Limitation and Derogation of Fundamental Rights

Legislators can limit fundamental rights in different ways: While only some fundamental rights in human rights texts are guaranteed as absolute rights without limitations, most international conventions, as well as national constitutional laws, provide for various mechanisms of limitation. Four main types have been identified: General constitutional reservations, express limitations, inherent or implicit constitutional limitations and limitations in emergency situations. General non-specific reservations allow the limitation of fundamental rights by a simple reference to the legislature. A distinction can be made between general non-specific reservations and more specific reservations, which require formal or substantive elements, although on closer examination general reservations are usually linked at least to general objects of limitation, such as the principle of proportionality or the protection of essential content. More common is the insertion of general reservations linked to the content or substance of fundamental rights or limitation by qualified statutory reservations authorised by the constitution, which may include objectives and purposes such as reasons of public interest and the rights of others. Another mechanism mentioned by the Article is inherent or implicit limitations, which operate in such a way that the fundamental right is limited directly by the wording of the fundamental right itself or by the wording of the constitution as a whole, which limits the content or scope of the right in question without any intermediate step by the legislature. However, such limitations on fundamental rights themselves find their limits in principles such as the prohibition of specific individual laws, the protection of the core or essence of the fundamental right and the—often unwritten—principle of proportionality (“counter-limitations”). Finally, the article addresses the possibility of limiting fundamental rights in emergency situations.