Comment by troad
1 day ago
One of the reasons international human rights law is so worthless in actual practice, is that half of it is framed like this. "Everyone has the right to X, except as duly restricted by law." Cool, so that's not a right at all then.
Ditto the Canadian Charter of Rights and Freedoms, with its 'notwithstanding' clause. (Though they're presently litigating over that, so we'll see what happens!)
Any constitution or human rights instrument full of exemptions, 'emergency powers', 'notwithstanding' clauses, or 'states of exception' is not worth the paper it's written on.
Every contract I have to agree to these days has a "valid until unilaterally invalidated" clause. It feels like we're all just going through the motions.
That's why countries like Austria have enshrined the Human Rights Charter into constitutional law, meaning only other law at constitutional rank could potentially conflict with such clauses. You can get your own country to do it, too.
That is in fact the only way most laws work: freedom of movement, except if you’re arrested and detained in accordance with law. Freedom of speech except when you are falsely yelling fire in a crowded theater or slandering someone. In general all rights have exceptions carved out by law. And any way you carve that exception out (eg to cover those convicted of crimes) can be twisted by a legislature or judicial body that wants to act in bad faith.
(That’s not to say laws shouldn’t make a better attempt to circumscribe exceptions)
You're fuzzing the crucial distinction between well defined and narrowly tailored exemptions, which are of course normal, and these exemptions, which are complete blank cheques that effectively neuter the rule they attach to.
No laws are absolute, some laws are more holes than cheese, but a law that says "A government must not punish you for doing X, except in accordance with duly passed criminal laws that make X illegal" is almost entirely pointless. It exists solely to make people feel fuzzy when reading the first half of the sentence, which is the only part you'll ever hear quoted, while not actually impeding anything a government may wish to do to you. This is intentional. Those carte blanche exemptions do not consistently appear across international human rights treaties by some accident.
And then they laugh at naïve engineers who express hopes that laws can be a proper formal system.
Even if the law included the literal phrase "Congress shall make no law" or "shall not be infringed", there would still be carve-outs and exceptions deemed acceptable and non-infringing because at the end of the day it's the government, and they'll do what they want, because who exactly is going to stop them?