Content uploaded by Ana Zdravkovic
Author content
All content in this area was uploaded by Ana Zdravkovic on Apr 02, 2024
Content may be subject to copyright.
743
10.56461/ZR_23. SDCP.34
SOMEREFLECTIONSONTHENON–DEROGABLE
CHARACTEROFFREEDOMOFTHOUGHT,CONSCIOUS
ANDRELIGIONANDTHECONCEPT
OFABSOLUTEHUMANRIGHTS
Summary
Certain human rights are considered to be of an absolute nature
because the interests they protect reflect the core values of human society.
For many scholars, the outstanding importance of absolute rights is epito-
mised in their non–derogability, which is taken to be the main formal crite-
rion for their delineation from other human rights. However, there are also
views that non–derogability is not necessarily a manifestation of the funda-
mental importance of a right but that it can also ensue from its other charac-
teristics. An illustration of this is typically found in the freedom of thought,
conscious and religion, as laid down in Article 18 of the ICCPR. In the paper,
the authors analyse possible reasons that may justify the non–derogable sta-
tus of Article 18, as a way to gain further insights in the relationship between
non–derogability and the concept of absolute rights. The outcome of the
analysis provides arguments in favour of the thesis that non–derogability is
closely related to the fundamental importance of a right and, as such, should
remain among the key criteria for definition of absolute rights.
* Research Fellow, Institute of Comparative Law (Belgrade, Serbia), m.matijevic@iup.
rs; ORCID: 0000–0002–2459–9201 This paper is a result of the research conducted by
the Institute of Comparative Law financed by the Ministry of Science, Technological De-
velopment and Innovation of the Republic of Serbia under the Contract on realisation and
financing of scientific research of SRO in 2023 registered under no. 451–03–47/2023–
01/200049.
** Research Assistant at the Institute of Comparative Law (Belgrade, Serbia) and
Researcher of the Center for Legal Fundamentals at the Faculty of Law of the Univer-
sity of Belgrade, a.zdravkovic@iup.rs; ORCID: 0000–0001–7514–8892 The part of
the research conducted by A. M. Zdravković was part of the Horizon Twinning project
“Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177).
ALF is coordinated by the Faculty of Law of the University of Belgrade (coordinators
Miodrag Jovanović and Bojan Spaić) in partnership with University of Genova (coor-
dinator Andrej Kristan), University of Lisbon (coordinator David Duarte), University
of Surrey (coordinator Hrafn Asgeirson). The project is financed by the European
Union.
САВРЕМЕНО ДРЖАВНО- ЦРКВЕНО ПРАВО
744
Keywords:absolute human rights, human rights restrictions, dero-
gations, fundamental importance, freedom of thought, conscious and reli-
gion, Article 18 ICCPR, Article 4 ICCPR.
1.Introduction
There are certain human rights which are regarded as having an
absolute nature for the outstanding importance of the interests safeguarded
by them. Their fundamental importance for preserving core values of our
societies, hence, is the main substantive criterion for their delineation from
other human rights.1 That criterion alone, as could be easily assumed, is
not enough for an operative definition, nor offers a unified view on which
rights should be regarded as absolute.
That means as well that no agreement on the formal attributes of
these rights exists. Given that they protect very important societal interests,
they are, as the very term implies, supposed to be absolutely protected.
In other words, it is only logical to expect that absolute rights should be
shielded from restrictions of which a state can avail itself vis––vis other
rights or considerations. That is the reason why some scholars tie their
property of absoluteness in the first place to their non–derogability and the
absence of the limitation clause.2 The derogation is an ultima ratio measure,
the type of human rights restrictions which is allowed only exceptionally, in
extraordinary circumstances. Since only a finite number of rights can never
be subject to derogation, scholars usually conclude that non–derogability is
closely related to the need to preserve fundamental interests.3 In that way,
1 The traces of hierarchy among the human rights norms can be found in the case law of
international judicial and quasi–judicial bodies. See, for instance, the Barcelona Traction
case of the International Court of Justice (Case Concerning the Barcelona Traction, Light
and Power Company, Limited (Belgium v. Spain), Judgment, ICJ Reports 1970, para. 34.)
On this and some other relevant ICJ case law see M. Reljanović, V. Ćorić, M. Matijević,
Međunarodni sud pravde I – organizacija, postupak, slučajevi, Institut za uporedno pravo,
2007. At the same time, the concept of absolute rights stands at odds to today’s dominant
view of human rights as an indivisible, interdependent and interrelated system of norms.
More on this contemporary cannon of human rights: D. Whelan, Indivisible Human
Rights: A History, University of Pennsylvania Press, 2010. For the empirical analysis of
interdependency and interrelatedness of human rights see: L. Minkler, S. Sweeney, “On
the Indivisibility and Interdependence of Basic Rights in Developing Countries”, Human
Rights Quarterly 33/2, 2011, 351–96; J. Essink at al., “The Indivisibility of Human Rights:
An Empirical Analysis”, Human Rights Law Review 23/3, 2023, 1–18.
2 See Chapter 4.
3 The non–derogable human rights play an important role in the constitutionalisation of
international law, which is commonly understood as a process of creation of the unified
and hierarchically organized international system of norms representing restrictions on
745
non–derogability becomes a proxy for absolute rights and an essential ele-
ment of their definition, and should the right also be formulated in a way
that leaves no possibility for its limitations, its absolute nature can hardly
be disputed.
Yet, to use non–derogability trait as a criterion for defining absolute
human rights is not without obstacles since not all rights typically understood
as absolute are explicitly non–derogable, while the absolute nature of some
non–derogable rights is questioned in both theory and practice. Moreover,
different human rights instruments include different lists of non–derogable
rights. The paradigmatic example of the latter case is the right to freedom
of thought, conscious and religion or belief.4 This right is derogable in the
European Convention on Human Rights (Art. 9)5 and non–derogable in the
International Covenant on Civil and Political Rights (Art. 18)6. Article 18 is
also an interesting case as it is the only one, among the explicitly non–dero-
gable ICCPR rights, which includes a limitation clause.
There is also another, less analysed but for this inquiry particularly
important segment of a discussion about the non–derogable character of
freedom of thought, conscious and religion. It is not rare that non–deroga-
bility of Article 18 is explained by some practical reasons and not by the
fundamental importance of the interest it protects. Such view, which we
could call the “factual impossibility” argument, explains the non–deroga-
ble character of Article 18 through the specific nature of this right. The
freedom of thought, conscious and religion is to be primarily realised in the
inner world of an individual for the reasons of which, according to the pro-
ponents of this view, its violation is factually impossible, or at least beyond
our epistemological reach. The views of the UN Human Rights Committee7
on that matter and en general on the nature of absolute rights leave as well
the arbitrary exercise of power by states and other relevant international actors (as de-
fined in : E. De Wet, “The Constitutionalization of Public International Law”, in: The
Oxford Handbook of Comparative Constitutional Law (eds. M. Rosenfeld, A. Sajó), Ox-
ford University Press, 2012, 1213; For a different view, where constitutionalisation is seen
as a response to the erosion of power of states in the domestic and international spheres
see M. V. Matijević, ”Some Critical Reflections on the Broad Human Rights Constitu-
tionalisation”, Constitutio Lex Superioris: Sećanja na profesora Pavla Nikolića (ur. Oli-
ver Nikolić, Vladimir Čolović), Institut za uporedno pravo, 2021, 155–172.
4 Further “freedom of thought, conscious and religion”.
5 Further “ECHR”. Council of Europe, European Convention for the Protection of
Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4
November 1950, ETS 5.
6 Further “ICCPR”. UN General Assembly, International Covenant on Civil and
Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, 171.
7 Further “Human Rights Committee” or “HRC”.
САВРЕМЕНО ДРЖАВНО- ЦРКВЕНО ПРАВО
746
some space for a question whether non–derogability of Article 18 ICCPR
ensues from the fundamental importance of the interest it protects.
The present research examines the reasons for non–derogability of
Article 18 by analysing the “factual impossibility” argument in the context of
certain Human Rights Committee statements on the topic. The relevance of
the analysis follows from the fact that a closer understanding of the reasons
for the explicitly non–derogable nature of Article 18, that is of the freedom
of thought, conscious and religion as laid down in the ICCPR, could help us
discern to what extent non–derogability determines the concept of absolute
rights. The paper studies the relationship between fundamental interests,
non–derogability and the concept of absolute rights in the scholarly works
and in the comments of the Human Rights Committee and other relevant
UN treaty bodies. As such, its scope remains confined to the examination of
how the matter is regulated under the ICCPR, with only sporadic references
to the position of the freedom within the other international instruments.8
The structure of the paper reflects the intention to preserve the clar-
ity of the analysis despite the conceptual complexity of its subject matter.
For that reason, the first two chapters are dedicated to setting the stage for
the ensuing analysis. In the first chapter, a brief overview of the content and
scope of freedom of thought, conscious and religion, as laid down in the
ICCPR, is provided. The second chapter brings terminological and concep-
tual clarifications of the types of human rights restrictions relevant for the
analysis. The third chapter represents a short glance at the existing attempts
to define absolute rights. The main analysis takes place in the fourth chap-
ter, where the reasons for the non–derogable character of Article 18 and
their relevance for the concept of absolute rights are investigated. In the
conclusion we sum up the results of the inquiry.
2.ABriefOverviewofArticle18oftheICCPR
Freedom of thought, conscience and religion is guaranteed under
Article 18 of the ICCPR. Although often referred to as “religious freedom”
its scope is not limited to religious matters. Article 18 encompasses freedom
of thought en general, thus also protecting political, scientific and philo-
sophical thoughts and beliefs.9 As noted by Kevin Boyle and Sangeeta Shah,
8 For a comparison of the normative status, content and scope of the right to freedom
of thought, conscious and religion under the ICCPR and the ECHR see P. M. Taylor,
Freedom of Religion: UN and European Human Rights Law and Practice, Cambridge
University Press, 2005.
9 See, for instance, Kang v. Republic of Korea, a case in which the distribution of com-
munist leaflets was qualified by the Human Rights Committee as the manifestation of
747
the mere usage of the words “religion or belief” shows the drafter’s intention
to protect all beliefs and not just those of religious character.10 Apart from the
right to adopt and change theistic, non–theistic, and atheistic beliefs, Article
18 also gu ar ante es the rig ht not to pr ofe ss an y relig ion or bel ief , as wel l as
the right to engage in critical thinking about a religion or belief.11
Article 18 does not protect religion or belief itself but the right of
an individual to profess a religion or belief of his or her choice and live in
accordance with the freely adopted convictions. Such a focus on “believers
rather than beliefs” is not only a logical consequence of the notorious fact
that the right–holder of a human right is a human being,12 but also a neces-
sity given the number of religions and beliefs existing today and the some-
times irreconcilable differences between them.13 The individual, as tacitly
expressed by the Special Rapporteur on Freedom of Religion or Belief, is
“the only common denominator identifiable within such vast diversity” of
religions or beliefs.14 For that reason, the interpretations of Article 18 which
confine its scope to traditional religions or religions and beliefs with institu-
tional characteristics or practices analogous to those of traditional religions,
betray its meaning.15
a belief in the sense of Art. 18, para. 1. Human Rights Committee, Yong–Joo Kang v.
Republic of Korea, adopted on 16 July 2003, CCPR/C/78/D/878/1999.
10 K. Boyle, S. Shah, “Thought, Expression, Association, and Assembly”, in: International
Human Rights Law (eds. Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran), Oxford
University Press, 220.
11 Human Rights Committee, CCPR General Comment No. 22: The right to freedom of
thought, conscience and religion (Art. 18), CCPR/C/21/Rev.1/Add.4, 30 July 1993, para. 2.
See, also the 3rd commitment under the Beirut Declaration on Faith for Rights, which calls
for the creation of a social ambient in which “the critical thinking and debate on religious
matters should not only be tolerated but rather encouraged as a requirement for enlight-
ened religious interpretations in a globalized world composed of increasingly multi–cul-
tural and multi–religious societies that are constantly facing evolving challenges”. Special
Rapporteur on Freedom of Religion or Belief, Report on Freedom of Religion and Belief,
Annex II:18 commitments on “Faith for Rights”, of 5 March 2019, A/HRC/40/58, para. III.
12 Human beings as rights holders may exercise these freedoms as individuals and in
community with others.
13 Special Rapporteur on Freedom of Religion or Belief, Interim Report: Elimination of
all forms of religious intolerance, 2 August 2016, A/71/269, para. 11.
14 Ibid., para. 12.
15 Any discrimination, especially towards adherents to other religions or the non–believ-
ers in the states with an official religion or a traditional religion that assembles most of the
population, is inconsistent with Article 18. In that sense, the HRC places strong emphases
on safeguarding the freedom of religious minorities and sees Article 18 as pivotal in that
regard. HRC, General Comment No. 22, para. 9. In relation to this, Heiner Bielefeldt ob-
serves that this freedom often remains confined to a firmly fixed list of religious options,
for the reason of which members of less known, new or alternative religious communities
САВРЕМЕНО ДРЖАВНО- ЦРКВЕНО ПРАВО
748
This is a multifaceted right, with three of its distinct realms explicitly
regulated in the text of Article 18. Freedom of thought, conscience and reli-
gion represents the so–called forum internum realm of the right, referring to
“person’s inner sanctum (mind) where mental faculties are developed, exer-
cised and defined”.16 As an expression of the special protection assigned to the
forum internum dimension of the right, Article 18, in its paragraph 2, prohibits
the use of coercion aimed at impairing one’s freedom to have or to adopt a reli-
gion or belief of own choice. The freedom to manifest one’s religion or belief,
individually or in community with others, and in public or private, in worship,
observance, practice and teaching, represents the forum externum aspect of
the right.17 The last paragraph of Article 18 (para. 4) protects the right to inter-
generational transmission of religion or belief by placing a duty on the State
Parties to respect the liberty of parents to ensure that the religious and moral
education of their children is in conformity with their own convictions.
A delineation of the forum internum and forum externum realms of
freedom of thought, conscience and religion is important, as only the latter
may be subject to restrictions. Article 18 is in its entirety exempted from
derogations, i.e., cannot be subject to the measures by which the State Par-
ties can temporarily restrict the enjoyment of the rights guaranteed under
the ICCPR in times of public emergency (Art. 4, para. 2). However, only
its forum internum aspect enjoys unlimited protection. As noted, the sec-
ond paragraph of Article 18 lays down an unqualified protection against
coercion that would impair freedom to have or to adopt a religion or belief
of one’s choice. Importantly, its scope has been interpreted by the Human
Rights Committee as to also include the freedom from being forced to reveal
own thoughts or adherence to a religion or belief.18 The protection against
are usually excluded or discriminated against. H. Bielefeldt, “Freedom of Religion or
Belief – A Human Right under Pressure”, Oxford Journal of Law and Religion, 2012, 20.
16 Special Rapporteur on Freedom of Religion or Belief, Report on freedom of thought,
5 October 2021, A/76/380, para. 2.
17 The 1981 Declaration on the Elimination of all Forms of Intolerance and of Discrim-
ination Based on Religion or Belief in its Article 6 provides a detailed account of differ-
ent forms of manifestation of religion or belief. UN General Assembly, Declaration on
the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief, 25 November 1981, A/RES/36/55.
18 HRC, General Comment No. 22, para. 3. However, while examining state reports, the
relevant UN human rights bodies have dealt with the issue of compulsory religious oaths
and the religious affiliation stated in the identity card mostly in relation to the protection
against discrimination in the context of religious freedoms. See, for instance, Report
of the Human Rights Committee, 7 October 1993, A/48/40 (Part I), para. 607; Human
Rights Committee Special Rapporteur, Report on the Implementation of the Declaration
on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion
749
coercion encompasses both its direct and indirect forms. The existing case
law shows that the latter often materialises as a limited access to important
public goods, such as education, medical care or employment, or limitations
on the enjoyment of family law rights, such as custody of children.19 In its
General Comment No. 22, the Human Rights Committee adopted a broader
interpretation of the absolute protection guarantees contained in Article 18,
to include the liberty of parents to ensure that their children receive a reli-
gious and moral education in conformity with their own convictions.20
On the other hand, the forum externum dimension, the freedom
to manifest one’s religion or belief as laid down in Art. 18, para. 3, may
be subject to limitations that are prescribed by law and are necessary to
protect public safety, order, health, or morals, or the fundamental rights and
freedoms of others. That balancing exercise, as it will be explained in the
next chapter, can be undertaken both in time of emergency and in regular
times, and it concerns the type of human rights restrictions which is clearly
distinct from derogations.
3.Non–derogableRights
Before proceeding with the analysis, we should first point out the pro-
nounced terminological inconsistency characterising the main notions which
are used for different types of restrictions placed by states on the enjoyment
of human rights. A good example of this are the terms “restrictions” and
“limitations”. They are used interchangeably throughout the ICCPR21, which
or Belief, 6 January 1993, E/CN.4/1993/62, para. 81; Human Rights Committee Special
Rapporteur, Report on the Implementation of the Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief, 7 November
1996, A/51/542/Add.1, para. 136. On the European Court of Human Rights approach to
these issues see: ECtHR, Alexandridis v Greece, App. No. 19516/06, Judgment of 21
February 2008; ECtHR, Sinan Isik v Turkey, App. No. 21924/05, Judgment of 2 February
2010; See also K. Boyle, S. Shah, 223.
19 HRC, General Comment No. 22, para. 5.
20 HRC, General Comment No. 22, para. 8. In that sense, the HRC underlined that public
education which includes instructions in a particular religion or belief is inconsistent with
Article 18, except if provision is made for non–discriminatory exemptions or alternatives
that would accommodate the wishes of parents and guardians (See, HRC, General Com-
ment No. 22, para. 6).
21 See, for instance, Articles 11, 19, 21 as compared to Article 18. The Siracusa Principles
on the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights reflect this, for the reason of which its text contains a note which points to
the use of the term “limitations” in a way that includes the term “restrictions” as used in the
Covenant. American Association for the International Commission of Jurists, The Siracusa
Principles on the Limitation and Derogation Provisions in the International Covenant on
Civil and Political Rights, 28 September 1984, U.N. Doc. E/CN.4/1985/4, footnote.
САВРЕМЕНО ДРЖАВНО- ЦРКВЕНО ПРАВО
750
renders rather difficult their definition per genus proximum et differentiam
specificam. The same problem is also reflected in the academic literature,22
which is why certain terminological clarifications must be made.
In the paper, the term “human rights restrictions” (or “restrictions”)
is consistently used as a general notion which refers to the class of legal
mechanisms by which the state can lawfully interfere with an individual’s
enjoyment of human rights. The term “limitations” here has a narrower
meaning and denotes a distinct type of restrictions, i.e., a specific legal
mechanism through which, under certain conditions, an individual’s enjoy-
ment of human rights can be limited. Limitations are enabled by the so–
called “limitation clause” that may be included in a provision guarantee-
ing a certain right. When such a limitation clause exists, governments are
allowed to partially limit the enjoyment of a right, but only in the pursuit of
a therein listed legitimate aim, such as the protection of national security,
public order, public health and morals, and rights and freedoms of others,
insofar as necessary in a democratic society.23
Another type of human rights restrictions is derogation. Derogation
of a human right or of one of its aspects “is its complete or partial elimi-
nation as an international obligation”, of which a state can avail itself only
during public emergency.24 To say that a certain right is derogated is to say
that it is suspended for a limited period of time because a state, due to a
public emergency, becomes unable to guarantee all the conditions neces-
sary for the realisation of that right. In this situation, the non–compliance,
which would normally amount to a violation, is not considered as such. In
other words, the derogation mechanism enables states − provided they meet
the prescribed requirements − to officially proclaim that they cannot fulfil
some of their human rights obligations and in that way gain some space for
a manoeuvre in order to overcome as soon as possible the state of emer-
gency. An important difference between the derogation mechanism and
limitations is that the latter can be applied during both regular and irregular
times, while derogations are strictly related to public emergences.
Not only were the drafters of the ICCPR aware that sometimes, in
extraordinary circumstances, the State Parties might need to depart from
22 See, for instance: J. M. Ross, “Limitations on Human Rights in International Law:
Their Relevance to the Canadian Charter of Rights and Freedoms”, Human Rights
Quarterly 6/2, 1984, 180–223; O. M. Garibaldi, “General Limitations on Human Rights:
The Principle of Legality”, Harvard International Law Journal 17/3, 1976, 503–558.
23 For instance, such limitation clauses can be found in Art. 12, para. 3, Art. 18, para. 3,
Art. 19, para. 3 of the ICCPR.
24 D. McGoldrick, “The Interface Between Public Emergency Powers and International
Law”, International Journal of Constitutional Law 2/2, 2004, 383.
751
their treaty obligations, but they were also aware that this mechanism can
be misused. To prevent potential abuses and secure an adequate level of
legal certainty, the first paragraph of Article 4 lays down strict conditions
for a derogation to be lawful. There must be an officially proclaimed public
emergency which threatens the life of the nation, for instance, war, rebel-
lion, terrorist attack, or natural disaster. The derogating measures must be
undertaken only to the extent strictly required by the exigencies of the sit-
uation and must not be discriminatory or inconsistent with other interna-
tional obligations of the State Party in question.25 Article 4 also prescribes a
set of procedural conditions, which establish a duty to immediately inform
the UN Secretary–General about the provisions that will be derogated and
state relevant reasons for such measures, as well as to provide additional
communication on the date of termination of derogations.26
Certain rights are non–derogable. As an exception to the general
rule established in para. 1, the second paragraph of Article 4 provides a
list of the ICCPR rights which cannot be suspended even during a state of
emergency.27 The list is similar but not identical to the lists of non–derogable
25 Art. 4, para. 1 of the ICCPR.
26 For the view that every notification on derogations must contain explanation and
reasoning for imposing a particular emergency measure, see A. M. Zdravković, “The
Affair of “State of Emergency” – Was 70 Years of European Convention on Human
Rights Enough to Prepare Member States for COVID–19 Crisis?”, Iustunianus Primus
Law Review 2020, 9–11. For a critical evaluation of the existing system of human rights
treaty derogations see: L. Helfer, “Rethinking Derogations from Human Rights Trea-
ties”, American Journal of International Law 115/1, 2021, 20–40.
27 According to ICCPR Article 4, non–derogable are the right to life, freedom from
torture, cruel, inhuman, degrading treatment or punishment, freedom from slavery or
servitude, the right not to be imprisoned for contractual debt, freedom from retroactive
criminal punishment, right to recognition as a person before the law and freedom of
thought, conscience, and religion, while non–derogability of the prohibition of the death
penalty is prescribed under the Second Optional Protocol to the ICCPR (UN General
Assembly, Second Optional Protocol to the International Covenant on Civil and Political
Rights, Aiming at the Abolition of the Death Penalty, 15 December 1989, A/RES/44/128).
However, in the General Comment No. 29, the HRC stated that the given list should not
be seen exhaustive and interpreted it to include several other, not explicitly mentioned
segments of the rights guaranteed by the ICCPR. According to the HRC, illustrative ex-
amples of the provisions that cannot be subject to lawful derogation are: the right of all
persons deprived of their liberty to be treated with humanity and with respect for the in-
herent dignity of the human person (Art. 10); the prohibitions against taking of hostages,
abductions or unacknowledged detention; elements of the international protection of the
rights of persons belonging to minorities; the prohibition of the deportation or forcible
transfer of population without grounds permitted under international law, in the form
of forced displacement by expulsion or other coercive means from the area in which the
persons concerned are lawfully present (which constitutes a crime against humanity);
752
rights contained in the derogation clauses of other human rights instru-
ments, with each later drafted treaty expanding the list of non–derogable
rights. Freedom of thought, conscience and religion is qualified as non–
derogable in the ICCPR, whereas under the ECHR, adopted 16 years ear-
lier, it does not enjoy the same status.28 Be that as it may, the practical
implications of this difference are rather limited since all Member States of
the ECHR are also State Parties to the ICCPR and must respect obligations
under both treaties. Given that those obligations which are more stringent
prevail, the states must respect the right to thought, conscience and reli-
gion as a non–derogable right. Since only three international human rights
treaties – the ICCPR, the ECHR and the American Convention on Human
Rights – contain derogation clauses, only a handful of human rights are
explicitly exempted from derogation.29
Non–derogability of some human rights is taken to be an important
characteristic of the contemporary system of international human rights
norms. Firstly, it is an element for determination of the norms of peremp-
tory character, given that only norms which are exempted from derogation
can become peremptory norms of general international law.30 The Inter-
national Law Commission sees in non–derogability the formal expres-
sion of their special status: “[t]he idea that peremptory norms of general
international law (jus cogens) are universally applicable, like that of their
provision requiring that any propaganda for war shall be prohibited by law, as well as
that any advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law (Art. 20); the obligation
to provide effective remedy for violations of the provisions of the Covenant (Art. 2, para.
3); provisions of the Covenant, including Article 4, relating to procedural safeguards and
guarantees; certain elements of the right to a fair trial that are explicitly guaranteed under
international humanitarian law during armed conflict, including that only a court of law
may try and convict a person for a criminal offence, the presumption of innocence and
the right to take proceedings before a court to enable the court to decide without delay on
the lawfulness of detention, in order to protect non–derogable rights. See HRC, General
Comment No. 29, paras. 13–15.
28 Article 15 of the ECHR.
29 Apart from Article 15 of the ECHR, a similar derogation mechanism is also found
in Article 27 of the American Convention on Human Rights (Organization of American
States, American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 No-
vember 1969). African Charter on Human and Peoples’ Rights is the only regional human
rights instrument which does not contain a derogation clause (Organization of African
Unity, African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981,
CAB/LEG/67/3 rev. 5, 21 I.L.M. 58).
30 As defined in Article 53 of the Vienna Convention on the Law of Treaties. United
Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty
Series, vol. 1155, 331.
Milica V. Matijević, Ana M. Zdravković
753
hierarchical superiority, flows from non–derogability”.31 Non–derogability
is, in that sense, seen as a direct consequence of the fundamental interest
that the right exempted from derogations protects.32 As such, it represents
an important element of the attempts to define absolute rights.
4.DefiningAbsoluteRights
A closer look at the derogation as a distinct type of human rights
restriction was needed for the ensuing analysis of the non–derogability of
Article 18 and its relevance for the definition of absolute rights. But, before
venturing into that complex inquiry, we need to gain at least a basic idea of
what the concept of absolute rights is about. As already observed, neither
theory nor practice has yet arrived at a commonly accepted definition of
absolute rights, even though the term is present in the academic literature
and the case–law of international and national courts.
On the international plane, the notion is often found in the decisions
of the European Court of Human Rights,33 as well as in the general comments
of the HRC, but it can also be identified in the jurisprudence of other inter-
national courts and quasi–judicial bodies.34 However, these bodies define it
rarely, if ever, and rather use it as a self–referential term. In other words,
they assign to the concept a certain meaning without giving an account of its
content and scope.35 As far as academia is concerned, the matter is not much
31 UN General Assembly, Report of the International Law Commission on its Seventy–
first session (29 April–7 June and 8 July–9 August 2019), A/74/10, 155.
32 R. Pisillo Mazzeschi, A. Viviani, “General Principles of International Law: From
Rules to Values?”, in: Global Justice, Human Rights and the Modernization of Interna-
tional Law (eds. R. Pisillo Mazzeschu, P. De Sena), 2018, Springer, 143.
33 This is primarily true with respect to Art. 3 of the ECHR. See, for instance, ECtHR,
Soering v. the United Kingdom, App. No. 14038/88, Judgment of 7 July 1989, para. 88;
ECtHR, Chahal v. the United Kingdom, App. No. 22414/93, Judgment of 15 November
1996, para. 79–80; ECtHR, Gäfgen v. Germany, App. No. 22978/05, Judgment of 1 June
2010, paras. 87, 107. As a matter of fact, on the official webpage of the Council of Europe
the differentiation between qualified and unqualified rights can be found within the cat-
egory “Definitions”. “Unqualified rights are rights which cannot be balanced against the
needs of other individuals or against any general public interest. They may be subject to
specific exceptions, e.g. the right not to be deprived of liberty, Article 5; or to none at all,
when they are called absolute rights, e.g. freedom from torture, Article 3.”, https://www.
coe.int/en/web/echr–toolkit/definitions 10. 6. 2023.
34 UN Committee against Torture, Report of the Committee against Torture on its
Forty–third session (2–20 November 2000) and on its Forty–fourth session (26 April–14
May 2010), Suppl. No. 44 (A/65/44), para. 17; ICTY, Final Report to the Prosecutor by
the Committee Established to Review the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia, 2000, paras. 26, 29.
35 For example, in the General Comment No. 36 on the right to life, the HRC simply
pointed out that this right is not absolute. Human Rights Committee, CCPR General
754
clearer since different authors in different way define or otherwise determine
the key elements of the concept of absolute rights.36 While analysing the
European Court of Human Rights reasoning with regards to Article 3 of the
ECHR, as the paradigmatic example of an absolute right, Natasa Mavroni-
cola identified three elements of the right’s absoluteness, namely that it does
not contain a limitation clause, that it is non–derogable, and that it applies
irrespective of one’s conduct, that is to say, even if the right–bearer was a
criminal or a terrorist.37 According to her, the main structural implication
of the absolute nature of a right is that the obligations it encompasses can-
not be lawfully displaced by the consequentialist concerns.38 For some other
authors, non–derogability represents the essential determinant of the absolute
nature of a right. According to Dinah Shelton and Patricia Roberts Harris, the
fact that non–derogable rights cannot be subject tosuspensions, reservations,
Comment No. 36 on Article 6: Right to life, CCPR/C/GC/36, 3 September 2019, para.
10.
36 For more on absolute rights see, for instance: M. Paunović, B. Krivokapić, I. Krstić,
Međunarodna ljudska prava, Pravni fakultet Univerziteta u Beogradu, 2014, 66; E. Klein,
“On Limits and Restrictions of Human Rights: A Systematic Attempt”, in: Strengthening
Human Rights Protections in Geneva, Israel, the West Bank and Beyond (eds. J. David et
al.), Cambridge University Press, 25; C. K. Wouters, “International Refugee and Human
Rights Law: Partners in Ensuring International Protection and Asylum”, in: Routledge
Handbook of International Human Rights Law (eds. S. Sheeran, Sir N. Rodley), Rout-
ledge, 2013, 234–235; A. M. Zdravković, „Pravo na život sagledano kroz prizmu apsolut-
nih ljudskih prava”, Pravni život 12/2019, 339–340.
37 Especially controversial in this regard is the ECtHR’s case Gäfgen v. Germany, App.
No. 22978/05, Judgment of 3 June 2010. Natasa Mavronicola, “What is an ‘Absolute
Right’? Deciphering Absoluteness in the Context of Article 3 of the European Convention
on Human Rights”, Human Rights Law Review 12/2012, 737.
38 Natasa Mavronicola, “Crime, Punishment and Article 3 ECHR: Puzzles and Prospects
of Applying an Absolute Right in a Penal Context”, Human Rights Law Review 15/2012,
724. The two opposed ethical theories – deontological and teleological theory – are particu-
larly important for theorizing absolute rights, since authors advocating for the existence of
absolute human rights accept absolutism, a categorical (or deontological) theory that con-
siders certain acts as intrinsically wrong, irrespective of their effects and, hence, those acts
must be avoided at all costs. The consequences of these acts for them have no ethical rele-
vance. (See D. McNaughton, “Deontological Ethics”, in: Concise Routledge Encyclopedia
of Philosophy (ed. Edward Craig), Routledge, 1999, 202; T. Nagel, “War and Massacre”, in
Consequentialism and its Critics (ed. Samuel Scheffler), Oxford University Press, 1988,
60). In contrast, the opponents of absolute human rights mostly derive their positions from
the consequentialist (or teleological) theory, which evaluates the morality of an action by
reference to its consequences. In that sense, they are willing to balance every right against
any consideration. Most of the criticism of deontology is based on its inflexibility, which
led to the conceptualization of a third approach, the so–called “threshold deontology”. This
approach argues that rules should always be obeyed unless there is an emergency situation,
in which one should revert to consequentialism. (See L. Alexander, M. Moore, “Deontolog-
ical Ethics”, Stanford Encyclopaedia of Philosophy, October 30, 2020.
Milica V. Matijević, Ana M. Zdravković
755
or denunciations, brings them close to being absolute in nature.39 Sara Joseph
notes that most of the absolute rights are non–derogable.40
Others perceive absolute rights as those that do not allow for any
limitations. For instance, Martin Sheinin takes the view that absolute rights
are a separate category from non–derogable rights, as some absolute rights
have not been explicitly exempted from derogations and, conversely, some
non–derogable rights may permit “exceptions” during normal times but do
not allow for an additional layer of exceptions through the introduction of der-
ogations during a state of emergency.41 In relation to this, he refers to General
Comment No. 29, especially its part pointing to Article 18 of the ICCPR as the
non–derogable provision that includes a limitations clause. Olivier De Schut-
ter highlights that absolute rights allow no limitations,42 whereas Kai Möller
sees them as those that cannot be subjected to the proportionality test.43
5.Non–derogabilityandAbsoluteHumanRights
In this chapter, we will examine the HRC’s view on the matter. We
will start our inquiry with General Comment No. 29, more specifically, its
39 D. Shelton, P. Roberts Harris, Report “Are There Differentiations Among Human
Rights? Jus Cogens, Core Human Rights, Obligations Erga Omnes and Non–derogabil-
ity”, UniDem Seminar The Status of International Treaties on Human Rights (Coimbra
(Portugal), 7–8 October 2005), 21.
40 S. Joseph, M. Castan, The International Covenant on Civil and Political Rights –
Cases, Materials and Political Rights, Oxford University Press, 2013, 30.
41 M. Sheinin, “Core Rights and Obligations”, in: The Oxford Handbook of International
Human Rights Law (ed. Dinah Shelton), Oxford University Press, 2013, 532.
42 Considering above–explained terminological inconsistences that pervade this field, the
exact meaning of various terms used by different authors can only be assumed. In that regard,
it is not entirely clear whether De Shutter uses the term “limitations” in the sense of “restric-
tions” as understood in this paper or as a narrow category granted by the limitation clause. O.
De Shutter, International Human Rights Law, Cambridge University Press, 2010, 257.
43 This opinion of Möller is indirectly deduced from his statement that “while it is true
that some rights are absolute, [...] most rights — including the rights to life, physical
integrity, privacy, property, freedom of religion, expression, assembly, and association
— can generally be limited in line with the proportionality test, at the core of which
is a balancing exercise where the right is balanced against a competing right or public
interest.”, K. Möller, The Global Model of Constitutional Rights, Oxford University
Press, 2012, 13. The most direct definition of absolute rights that he offered is “the
rights which must never be interfered with”, K. Möller, “The Right to Life Between Ab-
solute and Proportional Protection”, LSE Law, Society and Economy Working Papers
13/2010, 2. A similar determination of absolute rights is also found in A. Takahashi,
Yut a k a , “Proportionality”, in: The Oxford Handbook of International Human Rights
Law (e d. Dinah Shelt on), Oxford University Publishing 2013, 467. For the opposite
view see M. Borowski, “Absolute Rights and Proportionality”, German Yearbook of
International Law 56, 2013, 385–424.
756
parts in which the HRC interprets the exemption from derogation found in
Article 4, paragraph 2. There the HRC states that the given provision should
as well embrace elements of several other, not explicitly mentioned ICCPR
rights, and that the absolute nature of some of these rights “is justified by
their status as norms of general international law”.44 The given statement is
rather curious, hence, it deserves a short analysis.
To begin with, it is important to note that the HRC connects the
absoluteness of a right with its non–derogable character − by interpreting the
prohibition of derogation from Art. 4, para. 2, as also to apply to some other
rights because of their absolute nature − though it remains unclear whether
for the HRC the non–derogability of a right automatically leads to it being
characterised as absolute. A second, equally interesting point, is the HRC’s
reference to the notion of “general international law”. Given that there is no
agreement on the exact meaning of this notion,45 as confirmed by the Study
Group on Fragmentation of International Law established by the Interna-
tional Law Commission,46 the point of linking the absolute character of cer-
tain norms to their status of norms belonging to “general international law”
is unclear and raises several questions. Certainly, not all norms of general
international law can be considered absolute; hence, this cannot be the right
explanation. However, only a norm belonging to general international law
can become a peremptory norm of international law (jus cogens). According
to Article 53 of the Vienna Convention on the Law of Treaties, “a peremp-
tory norm of general international law is a norm accepted and recognized
by the international community of states as a whole as a norm from which
no derogation is permitted and which can be modified only by a subsequent
44 For the sake of clarity and for the ease of further analysis this is the exact wording of the
relevant provisions found in paragraph 13 the General Comment No. 29: “13. In those pro-
visions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in
the Committee’s opinion cannot be made subject to lawful derogation under article 4. Some
illustrative examples are presented below. […] (b) The prohibitions against taking of hos-
tages, abductions or unacknowledged detention are not subject to derogation. The absolute
nature of these prohibitions, even in times of emergency, is justified by their status as norms
of general international law (italic added).” HRC, General Comment No. 29, para. 13(b).
45 Josef L. Kunz insists that general international law can be created solely by a cus-
tom, Kunz, “General International Law and the Law of International Organizations”,
American Journal of International Law, 1953, 457. Contrary to this view, Grigory Tunkin
is convinced that general international law comprises both customary and convention-
al rules. G. Tunkin, “Is General International Law Customary Law Only?”, European
Journal of International Law 4/1993, 541. For more see A. M. Zdravković, “Finding the
Core of International Law – Jus Cogens in the Work of the International Law Commis-
sion”, South Eastern Europe and the European Union – Legal Issues, 5/2019, 141–158.
46 As cited in International Law Commission, Second report on jus cogens by Dire Tla-
di, Special Rapporteur, 16 March 2017, A/CN.4/706, para. 41.
Milica V. Matijević, Ana M. Zdravković
757
norm of general international law having the same character”. Simply put,
to become peremptory, a norm must belong to the corpus of general interna-
tional law; secondly, it must be accepted and recognized by the international
community of states as non–derogable. As a reminder, in General Comment
No. 29, the HRC stated that certain provisions should be considered non–
derogable because of their absolute nature, which is derived from them being
a part of general international law.47 Well, as previously explained, there is
a notion in international law which denotes to such norm, but that notion is
generally avoided. International bodies are traditionally reluctant to qualify
a norm as a peremptory, jus cogens norm, and that seems to be as well the
case with this HRC argument. Here, the HRC could have stated that the
justification of the non–derogability of the relevant provisions lays in their
peremptory status, but it preferred not to. Instead, it resorted to the absolute
nature of these norms and offered some kind of mixture of concepts that
only added to the confusion over these already overlapping terms.
To leave no stone unturned, the HRC did clarify that the enumera-
tion of non–derogable rights “is related to, but not identical with, the ques-
tion whether certain human rights obligations bear the nature of peremptory
norms of international law”.48 What is more, it added that “the proclamation
of certain provisions of the Covenant as being of a non–derogable nature in
article 4, paragraph 2, is to be partly seen as recognition of the peremptory
nature of some fundamental rights”, but that “some other provisions of the
Covenant were included in the list of non–derogable provisions because it
can never become necessary to derogate from these rights during a state
of emergency (italics added)”.49 As an illustration of norms which are to
be considered non–derogable “because it can never become necessary to
derogate from these rights during a state of emergency” and not because
they could be qualified as peremptory norms, the HRC pointed out the pro-
hibition of imprisonment for inability to fulfil a contract (Art. 11) and the
freedom of thought, conscious and religion (Art. 18).50
47 See, footnote no. 43.
48 HRC, General Comment No. 29, para. 11. Similarly, in para. 13 (c) the HRC claimed
non–derogability of certain elements of the rights of persons belonging to minorities,
inter alia, on the basis of “the non–derogable nature of article 18 (italic added)”.
49 Ibid. On the basis of this, the HRC also concluded that the freedom to hold opinion
without interference (Art. 19, para. 1) belongs to those rights. The non–derogable nature
of Article 19, para. 1 was also stated in the General Comment No. 34, where the HRC
said that although the freedom of opinion is not in the list of non–derogable rights found
in Art. 4, para. 2, it permits no derogation “since it can never become necessary to der-
ogate from it during a state of emergency”. Human Rights Committee, CCPR General
Comment No. 34, 12 September 2011, CCPR/C/GC/34, para. 9.
50 HRC, General Comment No. 29, para. 11.
758
That, however, provokes another important question. How to
understand this view of the HRC given that several years earlier, in General
Comment No. 22, the same body expressed what seems to be an opposite
view, when affirming the “fundamental character” of freedom of thought,
conscious and religion that is “reflected in the fact that this provision can-
not be derogated from, even in time of public emergency”?51 In other words,
it remains unclear whether the freedom of thought, conscious and religion
is non–derogable owing to its fundamental importance or simply because
it would never be necessary to derogate from it. A closer scrutiny of the
possible reasons for its inclusion in the list of non–derogable norms might
provide valuable insights about the concept of absolute rights per se.
5.1.The Non–derogable Character of Freedom of Thought,
Conscious and Religion
In the academic literature and practice of the UN treaty bodies, it is
not rare to come across the view that the forum internum realm of Article
18 is inviolable because interference with this freedom is factually impos-
sible or at least beyond our epistemological grasp.52 This opinion is mostly
based on the argument that the forum internum entitlements are related to
the inner act of believing.53 Hence, according to such a view, they can be
neither derogated nor limited. An often–cited reference for that is found
in the study of discrimination in the matter of religious rights and prac-
tices, where the Special Rapporteur Krishnaswami stated that “[f]reedom
to maintain or to change religion or belief falls primarily within the domain
of the inner faith and conscience of an individual”, and that “[v]iewed from
this angle, one would assume that any intervention from out–side is not
only illegitimate but impossible.”
If further developed, such an interpretation of the content of the
forum internum freedoms could be a logical reason for the non–derogable
character of at least this dimension of Article 18.54 And what about the
forum externum aspect of Article 18? If we push the same argument further,
51 HRC, General Comment No. 22, para. 1.
52 For a view that freedom of conscience is non–derogable because its limitation would
be impossible see M. Jovanović, I. Krstić, “Human Rights and the Constitutionalization
of International Law”, in: Human Rights in the 21st Century (eds. Tibor Várady, Miodrag
Jovanović), Eleven International Publishing, 2020, 29.
53 See also O. Nikolić, Država, crkva i sloboda veroispovesti, Institut za uporedno pra-
vo, 2022, 52.
54 Special Rapporteur of the Sub–Commission on Prevention of Discrimination and
Protection of Minorities, Study of Discrimination in the Matter of Religious Rights and
Practices, UN Doc. E/CN.4/Sub.2/200/Rev.1, UN Sales No. 60. XIV.2.
Milica V. Matijević, Ana M. Zdravković
759
we could say that neither the right to derogate from the forum externum
is needed − although it certainly does not belong to the inner realm of an
individual’s existence − given that it can be subject to lawful limitations.
As noted earlier, Art. 18, para. 3, contains a limitation clause which allows
a state to interfere with its enjoyment both in times of normalcy and dur-
ing public emergencies. To go back to the dilemma raised in the previous
chapter, according to this reasoning, the words of the HRC should be read
as pointing to the factual impossibility to restrict Article 18 freedoms as
the ratio legis for its inclusion in the list of non–derogable rights from Art.
4, para. 2. Furthermore, these arguments could also become the basis of
a claim that – given that not all non–derogable rights are non–derogable
because of their fundamental character – the definition of absolute rights
need not imply the nexus between the fundamental importance of a certain
norm and its non–derogable nature.
On the other hand, this reasoning could be challenged on at least
two grounds. The most basic argument goes as follows: if it were factu-
ally impossible to interfere with forum internum rights, the prohibition of
coercion laid down in Art. 18, para. 2 would be redundant. Although forum
internum denotes the inner nucleus of a person’s religious, moral, or other
conviction, this provision clearly protects it against violations which, as we
have seen earlier, can be a consequence of direct and indirect forms of coer-
cion, as well as other interferences resulting in a compulsion to act contrary
to one’s beliefs. Not only that the ICCPR provisions postulate unconditional
protection of the forum internum freedoms, but during the last seventy
years, the scope of the Article 18 forum internum has been expanded in a
way which now makes it even easier to argue that it is factually possible
to violate it. We have seen in the previous chapters that forum internum
today includes rights which can be easily interfered with by a state, such
as the right not to reveal one’s thoughts or adherence to a religion or belief
illustrated in cases concerning the inclusion of data on religious affiliation
in identity cards. Yet another example is a state inquiry into the reasons for
adopting certain belief, or the requirement of advance notice or prior per-
mission, that has surfaced in several cases in relation to the anti–conversion
measures and has been characterised as a practice that may easily lead to an
unlawful interference with the forum internum.55 Secondly, the argument
that the forum externum freedoms can never become necessary to derogate
from – given that they are already subject to limitations – can be challenged
by recalling that limitations and derogation are two distinct types of human
55 Special Rapporteur on Freedom of Religion or Belief, Report and Addendum: Mission
to India, 26 January 2009, A/HRC/10/8/Add.3, para. 49.
760
rights restrictions. While there are many similarities between the two, the
obvious difference is that much more is needed to lawfully derogate from a
right, since the officially proclaimed public emergencies do not take place
every day.56 At the same time, the more significant interferences with a
right are more likely to be proven justified under derogations, provided that
the formal requirements are met, than under limitation clauses.57
Seen this way, the above developed line of reasoning which derives
the non–derogable character of Article 18 from a factual impossibility,
taken in a literal sense, to derogate from its provisions, cannot provide a
consistent answer to the question of why Article 18 was included in the list
of non–derogable rights. Nevertheless, if we abandon the literal reading
of the “factual impossibility” argument, we can try to give it a new one
through a somewhat more creative interpretation of the relevant HRC sen-
tence. The HRC statement that some provisions of the Covenant, Article
18 being among them, are found in the list of non–derogable provisions
“because it can never become necessary to derogate from these rights dur-
ing a state of emergency” could be read as referring to the fact that there
can be no imaginable and legitimate reasons to suspend the freedom to have
or to adopt a religion or belief of one’s choice, or to be free from coercion
which would impair this freedom.58 In other words, a state could suspend
application of the forum internum rights, but it would never be able to fulfil
the substantive criteria, i.e., meet the proportionality test laid down in Art.
4, para. 1, so to make of that suspension a lawful derogation.
If we embraced this view on the non–derogable nature of Article
18, we would arrive at the conclusion that the HRC statement that it can
never become necessary to derogate from this right, in effect, points to its
fundamental character. In theory, the fundamental character of Article 18
is often derived from its importance for preserving the dignity of a per-
son. According to the Special Rapporteur on Freedom of Religion or Belief,
the importance of the forum internum freedoms for the individual’s “inner
56 For the view that derogations produce more serious consequences regarding the en-
joyment of human rights than those arising from the limitation of rights, see V. Đurić, V.
Marković, „Sloboda veroispovesti i mere za suzbijanje epidemije virusa KOVID 19 – novi
pristup, domaća iskustva i uporedna rešenja”, u: Pandemija kovida 19: pravni izazovi i
odgovori (ur. Vladimir Đurić, Mirjana Glintić), Institut za uporedno pravo, 2021, 41.
57 This statement is based on the simple assumption that situations which require dero-
gations are usually much more serious, such as war, pandemic or natural disasters, com-
pared to those in which limitation clauses are invoked. It goes without saying that this
is far from being a rule, thus the interest would be weighed on the case–by–case basis.
58 Similar approach to the fundamental importance of the right as being an underly-
ing reason for its non–derogability can be found in D. Đukić, “Vera, zdravlje, pravo:
ograničenja slobode veroispovesti u uslovima pandemije”, Harmonius 2021, 85.
Milica V. Matijević, Ana M. Zdravković
761
faculty of forming, holding or changing, inter alia, opinions, ideas, con-
scientious positions, religious and non–religious convictions” and, hence,
developing and preserving “a stable sense of self–respect”, warrants an
interpretation “in close analogy to the unconditional prohibition of slavery
and the equally unconditional prohibition of torture”.59 Similarly, Malcom
D. Evans makes an analogy between the importance of freedom of thought,
conscious and religion and the importance of the prohibition of torture for
securing the basic well–being of an individual, as the reason why the two
are granted “elevated status which ought not to be subject to restriction”.
According to him, if vital aspects of physical well–being were protected
by the unconditional prohibition of torture than “it is at least arguable that
essential aspects of intellectual autonomy should be similarly protected”.60
D. M. El–Rashed follows the same line of reasoning when she derives the
absolute status of some rights from the fact that even in the most serious
emergencies there are still rights that cannot be derogated “on the grounds
that they are inherently too fundamental to ever be infringed upon” and,
subsequently, there is “no justifiable State objective to be sought in their
curtailment”.61 According to these views, the proposition that Article 18 is
exempted from derogation because it can never become necessary to dero-
gate from it eventually comes down to the fundamental importance of free-
dom of thought, conscious and religion as the explanation of its explicitly
non–derogable character. The drafters of the Siracusa Principles, though in
relation to some other ICCPR provisions, point to the same logic when they
observe that “the denial of certain rights fundamental to human dignity can
never be strictly necessary in any conceivable emergency”.62
To go back to our main question, that is, whether the non–derogable
status of a right could be taken as a proxy for its absolute character, it seems
that our analysis provides arguments which support such an approach to
the concept of absolute rights. It was shown that the non–derogable char-
acter of freedom of thought, conscience and religion could be considered
as indication of its fundamental importance, which is a view that has its
59 Special Rapporteur on Freedom of Religion or Belief, Report of 23 December 2015,
A/HRC/31/18, para. 19. Here, the Special Rapporteur refers to both Article 18 (para. 2)
and Article 19 (para. 1).
60 M. Evans, Religious Liberty and International Law in Europe, Cambridge University
Press, 1997, 317.
61 D. M. El–Rashed, “Derogation in Time of Emergency: An Analysis of Counter–Ter-
rorism Measures in France and Their Impact on Human Rights”, Florida Journal of
International Law 30(1), 2018, 14–15.
62 American Association for the International Commission of Jurists, The Siracusa
Principles, para. 70.
762
supporters in both theory and practice. According to the Special Rappor-
teur on Freedom of Religion or Belief, the non–derogable character of Arti-
cle 18 “underlines the importance of the freedom of thought, conscience
and religion”.63 Evans, goes a step further when he claims that due to the
non–derogable character of Article 18, freedom of thought, conscience and
religion should be considered an absolute right.64 In effect, the assumption
that non–derogable rights are exempted from derogations because of their
fundamental importance brings us to the concept of absolute rights. They
are seen as rights the importance of which overrides any possible benefit
that their suspension might bring to a state facing a threat to its security
or survival. As John H. Knox, expressed it, non–derogable rights are “like
“trumps,” in Ronald Dworkin’s phrase, that outweigh other societal inter-
ests, no matter how pressing and important”.65
That brings us to the conclusion, with which we are closing our
inquiry, that if there were no exception to the rule that the explicit prohi-
bition of derogation ensues from the fundamental interest a right protects,
then the nexus between the non–derogability and the fundamental impor-
tance could remain among the key elements of the definition of absolute
rights.66
6.Conclusion
The goal of this paper was to provide further insights – by ana-
lysing different interpretations of the non–derogable character of Article
18 – on the relationship between non–derogability and absolute rights.
After providing the basic terminological and conceptual clarifications and
a brief overview of the main attempts to define absolute rights, we have
analysed several statements of the Human Rights Committee which reflect
its view of non–derogability and the concept of absolute rights. There we
have observed that the HRC clearly links exemption from derogation with
the absolute character of a right and is of the opinion that such a link, which
63 Special Rapporteur on Freedom of Religion or Belief, Report: Civil and Politi-
cal Rights, Including the Question of Religious Intolerance, of 9 January 2006, E/
CN.4/2006/5, para. 42.
64 M. Evans, 200, 221.
65 J. H. Knox, “Horizontal Human Rights Law”, The American Journal of International
Law 102/1, 2008, 13.
66 That, however, does not answer a myriad of other questions, such as whether the
catalogue of non–derogable rights should be confined only to those explicitly proclaimed
as such, whether the scope of absolute protection should embrace the entire right or only
some of its aspects, and many other similar issues which will hopefully become a subject
of some future academic inquiries.
Milica V. Matijević, Ana M. Zdravković
763
ensues from the fundamental nature of the interest a right protects, is not
confined to peremptory norms of international law. For the HRC there is
a causal relationship between non–derogability and the absolute nature of
a right. However, the HRC also points to the existence of norms which are
non–derogable because it can never become necessary to derogate from
them during a state of emergency. To illustrate this, it refers to the non–
derogable nature of freedom of thought, conscious and religion. In legal
scholarship, it is sometimes also claimed that the exemption from deroga-
tion of Article 18 ensues from the fact that this right, more specifically, its
forum internum aspect, is factually impossible to restrict.
The given claim turns the examination of the reasons for the
explicit non–derogability of Article 18 into an interesting path for investi-
gating the relationship between the prohibition of derogation and absolute
rights. Namely, if not all non–derogable rights were non–derogable because
of their fundamental character, that would mean that non–derogability does
not always and necessarily imply the fundamental importance of a right.
As such, the non–derogable status of a right could not be considered as
firm indication of its absolute nature. In other words, the nexus between the
fundamental importance of a certain norm and its non–derogable character
would not figure anymore as the key element of the concept of absolute
rights as it does in many of the existing attempts to define it.
In the paper, we first investigated the view that the forum inter-
num realm of Article 18 is inviolable because, as certain authors claim, it
is factually impossible to restrict it. We further developed the given view
by extending it to the forum externum aspect of the freedom. Then we
challenged it by providing arguments against such an understanding of the
non–derogable character of Article 18. Eventually, we offered an alterna-
tive reading of the HRC statement that some provisions of the Covenant,
Article 18 being among them, are exempted from derogation “because it
can never become necessary to derogate from these rights during a state of
emergency”. We showed that the contentious HRC statement could be inter-
preted as referring to the fact that there can be no imaginable and legitimate
reasons to suspend the freedom to have or to adopt a religion or belief of
one’s choice, or to be free from coercion which would impair this freedom.
In other words, that it is possible for a state to suspend application of the
forum internum rights in practice, but it would never be able to fulfil the
substantive criteria, i.e., meet the proportionality test laid down in Art. 4,
para. 1, as to make of such a suspension a lawful derogation. If embraced,
that interpretation of the non–derogable character of Article 18 eventu-
ally comes down to the fundamental importance of freedom of thought,
764
conscious and religion as the key explanation of its explicitly non–deroga-
ble character. This, in turn, provides one more argument for the view that
the nexus between non–derogability and the fundamental significance of
the interest a right protects should remain an important criterion for the
identification of absolute rights.
МилицаВ.Матијевић
Научна сарадница Института за упоредно право
АнаМ.Здравковић
Истраживачица сарадница Института за упоредно право
НЕКОЛИКОЦРТИЦАОНЕДЕРОГАТИВНОМ
КАРАКТЕРУСЛОБОДЕМИСЛИ,САВЕСТИ
ИВЕРОИСПОВЕСТИ
ИКОНЦЕПТУАПСОЛУТНИХЉУДСКИХПРАВА
Сажетак
Поједина људска права се називају апсолутним правима, јер
се сматра да интереси које штите одражавају основне вредно-
сти људског друштва. За многе ауторе, изузетан значај ових права
потврђен је немогућношћу њихове дерогације, што их одваја од других,
дерогативних људских права. Међутим, постоје и ставови да неде-
рогативност није нужно манифестација фундаменталне важности
конкретног људског права, већ да проистиче из његових других карак-
теристика. Као пример обично се наводи право на слободу мисли,
савести и вероисповести, гарантовано одредбом члана 18. Пакта о
грађанским и политичким правима. У раду аутори анализирају могуће
разлоге због којих ово право ужива недерогативни статус, а у циљу
стицања детаљнијег увида у однос између недерогативности и кон-
цепта апсолутних права. Резултати анализе пружају аргументе у
прилог тези да је недерогативност уско повезана са фундаменталним
значајем права и да као таква треба да остане међу кључним крите-
ријумима за дефинисање апсолутних права.
Кључнеречи:апсолутна људска права, ограничења људских
права, дерогација, фундаментални значај, слобода мисли, савести и
вероисповести; члан 18. Пакта о грађанским и политичким правима,
члан 4. Пакта о грађанским и политичким правима.
Milica V. Matijević, Ana M. Zdravković
765
REFERENCES
Monograph,articles
Alexander L., Moore M., “Deontological Ethics”, Stanford Encyclopedia of
Philosophy, https://plato.stanford.edu/entries/ethics–deontological/
30. 10. 2020.
Åström K., “The Freedom of Religion in Relation to Other Human Rights”
in: Freedom of Religion – An Ambiguous Right in the Contemporary
European Legal Order (eds. Hedvig Bernitz, Victoria Enkvist), Hart
Publishing, 2020, 75–98, https://doi.org/10.5040/9781509935895.
ch–006
Bielefeldt H., “Freedom of Religion or Belief – A Human Right under Pres-
sure”, Oxford Journal of Law and Religion 1/2012, 15–35, https://
doi.org/10.1093/ojlr/rwr018
Borowski M., “Absolute Rights and Proportionality”, German Yearbook of
International Law 56, 2013, 385–424.
Boyle K., Shah S., “Thought, Expression, Association, and Assembly”, in:
International Human Rights Law (eds. Daniel Moeckli, Sangeeta
Shah, Sandesh Sivakumaran), Oxford University Press, 2014, 217–
238, https://doi.org/10.1093/he/9780199654574.003.0014
De Shutter O., International Human Rights Law, Cambridge University
Press, 2010.
De Wet E., “The Constitutionalization of Public International Law”, in:
The Oxford Handbook of Comparative Constitutional Law (eds.
Michel Rosenfeld, András Sajó), Oxford University Press, 2012,
1209–1230.
Đukić D., „Vera, zdravlje, pravo: ograničenja slobode veroispovesti u
uslovima pandemije”, Harmonius 2021, 76–95.
Đurić V., Marković V., „Sloboda veroispovesti i mere za suzbijanje epidemije
virusa KOVID 19 – novi pristup, domaća iskustva i uporedna rešenja“,
u: Pandemija kovida 19: pravni izazovi i odgovori (ur. Vladimir Đurić,
Mirjana Glintić), Institut za uporedno pravo, 2021, 35–51.
El–Rashed D. M., “Derogation in Time of Emergency: An Analysis of
Counter–Terrorism Measures in France and Their Impact on Human
Rights”, Florida Journal of International Law 30/2018, 1–26.
Essink J. et al., “The Indivisibility of Human Rights: An Empirical Anal-
ysis”, Human Rights Law Review 23/3, 2023, 1–18, https://doi.
org/10.1093/hrlr/ngad013
766
Evans M., Religious Liberty and International Law in Europe, Cambridge
University Press, 1997, https://doi.org/10.1017/CBO9780511599378
Garibaldi O. M., “General Limitations on Human Rights: The Principle of
Legality”, Harvard International Law Journal 17/3, 1976, 503–558.
Helfer L., “Rethinking Derogations from Human Rights Treaties”, Amer-
ican Journal of International Law 115 /1, 20 21, 2 0 – 40 , https://doi.
org/10.1017/ajil.2020.92
Joseph S., Castan M., The International Covenant on Civil and Political
Rights – Cases, Materials and Political Rights, Oxford University
Press, 2013, https://doi.org/10.1093/law/9780199641949.001.0001
Jovanović M., Krstić I., “Human Rights and the Constitutionalization of Inter-
national Law”, in: Human Rights in the 21st Century (eds. Tibor Várady,
Miodrag Jovanović), Eleven International Publishing, 2020, 25–43.
Klein E., “On Limits and Restrictions of Human Rights: A Systematic Attempt”,
in: Strengthening Human Rights Protections in Geneva, Israel, the
West Bank and Beyond (eds. Joseph E. David et al.), Ca mbr idge Un i-
versity Press, 10–39, https://doi.org/10.1017/9781108973069.002
Knox J. H., “Horizontal Human Rights Law”, The American Journal of Inter-
national Law 102/1, 2008, 1–47.
Kunz J., “General International Law and the Law of International Organiza-
tions”, American Journal of International Law 47/3, 1953, 119–126.
Matijević M. V., ”Some Critical Reflections on the Broad Human Rights
Constitutionalisation”, Constitutio Lex Superioris: Sećanja na pro-
fesora Pavla Nikolića (ur. Oliver Nikolić, Vladimir Čolović), Institut
za uporedno pravo, 2021, 155–172.
Mavronicola N., “Crime, Punishment and Article 3 ECHR: Puzzles and
Prospects of Applying an Absolute Right in a Penal Context”, Human
Rights Law Review 15/2012, 721–743, https://doi.org/10.1093/hrlr/
ngs020
Mavronicola N., “What is an ‘Absolute Right’? Deciphering Absoluteness
in the Context of Article 3 of the European Convention on Human
Rights”, Human Rights Law Review 12/2012, 723–758.
Mazzeschi R. P., Viviani A., “General Principles of International Law: From
Rules to Values?”, in: Global Justice, Human Rights and the Modern-
ization of International Law (eds. R. Pisillo Mazzeschu, P. De Sena),
2018, Springer, 113–161, https://doi.org/10.1007/978–3–319–90227–2
McGoldrick D., “The Interface Between Public Emergency Powers and
International Law”, International Journal of Constitutional Law 2/2,
2004, 380–429, https://doi.org/10.1093/icon/2.2.380
Milica V. Matijević, Ana M. Zdravković
767
McNaughton D., “Deontological Ethics” in: Concise Routledge Encyclopedia
of Philosophy (ed. Edward Craig), Routledge, 1999.
Minkler L., Sweeney S., “On the Indivisibility and Interdependence of Basic
Rights in Developing Countries”, Human Rights Quarterly 33/2,
2011, https://doi.org/10.1353/hrq.2011.0017
Möller K., “The Right to Life Between Absolute and Proportional Protec-
tion”, LSE Law, Society and Economy Working Papers 13/2010, 1–18,
https://doi.org/10.2139/ssrn.1620377
Möller K., The Global Model of Constitutional Rights, Oxford University Press,
2012, https://doi.org/10.1093/acprof:oso/9780199664603.001.0001
Nagel T., “War and Massacre”, in: Consequentialism and its Critics (ed. Sam-
uel Scheffler), Oxford University Press, 1988, 51–73.
Nikolić O., Država, crkva i sloboda veroispovesti, Institut za uporedno pravo,
2022, https://doi.org/10.56461/M186_22ON
Paunović M., Krivokapić B., Krstić I., Međunarodna ljudska prava, Pravni
fakultet Univerziteta u Beogradu, 2014.
Reljanović M., Ćorić V., Matijević M. V., Međunarodni sud pravde i – organ-
izacija, postupak, slučajevi, Institut za uporedno pravo, 2007.
Ross J. M., “Limitations on Human Rights in International Law: Their Rel-
evance to the Canadian Charter of Rights and Freedoms”, Human
Rights Quarterly 6/1984, 180–223, https://doi.org/10.2307/762242
Sheinin M., “Core Rights and Obligations”, in: The Oxford Hand-
book of International Human Rights Law (ed. Dinah Shelton),
Oxford University Press, 2013, 527–540, https://doi.org/10.1093/
law/9780199640133.003.0023
Tay lor P. M ., Freedom of Religion: UN and European Human Rights Law
and Practice, Cambridge University Press, 2005.
Tu n ki n G ., “ I s Ge n er a l In te r na ti on al L a w Cu s to m ar y L aw O n ly ?” , European
Journal of International Law, 1993, 534–541, https://doi.org/10.1093/
oxfordjournals.ejil.a035843
Whelan D., Indivisible Human Rights: A History, University of Pennsylvania
Press, 2010, https://doi.org/10.9783/9780812205404
Wou ter s C. K., “ Inte rn ational R efugee and H uma n R ight s L aw: Pa rt-
ners in Ensuring International Protection and Asylum”, in: Rou-
tledge Handbook of International Human Rights Law (eds. Scott
Sheeran, Sir Nigel Rodley), Routledge, 2013, 231–245, https://doi.
org/10.4324/9780203481417–17
Yut aka A . T., “P ropor ti onal ity ”, i n: The Oxford Handbook of International
Human Rights Law (ed . Di nah S hel ton), 2013; Oxford Unive rsit y Pu b-
lishing, 446–468, https://doi.org/10.1093/law/9780199640133.003.0020
768
Zdravković A. M., “Finding the Core of International Law – Jus Cogens in the
Work of the Int er nat ion al Law Com mission”, South Eastern Europe
and the European Union – Legal Issues 5/2019, 141–158, https://doi.
org/10.2139/ssrn.3776309
Zdravković A. M., “The Affair of “State of Emergency” – Was 70 Years of
European Convention on Human Rights Enough to Prepare Mem-
ber States for COVID–19 Crisis?”, Iustunianus Primus Law Review,
2020, 1–12, https://doi.org/10.2139/ssrn.3938255
Zdravković A. M., „Pravo na život sagledano kroz prizmu apsolutnih ljud-
skih prava”, Pravni život 12/2019, 337–355.
OtherSources
American Association for the International Commission of Jurists, The Sira-
cusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights, 28 September
1984, U.N. Doc. E/CN.4/1985/4.
Council of Europe, “Some definitions”, https://www.coe.int/en/web/echr–
toolkit/definitions, 10. 6. 2023
Council of Europe, European Convention for the Protection of Human Rights
and Fundamental Freedoms, amended by Protocols Nos. 11 and 14,
4 November 1950, ETS 5.
Shelton D., Roberts Harris P., Report “Are There Differentiations Among
Human Rights? Jus Cogens, Core Human Rights, Obligations Erga
Omnes and Non–derogability”, UniDem Seminar “The Status of
International Treaties on Human Rights” (Coimbra (Portugal), 7–8
October 2005), https://www.venice.coe.int/webforms/documents/?pd-
f=CDL–UD(2005)020rep–e, 23. 7. 2023.
European Court of Human Rights, A le xan dr idi s v. G ree ce, App. No. 19516/06,
Judgment of 21 February 2008.
European Court of Human Rights, Chahal v. the United Kingdom, App. No.
22414/93, Judgment of 15 November 1996.
European Court of Human Rights, Gäfgen v. Germany, App. No. 22978/05,
Judgment of 1 June 2010.
European Court of Human Rights, Sinan Isik v. Turkey, App. No. 21924/05,
Judgment of 2 February 2010.
European Court of Human Rights, Soering v. the United Kingdom, App. No.
14038/88, Judg ment of 7 July 1989.
Milica V. Matijević, Ana M. Zdravković
769
Human Rights Committee Special Rapporteur, Report on the Implementa-
tion of the Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief, 6 January 1993,
E/CN.4/1993/62.
Human Rights Committee Special Rapporteur, Report on the Implementa-
tion of the Declaration on the Elimination of All Forms of Intoler-
ance and of Discrimination Based on Religion or Belief, 7 November
1996, A/51/542/Add.1.
Human Rights Committee, CCPR General Comment No. 22 on Article 18:
Right to freedom of thought, conscience and religion, CCPR/C/21/
Rev.1/Add.4, 30 July 1993.
Human Rights Committee, CCPR General Comment No. 29: Article 4: Der-
ogations during a State of Emergency, CCPR/C/21/Rev.1/Add.11, 31
August 2001.
Human Rights Committee, CCPR General Comment No. 34 on Article 19:
Freedoms of opinion and expression, CCPR/C/GC/34, 12 September
2011.
Human Rights Committee, CCPR General Comment No. 36 on Article 6:
Right to life, CCPR/C/GC/36, 3 September 2019.
Human Rights Committee, Report of 7 October 1993, A/48/40 (Part I).
Human Rights Committee, Yong– Joo Kang v. Republic of Korea, adopted on
16 July 2003, CCPR /C/78/ D/878/1999.
International Court of Justice, Case Concerning the Barcelona Traction,
Light and Power Company, Limited (Belgium v. Spain), Judgment,
ICJ Reports 1970.
International Criminal Tribunal for the former Yugoslavia, Final Report to
the Prosecutor by the Committee Established to Review the NATO
Bombing Campaign Against the Federal Republic of Yugoslavia,
2000.
International Law Commission, Second report on jus cogens by Dire Tladi,
Special Rapporteur, 16 March 2017, A/CN.4/706.
Organization of African Unity, African Charter on Human and Peoples’
Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21
I.L.M. 58.
Organization of American States, American Convention on Human Rights,
“Pact of San Jose”, Costa Rica, 22 November 1969.
Special Rapporteur of the Sub–Commission on Prevention of Discrimination
and Protection of Minorities,Study of Discrimination in the Matter
of Religious Rights and Practices, UN Doc. E/CN.4/Sub.2/200/Rev.1,
UN Sales No. 60. XIV.2.
770
Special Rapporteur on Freedom of Religion or Belief, Interim Report: Elimi-
nation of all forms of religious intolerance, 2 August 2016, A/71/269
Special Rapporteur on Freedom of Religion or Belief, Report of 23 December
2015, A/HRC/31/18, para. 19.
Special Rapporteur on Freedom of Religion or Belief, Report on freedom of
thought, 5 October 2021, A/76/380.
Special Rapporteur on Freedom of Religion or Belief, Report on Freedom of
Religion and Belief, Annex II: 18 commitments on “Faith for Rights”,
of 5 March 2019, A/HRC/40/58.
Special Rapporteur on Freedom of Religion or Belief, Report, Addendum:
Mission to India, 26 January 2009, A/HRC/10/8/Add.3.
Special Rapporteur on Freedom of Religion or Belief, Report: Civil and Polit-
ical Rights, Including the Question of Religious Intolerance, of 9 Jan-
uary 2006, E/CN.4/2006/5.
UN Committee against Torture, Report of the Committee against Torture
on its Forty–third session (2–20 November 2000) and on its Forty–
fourth session (26 April–14 May 2010), Suppl. No. 44, A/65/44.
UN General Assembly, Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, 25
November 1981, A/RES/36/55.
UN General Assembly, International Covenant on Civil and Political Rights,
16 De cemb er 1966, Un ited Nation s, Tr ea ty Ser ies , vol. 999, 171.
UN General Assembly, Report of the International Law Commission on its
Seventy–first session (29 April–7 June and 8 July–9 August 2019),
A/74/10.
UN General Assembly, Second Optional Protocol to the International Cov-
enant on Civil and Political Rights, Aiming at the Abolition of the
Death Penalty, 15 December 1989, A/RES/44/128.
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969,
United Nations, Treaty Series, vol. 1155, 331.
