the essence of the proportionality test

Generally, the proportionality test has two internal functions for the Strasbourg judges: (1) strike fair balance between/among the competing interests; (2) testing on the reasonableness and appropriateness between the measures employed and aim pursued. In the first category, the primary task of the Court is to protect the scope of “essence” of the Convention rights from the interference of collective goods relying on the interest-based rights theory. Beyond this scope, the Court would have to balance the interests explicitly incorporated into the Convention rights as well as the external collective goods claimed by the state authorities.

What are derogations to human rights treaties?

States have a right to derogate from certain obligations in order to deal with public emergencies. When a state finds itself in a state of emergency, some civil-political human rights may be temporarily restricted (“derogation”, Article 4, ICCPR). However, a state of emergency always has to be officially declared and accounted for, and has to be limited in time. Some human rights like the prohibition of torture cannot be derogated under any circumstances. All other human rights treaties do not allow the temporary derogation of particular rights in a state of emergency.

What are reservations, declarations and denunciations of human rights treaties?

A reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that state. A reservation enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply. Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to. Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made.

Denunciations, if a treaty explicitly permits it, as does for example article 52 of the International Convention on Children Rights. However, the International Covenant on Civil and Political Rights (ICCPR), its Second Optional Protocol, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of all Forms of Discrimination against Women and the International Convention Disappearance do not permit a denunciation of the treaty. Regarding the ICCPR, this was confirmed by the Human Rights Committee in its General Comment No. 26 on the continuity of obligations from 1997. Before, the committee had already declined North Korea’s denunciation and Jamaica’s denunciation from the Second Optional Protocol to the ICCPR.

Which human rights system allows actio popularis application?

Actio pupolaris presents in itself a collective complaint procedure. It is possible to be done under European Social Charter through the Committee of Social Rights as well as under Inter-American and African regional human rights systems.

Under the European Social Charter, because of their collective nature, complaints may only raise questions concerning non-compliance of a State’s law or practice with one of the provisions of the Charter. Individual situations may not be submitted. In the light of this, complaints may be lodged without domestic remedies having been exhausted and without the claimant organisation necessarily being a victim of the relevant violation.

positive and negative human rights obligations of states

Positive obligations in human rights law denote a State's obligation to engage in an activity to secure the effective enjoyment of a fundamental right, as opposed to the classical negative obligation to merely abstain from human rights violations.

Classical human rights, such as the right to life or freedom of expression, are formulated or understood as prohibitions for the State to act in a way that would violate these rights. Thus, they would imply an obligation for the State not to kill, or an obligation for the State not to impose press censorship. Modern or social rights, on the other hand, imply an obligation for the State to become active, such as to secure individuals' rights to education or employment by building schools and maintaining a healthy economy. Such social rights are generally more difficult to enforce.

Positive obligations transpose the concept of State obligations to become active into the field of classical human rights. Thus, in order to secure an individual's right to family life, the State may not only be obliged to refrain from interference therein, but positively to facilitate for example family reunions or parents' access to their children.

The most prominent field of application of positive obligations is Article 8 of the European Convention on Human Rights.

the negative obligations, which essentially require states not to interfere in the exercise of rights.

positive and negative human rights

 Negative and positive rights are rights that respectively oblige either action (positive rights) or inaction (negative rights). These obligations may be of either a legal or moral character. The notion of positive and negative rights may also be applied to liberty rights.

Rights considered negative rights may include civil and political rights such as freedom of speech, life, private property, freedom from violent crime, freedom of religion, habeas corpus, a fair trial, freedom from slavery.

Rights considered positive rights, may include other civil and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as food, housing, public education, employment, national security, military, health care, social security, internet access, and a minimum standard of living. In the "three generations" account of human rights, negative rights are often associated with the first generation of rights, while positive rights are associated with the second and third generations.

non-derogable and qualified human rights.

Non-derogable rights are those rights which are prescribed to every individual by core Human Rights documents and can’t be taken away. Unconditional.

List of Non-Derogable Rights and Freedoms

under Article 4 of the International Covenant on Civil and Political Rights

· Prohibitions of genocide, slavery, and racial discrimination

· Right to: life, freedom from torture & inhumane treatment, fair trial, freedom of conscience, thought and religion