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Conflicting rights
The UDHR says:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
This means that rights are not absolute. There are situations when it is acceptable and justified to limit a person's rights. We look at some of these in the section 'Can human rights be suspended in conflict?' in the next chapter.
Here are some examples of situations where rights are in conflict and one (or both) of the rights will have to be limited. If the parties who are in conflict can't solve the problem then they can refer the case to the courts.
The court will have to decide whose right is more important in each situation and whether it is reasonable and justifiable to limit the right.
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When there is a conflict between different rights, the courts may be called upon to decide what the balance is between them.
They will take a number of factors into account:
- Which right is in the greater public interest?
- If a right is to be limited, will this limitation interfere with the essence of the right itself?
- Are there alternative solutions, other than limiting the right?
Choosing between conflicting rights 1
Read the following outline of a (true) case involving conflicting rights. If you were the judge in this case what would you decide? Whose rights are more important: the right to freedom of speech and freedom of information or the right to be protected against racial discrimination? Why did you decide this?
A journalist called Jersild taped a long interview with three members of a gang who were anti-foreigners. They made certain highly racist statements. The interview (in a shortened form) was broadcast in a news programme.
After the interview the three members were arrested and charged with making racist 'threatening, insulting and degrading' statements. Jersild, the journalist, was also charged with aiding and abetting them (because he broadcast the comments from the interview).
Jersild claimed that it was in the interests of the public to know about the racist movement in the country. He said he had a right to freedom of speech.
Did you decide that the public had a right to be protected from race discrimination (so the journalist's right to freedom of speech should be limited)?
The Danish Supreme Court agreed with you. The court said it was more important in this situation to protect people against race discrimination rather than the journalist's right to freedom of speech.
But, if you decided that the journalist's right to freedom of speech was more important then you would be following the decision of the international human rights court. The journalist took his case on appeal to this court and he subsequently won it.
Choosing between conflicting rights 2
Below you will find illustrations depicting three different scenarios. Select the rights that you think apply to each person in the situation. Then think about whose right you believe is more important in the circumstances and whether it is justified to limit one of the parties' rights.
There are still certain human rights that can never be limited or suspended either in a war or in any form of state of emergency, or when they conflict with other rights. They are called non-derogable rights.
They include fundamental rights such as the right to life, the right not to be tortured, freedom from slavery and freedom of conscience. We shall look at these in more detail in the next chapter on The human rights system.
Last modified 09-25-2006 01:51 PM
