Waiver of Human Rights – Setting the Scene (Part I/III)
- Side: 300-370
- Publisert på Idunn: 2011-05-20
- Publisert: 2011-05-20
Whether, and under what conditions, does a waiver of rights according to the European Convention on Human rights exempt a state from its corresponding obligations? And – by extension – is it, under certain circumstances, obliged to respect a waiver and thereby grant the right-holder the opposite of an express right? This article will focus on these general questions: a waiver of a right guaranteed by the Convention must be validly established, in an unequivocal manner and not run counter to any important public interests. The latter requirement implies that there are limits to the right-holder’s self-determination regarding his rights; the importance of securing human rights may reach beyond the individual directly concerned. Consequently, the right-holder does not necessarily have the competence to dispose over the right so that he, by waiving it, relieves the state of its obligation to secure the right in question. Nevertheless, the right-holder’s self-determination, too, may carry weight in particular situations and in relation to particular rights. Also this article intends to clarify the relationship between waiver and two concepts in the extension: ‘negative’ and ‘preferred’ rights. It is argued that a right-holder can, to a certain extent, claim the opposite of what a particular article expressly grants him. The legal basis for such (possible) claim is discussed. The study applies ‘ordinary legal method’ (relevant terms of the treaty (especially ECHR) read in their context, in the light of its object and purpose and with due regard to case law).
Keywords: Waiver of Human Rights, Inalienable Rights, Self-Determination, Important Public Interests, Negative Rights.