September 2014 - At the Human Rights Council’s twenty seventh session. Unlike certain other provisions of the Covenant, article 17 does not include an explicit limitations clause. Guidance on the meaning of the qualifying words “arbitrary or unlawful” nonetheless can be drawn from the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights;1 the practice of the Human Rights Committee as reflected in its general comments, including Nos. 16, 27, 29, 34, and 31, findings on individual communications2 and concluding observations;3 regional and national case law;4 and the views of independent experts.5 In its general comment No. 31 on the nature of the general legal obligation on States parties to the Covenant, for example, the Human Rights Committee provides that States parties must refrain from violation of the rights recognized by the Covenant, and that “any restrictions on any of [those] rights must be permissible under the relevant provisions of the Covenant. Where such restrictions are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights.”6 The Committee further underscored that “in no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.”
- 1. See E/CN.4/1985/4, annex.
- 2. For example, communication No. 903/1999, 2004, Van Hulst v. The Netherlands.
- 3. CCPR /C/USA/CO/4.
- 4. For example, European Court of Human Rights, Uzun v. Germany, 2 September 2010, and Weber and Soravia v. Germany, para. 4; and InterAmerican Court of Human Rights, Escher v. Brazil, Judgment, 20 November 2009.
- 5. See A/HRC/13/37 and A/HRC/23/40. See also I nternational Principles on the Application of Human Rights to Communications Surveillance, available from https://en.necessaryandproportionate.org/text.
- 6. CCPR/C/21/Rev.1/Add. 13, para. 6.