National Security and Constitutional Limits: When Can States Lawfully Curtail Rights Under International Law?

National security and constitutional limits on fundamental rights under international law

The relationship between national security and fundamental rights represents one of the most enduring tensions in constitutional and international law. While States possess an inherent responsibility to preserve public order and protect the life of the nation, international legal systems insist that this responsibility be exercised within defined constitutional limits. This article examines the circumstances under which a State may lawfully curtail rights in the name of national security under international law. It explores the distinction between permissible limitations and exceptional derogations, the legal threshold for declaring a public emergency, the governing principles of legality, necessity, and proportionality, and the absolute protection afforded to non-derogable rights. Drawing upon international jurisprudence and normative frameworks, the article argues that national security is not a discretionary justification but a legally constrained concept subject to rigorous scrutiny. Ultimately, international law seeks not to weaken State authority, but to ensure that security measures reinforce rather than erode the rule of law.

I. Introduction

The assertion of national security has historically been one of the most powerful justifications for State action. From constitutional suspensions to emergency regulations, States have repeatedly invoked security imperatives to justify limitations on civil liberties. International law does not deny the legitimacy of such concerns. On the contrary, it explicitly recognizes that no legal system can function without mechanisms to respond to existential threats. However, international law fundamentally rejects the notion that national security operates outside or above law.

The core question addressed by this article is not whether States may curtail rights, but under what legal conditions such curtailment becomes permissible. The international legal order treats this issue as a constitutional problem rather than a political one. Security measures are evaluated not by their declared purpose alone, but by their conformity with established legal principles.

This article adopts a purely legal and jurisprudential approach. It avoids political narratives, State-specific practices, or regional controversies, and instead focuses on the normative structure developed by international human rights law. By examining treaty provisions, interpretive principles, and judicial standards, it seeks to clarify when national security measures fall within the bounds of legality and when they cross into unlawful repression.

II. National Security as a Legal Concept in International Law

National security occupies a recognized but carefully circumscribed place within international law. It is acknowledged as a legitimate interest that may justify restrictions on certain rights, but it is not defined expansively or left to unilateral interpretation.

International instruments consistently treat national security as a legal concept subject to objective assessment, not as an open-ended political discretion.

The legal understanding of national security focuses on the protection of the population, territorial integrity, and the constitutional order from serious threats. It does not extend to the suppression of dissent, the elimination of political opposition, or the preservation of governmental authority for its own sake. Jurisprudence has repeatedly emphasized that internal disagreement, public criticism, or peaceful protest cannot, by themselves, be equated with threats to national security.

International law therefore requires States to demonstrate a rational connection between the measure adopted and the security threat identified. The invocation of national security must be accompanied by evidence, contextual analysis, and legal justification. Mere assertions or speculative risks do not satisfy this standard.

III. Limitation Clauses: Curtailing Rights within the Normal Constitutional Order

Many fundamental rights under international law are not absolute. Instruments governing civil and political rights permit limitations on specific freedoms, provided that such limitations meet strict criteria. These limitation clauses reflect the understanding that rights must coexist with competing societal interests, including security and public order.

However, international law imposes cumulative conditions for lawful limitation. First, the restriction must be prescribed by law. This requirement ensures foreseeability and prevents arbitrary interference. Second, the restriction must pursue a legitimate aim, such as national security or public safety. Third, it must be necessary in a democratic society, a standard that incorporates proportionality and reasonableness.

The necessity requirement is particularly significant. It demands that restrictions respond to a pressing social need and that the interference with the right be no greater than required. Courts and monitoring bodies consistently reject measures that are overly broad, indefinite, or indiscriminate. The fact that a measure serves a security purpose does not, in itself, render it lawful.

Limitation clauses thus function as constitutional balancing tools. They allow States to regulate rights while ensuring that such regulation remains legally accountable and proportionate.

IV. Derogation: Exceptional Suspension of Rights in Times of Emergency

Derogation represents the most extreme form of rights curtailment recognized under international law. Unlike limitations, which operate continuously, derogations are permissible only during exceptional circumstances. International law allows States to temporarily suspend certain obligations when faced with a public emergency threatening the life of the nation.

The legal threshold for derogation is deliberately high. An emergency must be actual or imminent, affect the entire population, and threaten the organized life of the community. Economic hardship, political instability, or widespread dissent do not automatically meet this standard. The concept of emergency is interpreted restrictively to prevent its misuse.

Derogation is not self-executing. States must formally declare the emergency and comply with procedural obligations, including notification to relevant international bodies. They must also specify the scope of measures adopted and the rights affected. This transparency requirement reinforces the temporary and exceptional nature of derogation.

Importantly, derogation does not permit unrestricted power. Even during emergencies, States remain bound by principles of necessity, proportionality, and non-discrimination.

V. The Principle of Legality

Legality is the cornerstone of lawful rights restriction. International law insists that any curtailment of rights must be grounded in law that is accessible, precise, and foreseeable. This requirement applies equally to limitations and derogations.

Vague or overly broad legal provisions granting unfettered discretion to authorities fail the legality test. Laws must clearly define the conditions under which powers may be exercised, identify the competent authorities, and provide safeguards against abuse. Emergency regulations enacted without legislative oversight or constitutional authorization raise serious legal concerns.

The principle of legality also encompasses procedural regularity. Executive action must conform to constitutional processes, and deviations from ordinary legal frameworks must be justified by necessity and temporality. Legality thus functions as a structural restraint on emergency governance.

VI. Necessity and Proportionality as Substantive Limits

Necessity and proportionality form the substantive core of international review of security measures. These principles ensure that even lawful objectives are pursued through lawful means.

Necessity requires that the measure address a real and pressing threat. It excludes speculative, preventive, or convenience-based restrictions. Proportionality demands a rational relationship between the measure and the objective pursued, as well as minimal impairment of rights.

International jurisprudence emphasizes that measures affecting large segments of the population require especially compelling justification. Blanket restrictions, mass suspensions of civil liberties, or prolonged emergency regimes are viewed with heightened scepticism.

The proportionality analysis also considers the duration of measures. Temporary restrictions may be justified in acute situations, but prolonged or indefinite measures undermine the constitutional balance and violate international standards.

VII. Non-Derogable Rights and Absolute Norms

One of the most significant contributions of international law is the recognition that certain rights are inviolable. These non-derogable rights remain protected even during public emergencies.

They include the prohibition of torture and cruel, inhuman, or degrading treatment; the prohibition of slavery; the principle of legality in criminal law; and the recognition of legal personality. These protections reflect fundamental values that cannot be subordinated to security considerations.

The absolute nature of these rights underscores a central principle of international law: human dignity is not contingent upon stability or order. Violations of non-derogable rights are unlawful under all circumstances and may give rise to international responsibility.

VIII. Procedural Obligations and International Oversight

International law does not rely solely on substantive standards. It also imposes procedural obligations designed to ensure transparency and accountability. States invoking emergency powers must formally notify relevant international mechanisms, specify the legal basis of their actions, and justify the necessity of the measures adopted.

International oversight bodies play a constitutional role at the supranational level. Their function is not to replace domestic institutions, but to ensure that emergency powers remain consistent with international obligations. Failure to comply with procedural requirements weakens the legal validity of derogations and invites international scrutiny.

IX. Judicial Review and the Rule of Law

The continued operation of judicial review is a defining feature of lawful emergency governance. International jurisprudence consistently holds that courts must remain accessible, even during crises. The suspension of judicial remedies or the exclusion of certain actions from review undermines the rule of law.

Judicial oversight serves multiple functions. It ensures compliance with legality, assesses necessity and proportionality, and provides remedies for abuse. The existence of emergency powers does not negate the judiciary’s role; rather, it heightens its importance.

International law thus rejects the notion that emergencies justify rule by decree. The rule of law must adapt, but it cannot disappear.

X. Temporal Limits and the Prevention of Normalization

A recurring concern in international jurisprudence is the normalization of emergency powers. Measures adopted as temporary responses often risk becoming permanent features of governance.

International law addresses this risk by requiring continuous review of necessity. States must periodically reassess whether conditions justifying emergency measures still exist. Once the emergency ends, the legal basis for derogation collapses.

Prolonged emergency regimes without meaningful review are incompatible with international standards. The persistence of exceptional measures beyond necessity constitutes an independent violation, regardless of their original justification.

XI. Freedom of Expression and Assembly under Security Claims

Freedom of expression and peaceful assembly occupy a central place in international constitutional law. These rights enable public participation, accountability, and democratic discourse. Consequently, restrictions on these freedoms in the name of security attract strict scrutiny.

International jurisprudence distinguishes between incitement to violence and peaceful expression of dissent. Measures targeting the latter under the pretext of security are generally viewed as disproportionate. The suppression of criticism, protest, or political debate undermines the very constitutional order that security measures purport to protect.

The protection of these freedoms during periods of tension serves as a test of a legal system’s commitment to constitutionalism.

XII. National Security and the Burden of Justification

A consistent theme in international law is the allocation of the burden of proof. When States restrict rights in the name of security, the burden lies with them to justify their actions. This justification must be legal, factual, and proportional.

International bodies do not presume bad faith, but neither do they accept assertions at face value. The requirement of justification reinforces the principle that security measures are exceptions, not norms.

XIII. Conclusion

International law does not treat national security as a carte blanche for rights restriction. Instead, it constructs a constitutional framework that allows States to respond to genuine threats while preserving the rule of law. Lawful curtailment of rights is conditioned upon legality, necessity, proportionality, temporality, and respect for non-derogable norms.

The jurisprudence reveals a central insight: security and rights are not opposing values, but mutually reinforcing ones. A State that abandons constitutional limits in the name of security ultimately undermines both. Conversely, a State that responds to threats through lawful, proportionate, and accountable measures strengthens the legitimacy of its authority.

International law thus offers not a rigid formula, but a disciplined approach. It demands that even in moments of crisis, power remain bound by law, and that the protection of the nation not come at the expense of the legal order that defines it.

Also refer:

1. International Covenant on Civil and Political Rights (ICCPR), adopted 16 December 1966, entered into force 23 March 1976, 999 UNTS 171, arts 2, 4, 19, 21, 22.

2. International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted 16 December 1966, entered into force 3 January 1976, 993 UNTS 3.

3. Universal Declaration of Human Rights (UDHR), UN General Assembly Resolution 217 A (III), 10 December 1948, arts 3, 5, 7, 19, 20.

4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), adopted 10 December 1984, entered into force 26 June 1987, 1465 UNTS 85.

5. Vienna Convention on the Law of Treaties (VCLT), adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331, arts 26, 27, 31.

6. Human Rights Committee, General Comment No. 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11 (2001).

7. Human Rights Committee, General Comment No. 34: Freedoms of Opinion and Expression (Article 19), UN Doc CCPR/C/GC/34 (2011).

8. Human Rights Committee, General Comment No. 27: Freedom of Movement (Article 12), UN Doc CCPR/C/21/Rev.1/Add.9 (1999).

9. Human Rights Committee, General Comment No. 31: The Nature of the General Legal Obligation Imposed on States Parties, UN Doc CCPR/C/21/Rev.1/Add.13 (2004).

10. Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, UN Doc E/CN.4/1985/4, Annex (1984).

11. Lawless v Ireland (No 3) (1961) 1 EHRR 15 (European Court of Human Rights).

12. The Greek Case (1969) 12 YB ECHR 1 (European Commission of Human Rights).

13. Ireland v United Kingdom (1978) 2 EHRR 25 (European Court of Human Rights).

14. Aksoy v Turkey (1997) 23 EHRR 553 (European Court of Human Rights).

15. A and Others v United Kingdom (2009) 49 EHRR 29 (European Court of Human Rights).

16. Brannigan and McBride v United Kingdom (1993) 17 EHRR 539 (European Court of Human Rights).

17. Al-Jedda v United Kingdom (2011) 53 EHRR 23 (European Court of Human Rights).

18. Mukong v Cameroon, Communication No. 458/1991, UN Doc CCPR/C/51/D/458/1991 (1994).

19. Silva v Uruguay, Communication No. 34/1978, UN Doc CCPR/C/12/D/34/1978 (1981).

20. Marques de Morais v Angola, Communication No. 1128/2002, UN Doc CCPR/C/83/D/1128/2002 (2005).

21. Faurisson v France, Communication No. 550/1993, UN Doc CCPR/C/58/D/550/1993 (1996).

22. International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc A/56/10 (2001), arts 40–41.

23. International Court of Justice, Questions relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment, ICJ Reports 2012, p 422.

24. International Court of Justice, Barcelona Traction, Light and Power Company Limited (Second Phase), Judgment, ICJ Reports 1970, p 3.

25. A Gross and F Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press 2006).

26. D Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press 2006).

27. O Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’ (2003) 112 Yale Law Journal 1011.

28. T Buergenthal, ‘To Respect and to Ensure: State Obligations and Permissible Derogations’ in L Henkin (ed), The International Bill of Rights (Columbia University Press 1981).