I Book Review: Limitation of Rights – A Study of the European Convention and the South African Bill of Rights
| DOI | 10.1177/016934410702500213 |
| Date | 01 June 2007 |
| Published date | 01 June 2007 |
| Subject Matter | Part D: DocumentationI Book Review |
Documentation
378 Intersentia
and Canada one can only a gree with the authors that there are very good reasons for
reintroducing the ess ence of these rights in both countr ies.
Gerhard van der Schy , Limitation of Rights – A Study of the European Convention
and the South Africa n Bill of Rights, Wolf Legal Publishers, Nijmegen, 2005, x iv +
369 p., ISBN: 90–5830 –133–7*1
With this monograph, Van der Schy , ha s managed to make valuable contributions to
the doctrina l and theoretical discourse on t he fund amental question of limitation of
rights in unique comparat ive perspectives. e book undertake s careful compari son of
both judici al app roache s follow ed by Sou th Af rican nation al cou rts a nd the E urope an
Court of Human Rig hts (ECtHR) in relation to issues of limitations.
e book consists only of three chapters. Chapter 1 dea ls with terms of reference
in a succinct manner wh ile Chapter 2 proposes two models of limitations that can be
identi ed in the approach followed by South Africa n courts and the ECtHR. Indeed,
the vast majority of disc ussions are contained in Chapter ree, which is comprised of
Section A that exa mines what the author calls t he ‘First Stage of Inquiry’ and Se ction
B that analyse s the ‘Second Stage of Inquiry’.
e author identi es two di erent approaches to human rights clauses: what he
calls the one-st age model of inquiry on one hand; and what is termed as the t wo-stage
inquiry. According to the author, the former refers to exam inations of interference
without reliance on a lim itation clause. e other, the two-stage model is typi ed
by the so-cal led limitation or clawback clauses at tached to rights and freedoms. e
second stage of query tur ns to the question whether such interference can be just i ed
under a limitation clause. is second stage inquir y has generated many important
interpretive devices a nd principles tailored to address t he question of legitimacy.
e author consistently highlights one of his underlying assumptions that the
constitutional rev iew can be best served by the two-st age model of inquiries based on
the wide interpretation of the sc ope of protection of rig hts.
As the author explai ns (pp. 14–15), the structure of the Europea n Convention on
to which the parameters of t he protection of rights set out in the rst pa ragraph
of certain provisions a re followed by the limitation clause embodied i n the second
paragraph. e two-pronged test is most aptly exempli ed in Articles 8–11 of the
ECHR. As the author notes, the t wo-stage model is also operative in relation to rights
subject to implied lim itations, such as the right of access to cour t under Article 6, the
right to education under Art icle 2 of the First Protocol, and the rig ht to election under
Article 3 of the First P rotocol.
* Yutaka Arai, Se nior Lecturer in Int ernational Law, University of Kent , United Kingdom.
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