A/HRC/22/71
23.
Although some rights and freedoms, such as the prohibition on torture, are absolute,
others may, in certain circumstances, be restricted. For those that may be restricted by State
action, as explained by the treaty bodies, the essence of the right must be preserved.
Restrictions may not “put in jeopardy the right itself”. 26 The right is the norm and the
restriction is the exception. The Committee on Economic, Social and Cultural Rights
emphasized that “the Covenant’s limitation clause, article 4, is primarily intended to protect
the rights of individuals rather than to permit the imposition of limitations by States”.27
Furthermore, restrictions may never violate other rights guaranteed under international law,
including the right to equality and non-discrimination, on any grounds.
24.
With regard to freedom of movement, the Human Rights Committee stated, in its
general comment No. 27, paragraph 14, that restrictive measures must conform to the
principle of proportionality; they must be appropriate to achieve their protective function;
they must be the least intrusive instrument among those which might achieve the desired
result; and they must be proportionate to the interest to be protected.
25.
Freedom is therefore closely linked with both dignity and equality; it is an essential
quality to the pursuit by each individual of his or her aspirations and self-fulfilment, in
dignity and rights, free from unjustifiable interference by the State or by other actors.
D.
Responsibility
26.
According to the norms of international law, the notion of responsibility refers
primarily to the State. The State is responsible for the promotion, protection and fulfilment
of all human rights for all persons. For example, the Vienna Declaration and Programme of
Action emphasizes “the responsibilities of all States, in conformity with the Charter of the
United Nations, to develop and encourage respect for human rights and fundamental
freedoms for all”. The Committee on the Rights of the Child described the responsibility of
the State party as “the primary duty-bearer for the realization of the rights guaranteed under
the Convention”.28 While the Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally Recognized Human
Rights and Fundamental Freedoms recognizes the right and the responsibility of
individuals, groups and associations to promote respect for and foster knowledge of human
rights and fundamental freedoms at the national and international levels, it stresses that “the
prime responsibility and duty to promote and protect human rights and fundamental
freedoms lie with the State.”29
27.
In general, the responsibility to guarantee human rights imposes three levels of
obligations: to respect, to protect and to fulfil rights. 30 States bear the responsibility to
ensure that private actors do not impair rights. The Committee on the Elimination of
Discrimination against Women noted that, under general international law and specific
human rights covenants, States may also be responsible for private acts if they fail to act
with due diligence to prevent violations of rights or to investigate and punish acts of
violence, and for providing compensation. 31 In the case of A.T. v. Hungary, the Committee
found that Hungary had violated the rights of a woman who had been subject to repeated
26
27
28
29
30
31
8
See Human Rights Committee general comments No. 34, para. 21, and No. 31, para. 6. See also
E/CN.4/1984/4, annex.
General comment No. 14, para. 28.
CRC/C/NGA/CO/3-4, para. 23.
General Assembly resolution, 53/144, annex, preamble.
Committee on Economic, Social and Cultural Rights, general comment No. 16, para. 17.
General recommendation No. 19, para. 9.
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