Some human rights are absolute. This means that states cannot restrict these rights or derogate from them in any way or for any reason.
Most human rights can be restricted to protect important public interests such as public safety or other people’s rights. However, there are some rights that can never be restricted under any circumstances or for any reason. These rights are called absolute rights. The absolute nature of these rights means that they cannot be restricted even in times of war or other emergencies.
Absolute rights are generally considered to be:
- the prohibition of torture
- the prohibition of inhuman and degrading treatment
- the prohibition of slavery
- the prohibition of retroactive criminal laws (no punishment without law)
Sometimes, rights that cannot be restricted because of their nature are also considered absolute. For example, the internal aspect of freedom of thought, conscience and religion – what you think or believe internally – cannot be restricted or changed by the state. Therefore, by its internal nature, such a right cannot be restricted and is considered absolute.
note Estonian Constitution does not specify a list of absolute rights. According to Article 11 of the Constitution, rights and freedoms may be restricted only in accordance with the Constitution and such restrictions must be necessary in a democratic society and must not distort the essence of the rights and freedoms restricted. However, the rights that are considered absolute in the human rights instruments which Estonia has joined are also considered absolute in Estonia.
Absolute rights and non-derogable rights
Some rights are also called non-derogable rights. These rights include all absolute rights, but they are broader because they also include rights that can be lawfully restricted. The non-derogable nature of rights mean that states cannot declare any exemptions from upholding them in times of emergency and they have to observe the same safeguards regardless of whether there is an emergency.
example The right to life is a non-derogable right in most human rights instruments. This does not mean that the State cannot legitimately use lethal force or kill someone under strictly regulated circumstances, for example, when protecting the life of another person or through a person being a legitimate casualty during war. The non-derogable nature of the right to life means that it always applies in the same way, even in times of emergency and the State always has to comply with the strict limits of law that regulate situations in which the taking of life is legal.
Read more about derogation in times of emergency.