Tutorial 3 – Limiting Human Rights

Task 6 – Salvador

1. What are the requirements/conditions to declare a state of emergency?

a. Was it justified at that moment?
b. Is it still today?
2. What is a state of emergency? Spe duration?
3. Is the state of emergency ongoing in El Salvador?
4. Can a state derogate from Int HR law in a state of emergency?
5. Are the actions of El Salvador proportionate? Case law to investigate?
a. State of emergency, relax, arrest protocols
6. Art. 4 ICCPR
7. Notification, monitoring mechanisms in art. 4 ICCPR.
8. Whether EL Salvador has breached its HR obligations?

Litt –
- HR Committee GC No 29
- ICCPR
- Chap 7 (mostly the end part)

The price of peace – the looming HR concerns under El Salvador’s “War on Gangs”

Facts –
- Extreme levels of violence = homicide, sexual assaults, extortion, beatings, and murders by
Gang activity.
- Peak in the crisis
- Declaration of state of emergency
- Result = constrained constitutional rights, allowing relaxed arrest protocols aggressively
targeting gang members, detainees w no warrant or evidence, no right to court hearing
within 72 hours.  Mass arrestations.
- Appreciated by the ppl + beneficial for the masses.
- Legi assembly approved the 41st extension of the state of emergency.

Issue – Is the state of emergency justified at the moment of its declaration, is it still today?
Can the declaration of the state of emergency permit the state to derogate from HR law?
Are the actions of El Salvador in the context of the state of emergency proportionate?
Has El Salvador breached its HR obligations?

Rules –
- ICCPR -> El Salvador is a party + ratified
o Art. 7, 9, 10, 14.
o Art. 4(2)
o Art. 2 ICCPR
- GC-29 on State of emergency -> on Art.4(2) ICCPR
- State of emergency – Art. 4(1) ICCPR - RULE ANALYSIS
o Non-derogable rights – Art. 4(2) ICCPR
Need for a high threshold = public emergency threatening the life of the nation.
 Official proclamation of the state of emergency. (through a national legal process)
Temporary & geographically limited (spe region)
Necessary and proportionate
Non-discrimination (race, sex, …)
Consistent with any other obligations under IL.
o Notification Art. 4(3) to the Secretary General of the UN

Application –
- Non-derogable rights =) Art. 7 on the list + Art. 10 & 14 based on CG-29
- Criteria for State of Emergency =) meet the threshold.
o Public emergency (has to be imp) =) YES
o Is it threatening the life of the nation? YES
o Public proclamation =) to the ppl + to the UN (Art. 4(3)) YES
o Geographic criteria =) cover the whole country as the violence YES
 Limited time =) renewed 41 times NO
o Necessary = it works toward the goal ?/YES
 Proportionate = the least intrusive measure that could be taken? NO
 Keep renewing the state of emergency (the chosen measure) while
the situation has got better.
o Discrimination = No discrimination in the notification YES
 First it is based only on the measure, not on what is happening on the ground
(that is up to the HR Committee).
 Are the measures discriminatory? Derogation of Art. 22 freedom of
association only for women in the state. =) would be discriminatory.
 If the measure is not discriminatory -> then we look on the ground, analysis
informed by the work of the HR Committee.
o Consistent = we assume it is consistent (unless more infos in the text).
- Notification to the UN =) Art. 14, 17, 22 =) would derogate on these spe articles.
 BUT in reality =) Art. 7, 9, 10, 14. Derogated from theses.

Conclusion –
- The state of emergency is not met bc some criteria are not met.
- + the measure are in breach of IL given that some articles are non-derogable.
Task 7 –
1. Can the right of freedom of expression be limited? If so, how?
2. Which legal instrument protects the freedom of expression?
3. What constitutes hate speech?
4. Can we limit rights for the sake of others? (freedom of expression vs protecting others)
5. What is the freedom of expression?
6. If the statement counts as hate speech.

Posting the image is compatible with ICCPR and ICESCR.

- Art. 25(2) ICCPR

- If mocking image =) incompatibility with both ICCPR (Arts. 19, 20, 26) and ICESCR (Arts. 2, 3,
15).
- Art. 19 ICCPR -> freedom of expression.
o → Mocking a Muslim woman in a derogatory or stereotypical way could infringe
upon the dignity and equality of Muslim women, conflicting with Article 19(3)
(respect for the rights of others).
o (3) =) Freedom of expression can be restricted + necessary in a demo society.

- Article 20(2) -> Requires States to prohibit advocacy of national, racial, or religious hatred
that constitutes incitement to discrimination, hostility, or violence.
o If the image rises to the level of incitement against Muslims, it would be
incompatible with the ICCPR.
- Article 26 – Non-discrimination

ICESCR
- Article 2(2) & 3 – Non-discrimination and Gender Equality
o The Covenant obligates states to guarantee rights without discrimination of any kind,
including religion, sex, or ethnicity.
o A mocking portrayal of Muslim women risks reinforcing stereotypes that impair the
equal enjoyment of rights.
- Article 15 – Right to Take Part in Cultural Life
o Includes respect for cultural identity and diversity.
o Mocking or demeaning Muslim women undermines cultural respect and could
conflict with the spirit of cultural rights.

In class

- GC-35 para. 15 =) A political matter of wider freedom

- No call for violence but poli position in democracy
- Hate speech, stereotyping, or discrimination
- GC-34 para 38 disrespect of religion incompatible with ICCPR.
- Freedom of expression vs opinion
o Opinion = absolute
o
Questions –

 Which rights are referred to as qualified rights? Why?

 Under what conditions can States Parties to the ICCPR limit or restrict so-called qualified
rights?

 What is the difference between restrictions or limitations (of qualified rights) and
derogations?

Chap 7 – Right and obligations

Obligations and limitations –

- Obligation can be review as a norm-and-exception-framework  looking at when it is

permissible to restrict the enjoyment of rights.
- Rights categorized in terms of the actions they require to the state = absolute, derogable, or
subject to limitations or @ flexibilities.
o Based on an objective normative hierarchy.
o Or an examination of the proportionality and justification of any rights limitations.
- Increasing state reliance on such limitations  counter-terrorism, financial crisis,
environmental disasters, pandemics, …

Absolute obligations –
- A minority
- Incl = jus cogens obligations -> prohibitions of genocide, torture, @ cruel, in-human or
degrading treatment
- The suspension or elimination of these obligations is never justified =) even in wars, natural
disaster, or @ national emergencies.
- Art. 4(2) ICCPR =) recognizing the non-derogable aspect to certain rights, under any
circumstances.

Derogations and limitations –

- Many HR are mediated by permissible derogations or limitations
- Permissions -> “escape clauses” are sometimes required for states to allow them to suspend
or limit rights in a transparent and non-arbitrary manner, in context of genuine pressures on
their capacities to secure rights.
o To limit the abuse or violation of rights.
o Paradoxical bc occurring in pressure context when violations are likely.
Intro a strict limit on the use + substantive principles – proportionality, regime
oversight, derogations, and limitations provisions – discipline these permissions.
 - Derogation = Art. 4 ICCPR
o Common that civil and poli rights treaties outline the criteria that must be met for a
state to suspend some rights.
o In context of “public emergency threatening the life of the nation”.
o Strictly required by the exigencies of the situation -> the suspension is predicated on
the base of the need to return the situation of state to normalcy. =) The derogation
must be directly connected to this aim.
o Principle of proportionality = used to confirm that the suspension should be
exceptional and temporary in nature. GC-No29.
- Limitation clause = restrictions on right enjoyment. Art. 4 ICESCR
o Formal invocation? = If set in law + serves a legitimate aim + necessary and
proportionate in a demo society.
 A national legal basis is required to prevent arbitrary restrictions.
 Legitimate aim = protection of national secu, public order, and safety or
public health or morals + the undertaken measures must be connected to the
aim’s fulfilment.
 Necessity informed in the light of proportionality -> ensuring that the
limitation is the least restrictive measure available + proper balancing btw
the imp of achieving the aim and the imp of preventing the limitation on the
right.

Progressive and non-retrogressive obligations –

- Permissible limitations on rights = rights that treaties allow states to restrict under ordinary
circumstances (not emergencies). Art. 12 ICCPR
o Obligation for progressive realization of rights (can’t go back in progression) realized
with the maximum available resources.
o Progressive realization =) belongs to the obligation to fulfil rights.

Questions –
- Formal invocation of derogations or limitations? How? Internal system? If so, how is it
checked on?