Introduction to Human Rights Week 6: the limits of Human Rights II. Preliminary questions Before examining the limits of Human Rights, a court must ask itself a preliminary question: is there one or more Human Rights governing the issue? In other words, before examining if a Human Right might have been violated, we must ask ourselves if we are within the scope of application of a Human Right. If no Human Right is concerned by the situation in question, a violation is obviously not possible. As far as the scope of application of Human Rights is concerned, we must distinguish the personal scope of application from the substantive scope of application. Human Rights' personal scope of application concerns the issue of ownership. Is the person who invokes Human Rights a bearer of these rights? We know that Human Rights aim at protecting human beings. They are therefore meant to apply to everyone. For this reason, the provisions of general treaties are generally worded as protecting everyone. Alternatively, the provision stipulates that no one shall be subjected to a certain treatment. These wordings aim at highlighting that these rights belong to all human beings, independently of nationality or other conditions. However, some exceptions exist. Some special treaties are only devoted to some categories of people. For example, the Convention on the Rights of the Child is only devoted to people who are under 18 years old. The Convention on the Elimination of All Forms of Discrimination Against Women, the CEDAW, is only devoted to females. In general treaties, such as in the ICCPR, political rights only belong to citizens of the State. While the personal scope of application refers to the ownership of the rights, the substantive scope of application refers to the content of Human Rights. Each Human Right has a specific content which confers specific prerogatives to the rights holder. As already mentioned, the consequences are that States have specific duties. For each of the three cases, we need to examine if Human Rights instruments contain rights which are relevant for the case in question. Let us now examine the personal and substantive scope of application of Human Rights in our three cases. Let us start with the first case. This case concerns the detention of suspected terrorists. In this case, we are looking for a Human Right protecting personal freedom. More precisely, a Human Right applying in a situation in which someone is deprived of his liberty. The European Convention on Human Rights contains a clause governing deprivation of liberty. It is Article 5 of the Convention. Article 5 positively states that: "Everyone has the right to liberty and security." The same provision negatively states that: "No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law." These provisions seem to govern the situation of the individuals in our case. We recall that they are imprisoned for an indefinite period because they are suspected terrorists. We can therefore consider that the condition of the substantive scope of application is met. As far for the personal scope of application, Article 5 of the ECHR is formulated as belonging to everyone. So, they also belong to suspected terrorists. The condition of the personal scope of application is therefore also met. How about the scope of application in our second case; the case concerning the Islamophobic poster? The individual was sentenced for displaying this poster. We are therefore looking for a right governing communication. A provision protecting freedom of speech exists in the ECHR. Article 10 of the ECHR stipulates that "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Insofar as a poster is a way of communicating ideas, we can start by assuming that Article 10 applies to our second practical case. There is no issue either regarding the personal scope of application. Indeed, the provision stipulates again that the right belongs to everyone. Let us now have a look at the third case: the one concerning the threat of ill-treatment toward a person suspected of kidnapping. In our third case, we are looking for a right protecting people from ill-treatments. If we have a look at the European Convention on Human Rights, the most relevant provision seems to be Article 3. It stipulates what follows: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Again, the personal scope of application is not an issue. This provision protects all human beings, included a suspected kidnapper. How about the substantive scope of application? Can the threat of ill-treatment be described as torture or as inhuman or degrading treatment? As my colleague Michel Hottelier already told you, Human Rights are often formulated in a concise and general way. In order to know their precise content, we need to have a look at the case law. In the Gäfgen case, the European Court of Human Rights confirmed that Article 3 of the Convention applies to the threat of ill-treatment. Indeed, the prohibition of torture, degrading treatment and punishment does not only aim at protecting physical integrity. These provisions also protect mental integrity. In other words, mental suffering generated, in this case, by the threat of ill-treatment, falls in the substantive scope of application of Article 3 of the Convention. To sum up, we examined, in the three cases, whether the issue falls into the personal and substantive scopes of application of a Human Right. If we had come to a negative conclusion, there would logically be no violation. Our analysis would have ended there. Since we noticed that the three cases fall within the personal and substantive scopes of application of a Human Right, our analysis is not over. It is now that the question of limits of Human Rights becomes relevant. We are going to approach three types of limits thanks to the practical cases: derogation, abuse of rights, and restriction. Derogation is a type of limit applied in exceptional situations, essentially in times of crisis. An abuse of rights clause enshrines a type of limit which can apply anytime: in so-called normal times and in times of crisis. its aim is essentially to prevent and to sanction abuse of law. In practice, it plays a minor role. Restriction is also a limit that can apply anytime. However, unlike derogation, restrictions have an eminent practical importance: Their aim is to manage to reconcile Human Rights - especially liberties - with private or collective competing interests. Let us have a look at these three types of limits based on our practical cases. In the next video, we will familiarize ourselves with derogations by discussing the first practical case with an external speaker.