Are All Rights Absolute? Legal Interpretation of Non-Derogable Rights

The concept of “rights” is fundamental to modern legal and political thought, serving as the bedrock upon which notions of justice, dignity, and individual autonomy are built. From the Universal Declaration of Human Rights to national constitutions, the idea that every human being is entitled to certain fundamental protections is widely accepted. However, the seemingly straightforward assertion of “rights” belies a complex legal and philosophical debate: Are all rights absolute, or can they be limited, even in extreme circumstances? This question leads us to a deeper exploration of “non-derogable rights” – a category of human rights deemed so essential that they cannot be suspended, even during times of public emergency.

This extensive blog post will delve into the intricacies of absolute and non-derogable rights, examining their definitions, historical evolution, philosophical underpinnings, and the legal frameworks that govern them. We will analyze the distinctions between absolute and non-derogable rights, explore the justifications for their limitations, and consider the challenges of their implementation in a complex world. Through this comprehensive analysis, we aim to provide a zero-blind-spot understanding of this critical aspect of international human rights law.

The Spectrum of Rights: Absolute, Non-Derogable, and Qualified

To understand whether all rights are absolute, it’s crucial to first differentiate between various categories of rights recognized in international and domestic law. Not all rights are created equal in terms of their susceptibility to limitation or suspension.

Absolute Rights: Unwavering and Unconditional

At one end of the spectrum lie absolute rights. These are rights that cannot be limited or infringed upon under any circumstances, not even during a declared state of emergency, war, or other public danger. Their nature is such that any restriction would fundamentally violate their essence. The consensus in international human rights law is that very few rights are truly absolute.

The most widely recognized absolute rights include:

• The prohibition of torture and cruel, inhuman, or degrading treatment or punishment (Article 7, ICCPR; Article 3, ECHR): This is perhaps the quintessential absolute right. No justification, however dire the circumstances, can legitimize torture. The human dignity it protects is considered inviolable.
• The prohibition of slavery and servitude (Article 8(1) and (2), ICCPR; Article 4(1), ECHR): The fundamental right to not be owned or treated as property is universally upheld without exception.
• The prohibition of retroactive criminal laws (nullum crimen sine lege, nulla poena sine lege – no crime without law, no punishment without law) (Article 15, ICCPR; Article 7, ECHR): Individuals cannot be punished for acts that were not considered crimes at the time they were committed, nor can they receive a harsher penalty than what was applicable at the time of the offense. This protects legal certainty and prevents arbitrary prosecution.
• The right to recognition as a person before the law (Article 16, ICCPR): This right ensures that every individual has legal personality and capacity, meaning they exist as a subject of rights and duties in the eyes of the law.

It’s important to note that even for these “absolute” rights, their definition sometimes involves a threshold. For example, what constitutes “degrading treatment” might be subject to interpretation, but once the threshold is met, the prohibition is absolute. The internal aspect of freedom of thought, conscience, and religion (what one believes internally) is also often considered absolute, as it cannot be restricted or changed by the state.

Non-Derogable Rights: Immune to Emergency Suspension

The concept of non-derogable rights is closely related to, but distinct from, absolute rights. Non-derogable rights are those that cannot be suspended or set aside by a state, even in times of officially proclaimed public emergency threatening the life of the nation. While absolute rights can never be limited, non-derogable rights may, in their ordinary application, allow for certain limitations, but these limitations cannot be intensified or removed during an emergency.

The primary international instrument that explicitly outlines non-derogable rights is Article 4(2) of the International Covenant on Civil and Political Rights (ICCPR). It stipulates that no derogation is permitted from:

• Right to life (Article 6): While states may use lethal force under strictly regulated circumstances (e.g., self-defense, lawful acts of war), the fundamental right to life cannot be suspended, and the strict safeguards governing the use of lethal force must always apply, even in emergencies.
• Prohibition of torture or cruel, inhuman or degrading treatment or punishment (Article 7): This is both an absolute and a non-derogable right.
• Prohibition of slavery and servitude (Article 8, paragraphs 1 and 2): This is also both an absolute and a non-derogable right.
• Prohibition of imprisonment for inability to fulfill a contractual obligation (Article 11): This prevents debtors’ prisons.
• Prohibition against retrospective operation of criminal laws (Article 15): This is another absolute and non-derogable right.
• Right to recognition as a person before the law (Article 16): An absolute and non-derogable right.
• Freedom of thought, conscience, and religion (Article 18): While the manifestation of one’s religion may be subject to lawful limitations (e.g., public order, health), the internal freedom to hold beliefs is non-derogable.

Other human rights instruments, like the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (ACHR), also contain derogation clauses and list similar non-derogable rights. The African Charter on Human and Peoples’ Rights is notable for not having an explicit derogation clause, which some scholars argue means all rights within it are, in effect, non-derogable in emergencies, while others point to internal limitation clauses.

The key distinction is this: an absolute right can never be restricted, while a non-derogable right, though generally enjoying high protection, might have permissible limitations in normal times (e.g., freedom of religion can be limited to protect public safety) but these limitations cannot be expanded or the right suspended during emergencies. The core essence and safeguards of a non-derogable right must remain intact.

Qualified Rights: Subject to Legitimate Limitations

The vast majority of human rights fall into the category of qualified rights. These rights can be legitimately limited or restricted by states under specific conditions, typically to protect important public interests or the rights and freedoms of others. Such limitations must be:

• Prescribed by law: The limitation must have a clear legal basis.
• Necessary in a democratic society: This requires demonstrating a pressing social need for the limitation.
• Proportionate to the legitimate aim pursued: The limitation should not be excessive or go beyond what is required to achieve the legitimate aim.
• Pursuing a legitimate aim: Common legitimate aims include national security, public safety, public order, public health or morals, and the protection of the rights and freedoms of others.

Examples of qualified rights include freedom of expression, freedom of assembly, and the right to respect for private and family life. For instance, freedom of expression can be limited to prevent incitement to violence or defamation, and freedom of assembly can be restricted to maintain public order.

Historical Evolution of Non-Derogable Rights

The concept of non-derogable rights is not a new invention but has evolved significantly over centuries, rooted in philosophical traditions and shaped by historical experiences, particularly the atrocities of the two World Wars.

Early Philosophical Foundations

Philosophical ideas about inherent, inalienable rights laid the groundwork for the modern understanding of non-derogable rights. Thinkers like John Locke articulated natural rights that pre-exist government and cannot be taken away. Immanuel Kant’s categorical imperative, which emphasizes treating humanity always as an end and never merely as a means, implicitly supports the idea of certain inviolable rights. These philosophical underpinnings suggest that certain aspects of human dignity are so fundamental that they cannot be compromised, regardless of utilitarian calculations or state necessity.

The Aftermath of World War II and the Birth of Modern Human Rights Law

The horrors of the Holocaust and other wartime atrocities brought into sharp focus the need for international legal protections that would prevent states from perpetrating systematic abuses against their own populations, even in times of national emergency. The idea emerged that some rights were so foundational to human existence and dignity that they must remain inviolable, even when national survival seemed at stake.

This led to the drafting of key international human rights instruments:

• Universal Declaration of Human Rights (UDHR) (1948): While not a treaty, the UDHR set the moral and aspirational standard for human rights globally. It laid the groundwork for the idea of universal and inherent rights.
• International Covenant on Civil and Political Rights (ICCPR) (1966): This landmark treaty explicitly introduced the concept of “non-derogable” rights in Article 4. The drafters recognized that states might face genuine emergencies, but they also understood the danger of states abusing such powers to suppress fundamental freedoms. Article 4 aimed to strike a balance by allowing derogations from some rights while safeguarding a core set of irreducible rights.
• Regional Human Rights Conventions: Following the ICCPR, regional instruments like the European Convention on Human Rights (1950) and the American Convention on Human Rights (1969) also incorporated derogation clauses with lists of non-derogable rights, often mirroring those in the ICCPR.

The historical trajectory shows a clear movement towards recognizing that while states have legitimate needs to respond to crises, there are limits to the extent to which they can curtail fundamental human rights. The concept of non-derogability represents a crucial safeguard against authoritarianism and the erosion of human dignity during periods of instability.

Legal Interpretation and the Conditions for Derogation

The legal interpretation of non-derogable rights, particularly in the context of derogation clauses, is critical. Article 4 of the ICCPR, for instance, sets out strict conditions that must be met for a state to lawfully derogate from its obligations:

1. Public Emergency Threatening the Life of the Nation: The emergency must be exceptionally grave, affecting the entire population or a significant portion thereof, and posing a genuine threat to the organized life of the community. Minor disturbances, internal unrest, or localized crises generally do not meet this high threshold.
2. Officially Proclaimed: The existence of the emergency must be officially proclaimed, usually through a formal declaration, ensuring transparency and accountability.
3. Strictly Required by the Exigencies of the Situation (Necessity and Proportionality): Any measures taken must be strictly necessary to address the emergency and proportionate to the threat. This is a crucial test, requiring states to demonstrate that the derogating measures are the least restrictive means to achieve the legitimate aim. They cannot be arbitrary or discriminatory.
4. Not Inconsistent with Other Obligations under International Law: Derogating measures must not violate other international legal obligations, including customary international law and humanitarian law. For example, a state cannot derogate from the prohibition of torture even if it’s facing an existential threat.
5. Non-Discriminatory: The measures taken must not involve discrimination solely on the ground of race, color, sex, language, religion or social origin.
6. Notification: States must immediately inform other States Parties to the Covenant, through the UN Secretary-General, of the provisions from which they have derogated and the reasons for such derogation. They must also notify when the derogation is terminated. This notification mechanism serves as an important oversight tool.

The Human Rights Committee, the body that monitors the implementation of the ICCPR, has issued General Comment No. 29 on Article 4, providing authoritative guidance on the interpretation of derogation provisions. It emphasizes that the burden of proof lies with the State Party to justify its derogation and that any measures must be of an exceptional and temporary nature.

The Justifications and Challenges of Limiting Rights

The debate over whether rights can be limited, and which ones, touches upon fundamental questions of societal organization, security, and individual liberty.

Justifications for Limitations

The primary justifications for limiting certain human rights stem from the need to:

• Protect the rights and freedoms of others: One person’s exercise of a right should not unduly infringe upon another’s. For example, freedom of speech does not extend to incitement to violence or defamation, as these harm others.
• Safeguard public order and safety: In a society, certain restrictions are necessary to prevent chaos, crime, and threats to collective well-being.
• Preserve national security: States have a legitimate interest in protecting themselves from external and internal threats. However, this justification is often subject to abuse and requires strict scrutiny to prevent arbitrary suppression of dissent.
• Promote public health and morals: During public health crises, limitations on movement or assembly might be necessary to prevent the spread of disease. Similarly, some restrictions on certain forms of expression might be justified on grounds of public morals, though this is a highly contentious area.

Challenges in Interpretation and Implementation

Despite the clear legal frameworks, the application of limitations and the distinction between absolute, non-derogable, and qualified rights present significant challenges:

• Defining “Public Emergency”: What constitutes a “public emergency threatening the life of the nation” can be subjective. States may be tempted to declare emergencies to suppress political dissent or avoid accountability. The Human Rights Committee has often been critical of states that invoke Article 4 for situations that do not meet the stringent criteria.
• Necessity and Proportionality: Assessing whether a limitation is truly “necessary” and “proportionate” is often a complex balancing act. It requires careful consideration of the specific context, the severity of the threat, and the availability of less restrictive alternatives. Courts and human rights bodies play a crucial role in scrutinizing these justifications.
• Scope of “Absolute” and “Non-Derogable” Rights: While certain rights are universally accepted as absolute or non-derogable, there can be nuances in their application. For instance, the threshold for what constitutes “torture” can be debated, even if the prohibition itself is absolute. Similarly, while the right to life is non-derogable, lawful acts of war or self-defense can lead to loss of life, raising questions about the precise scope of the right in these extreme contexts. The non-derogability of the right to life means that the strict rules and safeguards that apply when a state agent uses lethal force must always be observed, even in an emergency.
• Political Will and Accountability: Even with robust legal frameworks, the actual protection of non-derogable rights depends heavily on the political will of states and the effectiveness of accountability mechanisms, both domestic and international. States may still violate these rights, particularly in situations of conflict or severe repression.
• Balancing Competing Rights: Sometimes, the exercise of one right might conflict with another. For example, freedom of expression might clash with the right to privacy or the right to be free from discrimination. Legal systems must develop mechanisms for balancing these competing interests in a fair and just manner.
• New Technologies and Evolving Threats: The advent of new technologies (e.g., surveillance, artificial intelligence) and evolving threats (e.g., cyber warfare, global pandemics) constantly challenge the existing interpretations of rights and their limitations. Governments may argue for broader powers in response to these new challenges, leading to tensions with human rights protections.

Case Studies and Practical Implications

Examining real-world scenarios helps to illustrate the complexities of applying the principles of absolute and non-derogable rights.

The “War on Terror” and Torture

The “War on Terror” following the September 11, 2001, attacks saw some states, notably the United States, engage in practices that many human rights organizations and legal experts argued amounted to torture or cruel, inhuman, or degrading treatment. Techniques like waterboarding and enhanced interrogation methods were justified by some as necessary for national security. However, the international community largely condemned these practices, reaffirming the absolute nature of the prohibition against torture. This period highlighted the immense pressure states can face to compromise fundamental rights in times of perceived existential threat, and the critical importance of upholding absolute prohibitions.

Public Health Emergencies and Freedom of Movement

The COVID-19 pandemic presented a global test for human rights. Governments worldwide implemented lockdowns, travel restrictions, and mandatory quarantines to control the spread of the virus. These measures significantly curtailed rights such as freedom of movement and assembly. While many of these limitations were considered legitimate and proportionate to the public health emergency, they also raised questions about their necessity, proportionality, and duration. Crucially, while freedom of movement is a qualified right and thus derogable under certain conditions, the non-derogable rights, such as the prohibition of torture, remained fully in force.

Internal Conflicts and Derogations

Many countries facing internal armed conflicts or civil unrest have invoked emergency powers and derogated from human rights obligations. The legality and legitimacy of these derogations are often scrutinized by international bodies. For instance, concerns have been raised about states using emergency powers to silence dissent, suppress opposition, or indefinitely detain individuals without due process, potentially violating non-derogable rights like the right to recognition before the law or aspects of the right to a fair trial.

These case studies underscore that the existence of legal frameworks for non-derogable rights does not automatically guarantee their protection. Constant vigilance, robust domestic legal systems, independent judiciaries, active civil society organizations, and strong international oversight are essential to ensure these fundamental rights are respected even in the most challenging circumstances.

The Philosophical and Ethical Dimensions

Beyond the legal interpretations, the question of whether all rights are absolute also delves into profound philosophical and ethical territory.

The Inherent Dignity of the Human Person

The very foundation of human rights rests on the concept of the inherent dignity of the human person. This dignity is often seen as the source from which all rights flow. If certain rights are absolute or non-derogable, it is because their violation would fundamentally undermine this inherent dignity. To torture someone, for example, is to deny their humanity, treating them as a mere object or means to an end, rather than an individual with intrinsic worth.

Utilitarianism vs. Deontology

The debate often pits utilitarian arguments against deontological ones. A utilitarian perspective might suggest that in extreme circumstances, sacrificing some individual rights could lead to the greatest good for the greatest number. For example, “enhanced interrogation” might be justified if it prevents a terrorist attack that would kill many people. However, deontological ethics, which focuses on duties and rules regardless of consequences, would argue that certain actions are inherently wrong, such as torture, and should never be permitted, regardless of the potential benefits. The concept of absolute and non-derogable rights aligns strongly with a deontological approach, asserting that certain moral boundaries cannot be crossed.

The Slippery Slope Argument

A strong argument against allowing any exceptions to seemingly absolute rights is the “slippery slope” concern. If a society permits even minor infringements on what are considered fundamental rights, it risks setting a precedent that could lead to a gradual erosion of protections. The argument is that once a crack appears in the wall of absolute prohibition, it becomes easier to justify further, more significant breaches, ultimately undermining the entire human rights framework.

The Role of International Customary Law

It’s also important to consider that some non-derogable rights, such as the prohibition of torture, have attained the status of international customary law and jus cogens. Jus cogens norms are peremptory norms of general international law from which no derogation is permitted. This means they are binding on all states, regardless of whether they have ratified specific human rights treaties. This further reinforces the idea that certain rights are truly universal and non-negotiable.

Conclusion: The Enduring Imperative of Non-Derogable Rights

In conclusion, the answer to the question “Are all rights absolute?” is a nuanced one: No, not all rights are absolute. While a very small number of rights are considered truly absolute, meaning they can never be limited, the broader category of “non-derogable rights” represents a crucial subset of human rights that cannot be suspended even during times of severe public emergency. The majority of human rights are qualified rights, meaning they can be legitimately limited under specific, carefully defined conditions.

The legal interpretation of non-derogable rights, as enshrined in international instruments like the ICCPR, underscores a fundamental principle: even when states face dire threats, there is an irreducible core of human dignity and fundamental freedoms that must remain inviolable. These rights serve as a critical bulwark against state overreach and the potential for tyranny, particularly in times of crisis.

The historical evolution of human rights law, forged in the crucible of devastating conflicts, highlights the imperative of establishing non-derogable rights as a safeguard against the worst abuses. While the challenges of implementing and enforcing these rights are significant, particularly amidst complex geopolitical realities and emerging threats, the commitment to their unwavering protection remains an enduring legal and ethical imperative. Upholding non-derogable rights is not merely a legal formality; it is a testament to our collective commitment to the inherent dignity and worth of every human being, even when tested by the most extreme circumstances.