Study On The Limitation Clauses Of The International Covenant On Civil And Political Rights

Human rights have become the common values and moral language of the international community,but the importance of human rights does not mean absoluteness.Certain limitations must be imposed on the exercise of human rights to coordinate the social value demands of different subjects under different social conditions,so that the rights of all individuals can be realized and guaranteed to the maximum extent.In order to ensure the legitimacy of the limitation,most international human rights treaties set up the limitation clauses while specifying the individual rights in detail.States parties may impose limitations on the rights of individuals in specific circumstances in accordance with these provisions.The abstractness and ambiguity of the provisions on the limitation clauses because of the compatibility of international human rights treaties with different cultural traditions and social realities leads to the difficulties in understanding and application in various countries.At the same time,it also leaves room for some countries to distort and apply arbitrarily,thus affecting their function in international human rights governance.As the most authoritative universal standard in international human rights law,the International Covenant on Civil and Political Rights(hereinafter referred to as the“Covenant”)is a very representative research sample.An examination of the international human rights treaties reveals that the limitation clauses,especially the limitation clauses of specific right,mainly focuses on the freedom of movement,freedom of religion or belief,freedom of expression,right of privacy,right to liberty and security of person,etc.The above-mentioned rights and their limitation clauses are embodied in the Covenant.Moreover,the Human Rights Committee's decision on complaints from individuals is also rich in information,which provides sufficient materials for studying the limitation clauses from a practical perspective.The research on the limitation clauses in the Covenant in this paper focuses on the following three issues: First,how to understand and interpret the limitation principles stipulated in the Covenant? Second,how does the Human Rights Committee interpret and apply the limitation clauses in dealing with complaints from individuals? Third,what theoretical logic is reflected behind the limitation clauses?The answer to the above questions is the premise for the correct interpretation andapplication of the limitation clauses in the Covenant.Taking the limitation clauses in the Covenant as the research object,this paper first elaborates the basic issues of the limitation clauses in the Covenant for the purpose of establishing the basic framework of the research.Secondly,the paper explains and analyzes the limitation clauses from three aspects: historical background,normative analysis and its application in the practice of international human rights supervision.Finally,on the basis of the above explanatory analysis,the theoretical proposition in the limitation clause in the Covenant is summarized and refined from the perspective of the relationship between individual rights and state power.This paper holds that the essence of the limitation clauses lies in promoting the realization of human rights through the tension between the structure mode of defense right and the structure mode of cooperation right.In addition to the introduction and conclusion,this paper is divided into six chapters:The first chapter of this paper illustrates the basic issues of the limitation clauses in the Covenant,including issues of connotation,type,characteristics,function,historical origin and so on.Through the semantic analysis of limitation clauses of rights,the basic framework of the research is established.The Covenant contains only limitation clauses of specific rights,which can be divided into two types: the expressed limitation clauses and the implied limitation clauses,with both permissible and restrictive functions.From the perspective of semantics,limitation clauses of rights embody the basic principles of the relevance of rights and obligations,limiting the limitation and the Horizontal Effect.From a historical perspective,the analysis of the Universal Declaration of Human Rights has contributed to a deeper understanding of the limitation clauses in the Covenant,which were developed from Article 29 of the Universal Declaration of Human Rights.The second chapter analyzes the historical background of the limitation clauses in the Covenant.The drafters discussed extensively the drafts and proposals submitted by the representatives of various countries during the formulation of the Covenant,which demonstrated the collision and communication of different values and social needs,as well as the compromise and efforts to reach consensus.Through summarizing the process of the Commission on Human Rights' discussion of each limitation clause on specific right on the basis of systematical review of the travaux préparatoires of the Covenant,this chapter attempts to realize the condensing processof the diction,the focus of the dispute and the theoretical reasons behind the implications,thus preparing important materials and supporting means for the interpretation of the limitation clauses.The third chapter explicates the interpretative principles of the limitation clauses of rights in the Covenant.The interpretative principles of the limitation clauses of rights can not only guide the interpretation and application of the limitation clauses of rights in the Covenant,but also promote the coordinated development of limiting rights and controlling power.According to the scope of application,the interpretative principles of the limitation clauses of rights can be divided into general interpretative principles and the interpretative principles relating to specfic clauses.The former refers to the interpretative principles which is applicable to all limitation clauses of rights,including the principle of non-discrimination,non-abuse of limitation,the compatibility with other rights in the Covenant and the principle of necessity;the latter refers to interpretative principles relating to specific limitation clauses,including the principle of legality,the principle of rationality,the principle of democracy,and the principle of non-arbitrariness.The fourth chapter is a normative analysis of the limitation clause in the Covenant.Based on the comprehensive use of interpretation methods such as the semantic interpretation,purpose interpretation and the historical interpretation,and the lessons from the academic interpretation made by scholars,this chapter interprets the limitation clauses in the context of specific rights.Although the express limitation clauses contain three principles of legality,rationality and necessity,and the implied right limitation clauses contain two principles of legality and non-arbitrariness,there are certain differences in the pattern and meaning of regulating these elements in different articles of the Covenant.By collating and summarizing the decisions made by the Human Rights Committee in dealing with complaints from individuals,the fifth chapter explains and analyzes the application of the limitation clauses in the Covenant in the practice of international human rights supervision.In the process of interpreting and applying the limitation clauses of right,the Human Rights Committee makes the meaning of the limitation principles gradually clear and enhances the applicability of the limitation clauses through dynamic interpretation in the context of specific rights,which is an important supplementary resource for comprehension of the limitation clauses correctly.On the basis of the above analysis,the sixth chapter generalizes the theoretical logic of the limitation clauses in the Covenant from the perspective of defining and dealing with the relationship between individual rights and state power.There are two modes of human rights operation: the structure mode of defense right and the structure mode cooperation right.The limitation clauses are the embodiment of the interaction between the two.The structure mode of defense right emphasizes the limits that the state must observe when imposing limitations on individual rights,that is,the limiting the limitations.The structure mode of cooperation right reflects the positive obligation to ensure the realization of the human rights.This paper argues that it is necessary to promote the continuous conversion of inherent and legal human rights into actual human rights within the tension of the two models,which is also the reflection and refraction of the collision,interaction and integration of multiple human rights views in the Covenant.