Restrictions on the rights protected

The necessity to entrench a list of rights to all individuals emanates from the danger that authorities might abuse their powers to the detriment of their citizens. It is not a question of being anarchist or extreme liberal.

History has shown that power in the wrong hands can lead to the destruction of whole societies, to a life of fear, oppression and suffering, to a life which runs counter to all principles of natural law.

Extremes, however, are never the solution to anything in life. Aristotle advocated the idea of the 'golden mean', the happy medium, a constructive balance of giving and taking for the common good.

This is the foundation of all human rights. Individuals must not be denied that which is theirs from birth, that which is innate. On the other hand, however, authorities are put in place out of the real need for order and peace in society.

This responsibility is by no means an easy one. Maintaining harmony in society requires compromises on individual liberty. Humanity has accepted that conditions on our lives will ultimately bring about a freedom which is more durable and sustainable.

It is for this reason that all definitions of individual human rights, which freedoms restrict and dictate state action and non-action, are simultaneously accompanied with state powers to limit and suppress these very rights. A state must ensure freedom of association. On the other hand, such freedom may be completely withheld by the authorities if the expression of such freedom could lead to the destruction of peace and order in society.

Similarly, freedom of expression must be promoted and respected at all levels, but not if the substance of that freedom will lead to the violation of another right, for example, such as certain forms of expression which incite racial hatred.

It is in fact not only the case that states might have to limit the expression of certain rights to safeguard their responsibilities to maintain peace, order, security and moral health in society.

States are also permitted to restrict the manifestation of human rights when this runs counter to the protection of other rights and freedoms.

This is not to say that there exists a hierarchy of rights. Culture and tradition, however, necessitate that the protection of certain rights will, depending on the circumstances, lead to some restriction of others.

States must be given the power and be placed in a position where they can ensure this. However, so long as their intention does not go beyond that of human rights protection, bad faith must be ruled out.

It is moreover not only states who are responsible to work at maintaining this balance. Individuals are also endowed with such a duty.

Article 17 of the European Convention on Human Rights (ECHR) provides: "Nothing in this Convention may be interpreted as implying for any state, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

Article 18 complements this article by providing: "The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed."

Thus, in one count, the ECHR reinforces the idea that states may only limit the expression and manifestation of human rights and fundamental freedoms if this is done for an accepted and legitimate common good.

On the other hand, these two articles also reaffirm a state's powers to suppress the respect and protection of certain rights when such expression runs counter to the general objective of human rights respect and protection.

Article 17 is the only article which not only provides individuals with the right to take action against an allegedly defaulting state. It also provides states with a right of action and defence against individuals and groups.

The European Court held in KPD v FRG (1957) that the aim of this article is "to protect the rights enshrined in the Convention by safeguarding the free functioning of democratic institutions ..." It therefore protects a state against the threat of totalitarianism, especially when a state can find itself in difficulty to justify its interference with individual rights.

Concurrently, it allows states to take action against individuals or groups when the authorities believe that such an individual or group is manipulating his/their Convention rights in a subversive manner. Thus, the European Court argued in Lawless v Ireland (1961) that the objective of Article 17 was to make it impossible for individuals to take advantage of Convention rights, especially when their objective is that of destroying for others the enjoyment of the same Convention rights.

Thus Article 17 represents a tangible manifestation of the 'rule of law' through which the powers of a state are controlled while re-enforced in case there arises a situation where the maintenance of democratic and just principles could prove difficult.

To this extent, it reflects the Council of Europe's vision manifested in the ECHR's Preamble.

Article 18, on the other hand, supplements Article 17 by stressing the importance that human rights limitations and restrictions by states must not go beyond the reasons envisaged by the Convention. The European Court is equipped with the power granted by the ECHR to analyse and determine whether a state is acting in good faith when it justifies its interferences. Article 18 highlights and strengthens this safeguard.

However, Article 18 may never be invoked on its own. As the European Court argued in Kamma v Austria (1974), Article 18 is to be read as an integral part of all the various limitation clauses of the Convention.

Moreover, Article 18 may never have any application or relevance where the right concerned is not subject to restrictions, such as the freedom from torture or inhuman or degrading treatment or punishment, for example.

Thus, one might look at Articles 17 and 18 of the European Convention as umbrella articles providing for the overall protection of all the Convention rights and freedoms. They are articles which may be used to either reinforce the protection of the various rights and freedoms, or as a protection or justification by states for their limitations by them of certain rights and freedoms, when their interferences are not prima facie legitimate.

Both articles are on the same count protectors of democratic principles: individuals must be protected from abusive, arbitrary, mala fide state action.

On the other hand, states must be given the power to run their duties effectively and efficiently, ultimately for the better protection of all citizens.