Absolute rights
Public sector guidance sheet
| Article | Description |
|---|---|
| Article 7 ICCPR | Freedom from torture and other cruel, inhuman or degrading treatment or punishment |
| Articles 8(1) & 8(2) ICCPR | Freedom from slavery and servitude |
| Article 11 ICCPR | Freedom from imprisonment for inability to fulfil a contractual obligation |
| Article 15 ICCPR | Prohibition against the retrospective operation of criminal laws |
| Article 16 ICCPR | Right to recognition before the law |
What are absolute rights?
International human rights law recognises that few rights are absolute and reasonable limits may be placed on most rights and freedoms. Absolute rights, however, are distinguishable from non-absolute rights: see list in the box above.
Absolute rights cannot be limited for any reason. No circumstance justifies a qualification or limitation of absolute rights. Absolute rights cannot be suspended or restricted, even during a declared state of emergency.
What are non-derogable rights?
Rights may also be characterised as derogable or non-derogable. Article 4 of the International Covenant on Civil and Political Rights (ICCPR) provides for a derogation power, which allows governments to temporarily suspend the application of some rights in the exceptional circumstance of a 'state of emergency' and subject to certain conditions, including official notification. Recourse to the derogations regime is rare. To date, Australia has not exercised its derogation power under Article 4 of the ICCPR.
Certain rights, however, are non-derogable, that is, they cannot be suspended even in a state of emergency. Article 4(2) of the ICCPR provides that no derogation is permitted for:
- right to life (art 6)
- freedom from torture or cruel, inhuman and degrading treatment or punishment; and freedom from medical or scientific experimentation without consent (art 7)
- freedom from slavery and servitude (arts 8(1) and (2))
- freedom from imprisonment for inability to fulfil a contractual obligation (art 11)
- prohibition against the retrospective operation of criminal laws (art 15)
- right to recognition before the law (art 16)
- freedom of thought, conscience and religion (art 18).
In addition, the Human Rights Committee has identified other ICCPR rights that it considers cannot be made subject to lawful derogation under article 4 of the ICCPR. For further information see UN Human Rights Committee General Comment No 29.
What is the distinction between absolute rights and non-derogable rights?
Non-derogable rights may be either absolute or non-absolute. While non-derogable rights cannot be suspended, some non-derogable rights provide for limitations in their ordinary application. For example, the right to freedom of religion in article 18 of the ICCPR is non-derogable under article 4(2) but may be subject to limitations in accordance with article 18(3). Article 6 of the ICCPR, which protects the right to life, is another example of a non-derogable right. This right, however, is expressed in part as freedom from 'arbitrary' deprivation of life. The use of the term 'arbitrary' indicates that circumstances may justify the taking of life, where necessary, reasonable and proportionate.
Where can I find assistance?
If you have specific questions about this Information Sheet, please contact the International Human Rights and Anti-Discrimination Branch at humanrights@ag.gov.au or 02 6141 6666.
Human Rights Committee, General Comment 29: States of Emergency (Article 4), (2001), [7].