Law Council of Australia

International Law Section

Lawful restrictions of human rights - how far is too far?

3 October 2024

International Human Rights Law is built on three core state obligations: the duty to respect, protect, and fulfil human rights. While these rights are enshrined in international treaties like the International Covenant on Civil and Political Rights (ICCPR), their realisation often depends on how states enforce them within their own jurisdictions.

Human rights fall into two categories: absolute and qualified. Absolute rights, such as the prohibition of torture or slavery, are inviolable meaning they cannot be derogated under any circumstances. On the other hand, qualified rights, such as freedom of movement, expression, or assembly, are more common and can be justifiably limited to protect state interests.

States are allowed to restrict qualified rights if they can meet a three-part test: the limitation must be (1) prescribed by law, (2) pursuing a legitimate aim, and (3) be necessary and proportionate. The COVID-19 pandemic is a clear example of this, where restrictions on qualified rights were argued as necessary and proportionate in the pursuit of public health goals. This balancing act is interpreted through the margin of appreciation, a principle allowing states some flexibility to maintain sovereignty while adhering to international obligations.

Prescribed by law

For a restriction to be valid, it must be formally enacted into law, providing a safeguard against arbitrary or excessive limitations on human rights. This ensures that restrictions are transparent and subject to legal scrutiny.

Legitimate aim

The second element assesses whether the state's limitation of a right serves a legitimate purpose. Commonly accepted aims include protecting public health, national security, or public order. Without a legitimate aim, the restriction cannot stand.

Necessity and proportionality

The final and most contentious element is whether the limitation is both necessary and proportionate. This is where the balancing act becomes most pronounced—how can a state achieve its public interest goals without unduly infringing on human rights? A notable case illustrating this tension is SAS v France,1 where France’s ban on Muslim full-face veils was challenged as a violation of Article 9 of the European Convention on Human Rights (ECHR). Many Muslim women practising Islam wear certain face veils as a religious obligation, meaning its ban was considered by many as an undue restriction on their right to manifest their religion.

ECHR Article 9 – Freedom of thought, conscience and religion

  1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
     
  2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The European Court of Human Rights accepted that the law had a legitimate aim: promoting social cohesion by ensuring people could interact face-to-face in public. Despite concerns that this ban may unfairly target certain religious practices, the Court granted France significant leeway, ruling that the ban did not violate Article 9.

This case highlights the breadth of the margin of appreciation, essentially allowing states to interpret necessity in ways that could potentially broaden the scope for limiting human rights. While courts approach this issue with a high degree of deference, this interpretation may open the door to wider human rights limitations based on subjective judgments of necessity. Even the Court itself acknowledged the need for "careful examination" when evaluating whether such limitations are truly justified.

As human rights law evolves, it will be fascinating to see how the margin of appreciation continues to be applied, especially in an era where states are facing increasing pressure to balance national interests with global human rights obligations. The flexibility that this doctrine affords may lead to more expansive limitations on rights, raising important questions about the future of human rights protections in international law.

[1] SAS v France, ECtHR, No 43835/11 (2015)

Disclaimer: This communication presents a spotlight on the lawful restriction of human rights under international law. However, it does not constitute legal advice. It does not represent the position of the ILS or the Law Council of Australia. Please consult wider legal commentary to inform yourself on the subject.

Last Updated on 24/03/2025

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