Through a glass darkly or mirror clear? : study of the general restrictions to human rights

Abstract

This thesis analyses the general restrictions to the exercise of human rights in three parts; dealing respectively with the limits of individual rights and the aim and specificity of general restrictions, states of emergency, and abuses of rights. It analyses the distinctive position of human rights norms in the general architecture of the international system and reconstructs the concept of individual rights along those lines. It, then, compares the different means by which states can limit their obligations under international law. It highlights the need to regard these suspiciously and not to allow them, whenever it can be prevented. The main claim is that, in view of the distinctiveness of human rights treaties, only restrictions aimed at ensuring a better protection and more stringent respect of these rights should be admissible. It argues that only the general protective clauses allowing limitations in states of emergency and prohibiting abuses of rights fulfil this purpose. In this regard, it singles out the latter general clause as the main guarantee on which rest the different conventions, as well as the only justifiable limit to recognised rights. Besides, it defends that even these dispositions should be strictly construed, in order to respect both their protective nature and the wording of the international treaties in which they are inserted. For this, they need to satisfy a number of conditions related to the exceptional measures’ trigger and the content and extent of the restrictions. Different types of guarantees must also be provided. Finally, it further studies the corollary question of the horizontal application of human rights provisions in interpersonal relations.