At the outset, it is important to highlight that the vast majority of counterterrorism measures are adopted on the basis of ordinary legislation. In a
limited set of exceptional national circumstances, some restrictions on the
enjoyment of certain human rights may be permissible.
Ensuring both the promotion and protection of human rights and effective
counter-terrorism measures nonetheless raises serious practical challenges
for States. One such example is the dilemma faced by States in protecting
intelligence sources, which may require limiting the disclosure of evidence
at hearings related to terrorism, while at the same time respecting the
right to a fair trial and the right to a fair hearing for the individual.
These challenges are not insurmountable. States can effectively meet
their obligations under international law by using the flexibilities built into
the international human rights law framework. Human rights law allows
for limitations on certain rights and, in a very limited set of exceptional
circumstances, for derogations from certain human rights provisions. These
two types of restrictions are specifically conceived to provide States with
the necessary flexibility to deal with exceptional circumstances, while at
the same time—provided a number of conditions are fulfilled—complying
with their obligations under international human rights law.
1. Limitations
As provided for by international human rights conventions, States may
legitimately limit the exercise of certain rights, including the right to
freedom of expression, the right to freedom of association and assembly,
the right to freedom of movement and the right to respect for one’s private
and family life. In order to fully respect their human rights obligations while
imposing such limitations, States must respect a number of conditions.33
In addition to respecting the principles of equality and non-discrimination,
the limitations must be prescribed by law, in pursuance of one or more
specific legitimate purposes and “necessary in a democratic society.”
(a) Prescription by law
Common to international, regional and domestic human rights instruments
and guidelines is the requirement that any measure restricting the
enjoyment of rights and freedoms must be set out within, or authorized
by, a prescription of law.34 To be “prescribed by law”: (a) the law must
be adequately accessible so that individuals have an adequate indication
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