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Restriction of human rights

Not all human rights principles enjoy the same level of protection. Instead, they can have different legal characteristics, being absolute or non-absolute in nature or having inherent limitations.

Some of the most fundamental human rights are "absolute". Such rights include the prohibitions on torture, on slavery and on retroactive criminal laws. The absolute character of these rights means that it is not permitted to restrict these rights by balancing their enjoyment against the pursuit of a legitimate aim. For example, article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides that "[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture". Similarly, in response to the practice of some States, the Human Rights Committee has stated that "[t]he prohibitions against the taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law".

Most rights, however, are not absolute in character. States can limit the exercise of these rights for valid reasons, including the needs of countering terrorism, as long as they respect a number of conditions.

In the case of some rights, the conditions for legitimate limitations are spelled out in the treaty provisions enshrining the right. Examples are the rights to freedom of expression, freedom of association, freedom of assembly and freedom of movement, and the requirement of publicity of court hearings. These rights are accompanied by various grounds, such as national security or public order, as well as conditions to be met in order for them to be legitimately limited. Notably, the restrictions provided for in the text, such as in articles 18(3) and 19(3) of the International Covenant on Civil and Political Rights (ICCPR), exist and may be relied upon independently of any declaration of a state of emergency. Indeed, even in times of public emergencies as understood in article 4 ICCPR explained below, States may elect to rely upon these restrictions instead of seeking derogations.

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