Waiver of Human Rights: Waiver of Substantive Rights (Part II/III)
- Side: 56-153
- Publisert på Idunn: 2011-08-30
- Publisert: 2011-08-30
In the present Article the application of the general principles governing waiver of rights (as previously outlined) to substantive Convention rights, such as the right to life and the freedom of expression, is investigated. The study confirms that self-determination plays a role, while at the same time core elements of substantive rights cannot be waived since they reach beyond the individual right-holder’s sphere. This applies to both derogable and non-derogable rights. Whether validity of the right-holder’s decision in a narrower sense – his free, informed and continued determination to waive – or the conformity of his waiver with important public interests is at the centre of attention varies with the circumstances and the right involved. Such sensitive matters as are covered by the most ‘sacred’, non-derogable, rights: life, integrity and personal freedom, at the centre of the right-holder’s self-determination. As a consequence the right-holder’s consent to or call for a particular treatment, may remove the issue completely from the ambit of the protection. When it comes to derogable substantive rights (typically those in ECHR articles 8 – 11) the consideration connected to the core-periphery-dimension finds a reflection in the parallel to the ordinary conditions for interference, most often set out in the second paragraph of the relevant article (law, purpose and necessity). However, where waiver of a derogable right is substantiated, the state has more leeway. Not insignificantly, a right-holder can in a number of cases even claim the opposite of what a particular article expressly grants him. Such ‘negative rights’ are evident inter alia in relation to the substantive ‘positive rights’ expressed in articles 10 and 11. Even the opposite of a right to marry (art 12), a right to divorce, may in certain cases develop, eventually on the basis of a ‘preferred right’.
Keywords: Waiver of Rights, Self-Determination, Right to Life, Torture, Inhuman Treatment, Forced Labour, Deprivation of Liberty, Retroactive Criminal Law, Private and Family Life, Marriage and Divorce, Thought and Religion, Freedom of Expression, Assembly and Organisation.