, or aims and purposes, for restricting rights. These
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. These enumerated aims or purposes are not to be interpreted
loosely.
14. Public safety, for example, according to the Siracusa Principles, should be
characterised as ‘protection against danger to the safety of persons, to their life
or physical integrity or serious damage to their property’. 86 National security
may be invoked by States to justify measures limiting certain rights only when
they are taken to protect the existence of the nation or its territorial integrity or
political independence against force or the threat of force.87
15. National security cannot be invoked as a reason for imposing limitations to
prevent merely local or relatively isolated threats to law and order88 or used as
a pretext for imposing vague or arbitrary limitations and may only be invoked
when there exist adequate safeguards and effective remedies against abuse.
The Siracusa Principles also note that ‘[n]ational security cannot be used as a
pretext for imposing vague or arbitrary limitations and may only be invoked
when there exists adequate safeguards and effective remedies against
abuse’.89
16. Public order is defined as ‘the sum of rules which ensure the functioning of
society or the set of fundamental principles on which society is founded’.90
17. Limitations are permitted for the protection of the rights of others. This provision
is to be read in the light of Article 20, paragraph 2, of ICCPR, which prohibits
any advocacy of national, racial or religious hatred, and Article 5, which
82
Human Rights Committee, General Comment No. 27, CCPR/C/21/Rev.1/Add.9 (1999), paragraph
13
83 Communication No. 633/1995, R W Gauthier v Canada, 5 May 1999, paragraphs 13.5 and 13.6.
European Court, Gillan v UK, 12 Jan 2010.
84 Human Rights Committee, General Comment No.34, CCPR/C/GC/34 (2011), para 24.
85 Human Rights Committee, General Comment No.16, HRI/GEN/1/Rev.9 (Vol. I) p.191 (1988), para 3.
86 Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, E/CN.4/1985/4, annex,
para.33.
87 Ibid. para.29. See also Human Rights Committee, Communication No. 833/1998, Karker v France, 30
October 2000.
88 Ibid. para.30 and M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed.
(Kehl/Strasbourg/Arlington, N. P. Engel, 2005), p.506.
89 Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, E/CN.4/1985/4, annex,
para 31.
90 Ibid. para 22.
35
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents