The anatomy of a valid waiver of human rights

Abstract

This study aims to bring greater clarity to understanding the conditions of a valid waiver of human rights in international jurisprudence, considering its increasing presence in international litigation. It elaborates that international jurisprudence recognizes two categories of waivable and nonwaivable rights and two types of explicit and tacit waivers. It discusses that procedural rights play an important role in shaping the understanding of waivers and emphasizes on the need for a thorough evaluation of circumstantial evidence. The main part of the article deconstructs a formula that outlines certain conditions for the validity of waivers applicable to both procedural and substantive rights, providing a comprehensive framework for understanding waivers within the realm of international human rights law.

1. INTRODUCTION

In 2011, Leila Esfandyari, an Iranian female mountain climber, tragically lost her life¹ shortly after reaching the summit of Gasherbrum II, the 13th highest mountain in the world, standing at 8035 m.² No search or rescue missions were followed to save her life or retrieve her body. Search and rescue efforts at mountainous elevations exceeding 7000 m are highly challenging, posing responders with extreme danger. However, Leila had expressed on numerous prior occasions that should a tragic incident happen to her, no one should risk their lives to rescue her, and that she prefers her body to be left on the mountain, never to be brought back. Following the incident, her family released a statement confirming their intention to honour her wishes, deciding to leave her body on the mountain, where ‘the majestic Karakoram mountains would become her eternal view’.³ From a legal perspective, what this pioneering Iranian female climber expressed was her free and unambiguous decision to relinquish the rights she otherwise could have claimed, such as the right to health, physical integrity, or life. Can individuals, partially or entirely, waive their rights under international human rights law (IHRL)? If human rights can be waived, what rights? In what circumstances?

A waiver of rights, within the context of this article, refers to a situation where an individual, as the subject of IHRL, relinquishes protection under a specific right, either explicitly or implicitly. Evaluating the conditions of a valid waiver of human rights is important and timely for a few reasons. Firstly, with the increasing frequency of human rights waivers in international proceedings,⁴ there are still conceptual ambiguities and practical inconsistencies that render the theory ‘incomplete’ in this regard.⁵ Moreover, most prior research only engaged waivers regarding specific rights, and over the past decade, this issue has rarely been the subject of academic research.⁶

The question of waivers can be inspected from the general doctrinal and philosophical perspectives involving the ‘will theory’, which believes in the ability to waive rights, and the ‘interest theory’, which instructs that rights should not be waived to protect the interests of individuals.⁷ This article does not delve into doctrinal debates, which some consider a battle that cannot be won.⁸ Instead, its focus will be on international jurisprudence, trying⁹ to carve out a uniform formula to be applied in all cases of waiver of procedural and substantive rights, regardless of any distinctions based on an explicit waiver or a waiver by invoking consent¹⁰ and regardless of ‘who’¹¹ is invoking the waiver. The jurisprudence of the European Court of Human Rights (ECtHR) will be given specific attention, not only due to the Court’s standing in the international human rights framework¹² but also due to its substantial engagement with the question of waivers.¹³ This article also extends the research to the jurisprudence of the United Nations Treaty Bodies (UNTBs) and will discuss one case from the International Court of Justice (ICJ).

One exception to this analysis will be the waiver of the right to life, which has proven to be more contentious both in scholarly discourse¹⁴ and before the human rights courts.¹⁵ A waiver of the right to life, despite some overlaps with conditions discussed here, appears to be subject to a distinct set of considerations based on public interest and human dignity that fall outside the scope of this study.

This article begins in Section 2 by offering an overview of the background of the debate. Section 3 provides some general observations by distinguishing between waivable and nonwaivable rights, explicit and implicit waivers, discussing the role of procedural rights in understanding waivers, and the importance of circumstantial evidence in any given case. Lastly, Section 4 deconstructs a test to be applied for waiver of both procedural and substantive rights before coming to some conclusions in Section 5.

2. BACKGROUND OF THE DEBATE

The intersection of IHRL with the concept of waivers reveals a nuanced debate about the balance between individual autonomy and the integrity of foundational human rights principles, or, as Besson described it, ‘a collision between self-determination to waive rights and state paternalism to protect individuals’.¹⁶ Some believe that human rights are not waivable since they are inalienable.¹⁷ Some believe if a right cannot be waived, then it should not be called a ‘right’.¹⁸ Some believe that waiver of human rights, even in the case of procedural rights, should not be allowed,¹⁹ and some argue that even a conditional waiver is acceptable.²⁰

What further complicates the debate is that, on one hand, IHRL recognizes the autonomy of individuals to exercise their rights and freedoms.²¹ Sometimes, human rights treaties recognize exceptions to certain provisions, such as allowing restrictions on freedom of expression.²² Aside from that, jurisprudence not only allows waivers but also, at times, recognizes their potential benefits for facilitating the settlement of disputes.²³ On the other hand, concerns over waivers of rights are not rare. A waiver may potentially conflict with the foundational philosophies, principles, and purposes of IHRL. For example, trial waivers that replace the right to a fair trial with plea bargaining were criticized because they take away the chance of solid investigations.²⁴ Sometimes, convicts have waived their right to appeal in exchange for the reduction of the death sentence to life imprisonment.²⁵ Also, recourse to alternative dispute resolution mechanisms such as mediation or arbitration, which are considered a waiver of the right to access to court, has been compared to plea bargains, which, while helping reduce the docket of courts, might do so at the expense of justice.²⁶ The conflict between a waiver and IHRL norms might be more visible, realizing that certain rights are afforded the highest level of protection recognized as nonderogable.²⁷ If a state endorses or facilitates an individual’s waiver of a nonderogable right (eg endorsing someone’s consent to be tortured), it could be seen as de facto derogation, since the state would be failing in its obligation to protect and guarantee that right.

Such competing debates call for a closer look at the issue, which has already received some academic attention. However, the latest studies on the conditions of a waiver mostly date back to more than a decade ago.²⁸ Discussions over waivers are usually limited to a few paragraphs in articles substantially discussing specific rights or topics,²⁹ solely focused on the ECtHR’s jurisprudence.³⁰ For example, concerning the right to privacy,³¹ right to democracy,³² labour rights,³³ waivers of children’s rights to education and nondiscrimination by parental consent,³⁴ waivers of private remedial processes, right to file future claims in a court of law, the right to compensation for victims of business-related human rights violations,³⁵ and waiver of procedural rights in the context of arbitration,³⁶ or a criminal context.³⁷ Some studies have engaged the issue from a more general perspective. For instance, Calfich has explored the conditions of a valid waiver in ‘general international law’ and the European system,³⁸ Besson offered a blend of doctrinal and practical insights into the debate,³⁹ and Van Drooghenbroeck considered waivers as an element in debates over conflict of rights at the ECtHR.⁴⁰ Of all the works available, Aall’s landmark trilogy on the waiver of rights in the European system stands out as the most comprehensive study. In three separate articles, he thoroughly discussed many aspects of the waiver of rights.⁴¹

What necessitates a fresh examination of the issue is that, since the previous studies, one can identify an evolution in international practice contributing to a better understanding of the conditions of a waiver. The question of waivers is more visible in case law⁴² and has appeared in several key cases before the ECtHR, particularly in the context of arbitration.⁴³ Moreover, the ECtHR appears to have introduced a novel concept not discussed in prior research: the ‘knowing and intelligent standard’.⁴⁴

Furthermore, this research broadens the scope of the study to encompass the jurisprudence of UNTBs and one case from the ICJ. The UNTBs exert a significant influence on the IHRL discourse.⁴⁵ Nevertheless, navigating UNTBs’ jurisprudence contained challenges. While waiver-related questions are quite common before UNTBs, comprehensive examinations are rare. Often, cases are found inadmissible.⁴⁶ Once the case proceeds to the merits, the question of waiver receives insufficient or no attention.⁴⁷ For example, in Oleg Volchek, where the author contended that he did not consent to be absent during the proceedings, the Human Rights Committee (HRC) did not provide any analysis about waivers despite finding a violation of Article 14 of the International Covenant on Civil and Political Rights (ICCPR).⁴⁸ Likewise, in another case where the state claimed a waiver of the right to be assisted by a lawyer⁴⁹ and the author alleged lack of free consent,⁵⁰ the HRC did not examine the question of waivers despite acknowledging the lack of legal representation.⁵¹ Despite such shortcomings, the jurisprudence of UNTBs still contributes to this debate, as exemplified by the below discussions.

Against this background, this article will next provide some overarching observations that can offer better context for the ensuing discussion.

3. THE CONTOURS OF THE DEBATE OVER WAIVERS

3.1. Waivable and nonwaivable rights

There is no explicit prohibition on waiving rights in international human rights treaties,⁵² a stance corroborated by international practice.⁵³ However, not all rights are waivable. International human rights treaties designate certain rights as nonderogable.⁵⁴ Often, such status is due to the importance of rights for the public interest and maintaining a minimum standard of human dignity and justice, which also impacts the possibility of a waiver.⁵⁵ Even concerning procedural rights, the ECtHR has clarified that only some aspects of the right to access a court can be waived, and for example, independence and impartiality of the tribunal or a fair hearing are subject to strict scrutiny⁵⁶ and will be scrutinized notwithstanding any alleged waiver.⁵⁷

Therefore, not all waivers are permitted. Although jurisprudence provides some clarification in this regard, however, there is no clear guideline on what rights fall into what category. The lack of uniform guidelines on this issue leaves any determination to context-specific considerations and increases the potential for varied interpretations and applications. Be that as it may, if a waiver is found to be permissible,⁵⁸ then its validity is subject to certain conditions, as discussed below.⁵⁹

3.2. Explicit and tacit waivers

Waivers can be explicit or tacit.⁶⁰ An explicit waiver occurs when the individual expressly acknowledges waiving a right verbally or in writing, for example, by expressly asking not to have a public hearing or a lawyer. Tacit waivers are implied through actions or inactions and thus are more subjective and context-dependent, requiring a careful analysis of surrounding circumstances. Sometimes, inaction or passivity, such as remaining silent, can imply a waiver.⁶¹ For example, the HRC and the ECtHR have confirmed that the right to an oral hearing can be waived by simply not requesting such a hearing.⁶² Also, the HRC has considered that the author’s failure to lodge any complaints with domestic authorities regarding procedural violations serves as a basis for establishing a valid waiver.⁶³ Sometimes, conduct that potentially conflicts with one’s rights can imply a waiver. For instance, including a ‘duty of loyalty’ clause in a contract with a Catholic hospital was argued to constitute a waiver of the freedom of expression when an individual took a stance on abortion-related matters.⁶⁴ While the European Commission rejected a waiver of freedom of expression as such, however, it continued that based on the surrounding circumstances, if the individuals have freely accepted such limitations, then there can be legitimate restrictions on free expression.⁶⁵ Conversely, in another case, the ECtHR upheld that entering into an employment contract per se is not a waiver of the applicant’s right to manifest her religion if the restriction was introduced by her employer at a later date.⁶⁶ In other examples, receiving payments as redress for the nationalization of properties was argued to establish a waiver of the rights over a property,⁶⁷ and posting private information online was argued as an implicit waiver of the right to privacy.⁶⁸

In a rather unusual claim before the HRC, the state argued that the individual waived the right to be present during sentencing by stabbing himself in the heart, claiming his act was a voluntary refusal of this right as he understood the consequences of his actions.⁶⁹ Sports is another area to claim tacit waivers. Involvement in extreme activities that carry the risk of serious bodily harm, like the above example of the Himalayan climber, can be considered a waiver of certain rights.⁷⁰ Also, participation in competitions organized by sport governing bodies can be seen as a form of consent to their regulations, which can entail restrictions on rights such as freedom of expression⁷¹ or the right not to be discriminated based on sex.⁷²

In both the above situations (passivity and contradictory conduct), the notion of ‘consent’ is often invoked to establish a waiver.⁷³ A fundamental question in these cases is whether the individual truly intended to waive a right, ie whether the tacit waiver has been unequivocal. Therefore, the condition of an unequivocal waiver is central to the question of tacit waivers, and as will be further discussed, tacit waivers should only be deemed admissible where the right-holder’s passivity can reasonably and unequivocally be interpreted as waiver.⁷⁴

3.3. The role of procedural rights

Procedural rights play a salient role⁷⁵ in understanding debates over waivers of rights. Procedural rights dominate the docket of international human rights courts and are the most commonly violated aspect in ECtHR judgments.⁷⁶ In one study, all the waiver cases identified by the authors in a criminal context were related to Article 6 of the European Convention of Human Rights (ECHR).⁷⁷ Similarly, in proceedings before the UNTBs, questions of waiver are almost entirely limited to procedural rights, mainly the right to have a defence lawyer in criminal proceedings.⁷⁸ Within the context of procedural rights, questions of waiver often intersect with arbitral proceedings.⁷⁹ The ECtHR considers arbitration a valid waiver of the right to access a court,⁸⁰ which is the most visible dimension of procedural rights.⁸¹ Other aspects include an independent and impartial tribunal established by law, fairness of the process, a public hearing, and the length of proceedings.⁸² Waiver of other issues such as the right to designate an arbitrator when there is a third party’s joinder to arbitral proceedings,⁸³ or waiving, limiting, or expanding the right to judicial review of the arbitral awards⁸⁴ may also become relevant in the context of arbitration. Considering such a multilayered nature, the ECtHR has upheld that an arbitration clause cannot be a waiver of all rights under the ECHR, or even all procedural rights.⁸⁵ Similar to the human rights system, the arbitration treaties also set limits on parties’ freedoms,⁸⁶ since arbitration does not exist in a vacuum and there are limits to what parties can agree to.⁸⁷

Be that as it may, the case law of the ECtHR demonstrates that the conditions for the validity of waivers of procedural rights are of a general character and are equally applicable to other rights of a substantive nature.⁸⁸ For instance, the ECtHR has concluded that the tests for the validity of a waiver of procedural rights apply in the context of other rights such as nondiscrimination and consent to differential treatment.⁸⁹

3.4. Significance of surrounding circumstances

Usually, identifying a valid waiver largely depends on the specific facts and circumstances surrounding a case. Therefore, sometimes, concerning certain rights, the court finds additional safeguards to be assessed. For example, regarding plea bargains, the ECtHR has held that in addition to the knowing, intelligent, and voluntary nature of the plea, ‘the content of the bargain and the fairness of the manner in which it had been reached between the parties must be subject to sufficient judicial review' as well.⁹⁰ Regarding the right to movement, the proportionality of the restriction, regardless of waivers, is important.⁹¹ In one case where the applicant faced restrictions on leaving the country after entering a military contract, the ECtHR, after examining the circumstances, found that the restriction was not related to the aim pursued.⁹² Therefore, the individual circumstances of a particular case can impact how a valid waiver can be established.⁹³

4. THE TEST FOR A VALID WAIVER

Overall, according to the practice of human rights bodies, particularly the ECtHR, for a waiver to be valid from the human rights perspective, it must be given: (i) by the right-holder; (ii) knowingly and intelligently; (iii) freely; and (iv) unequivocally. It must also (v) satisfy minimum safeguards commensurate with the importance of the specific right; and (vi) not conflict with paramount public interests.⁹⁴ These factors will be discussed next in the order they should be evaluated by courts.

4.1. Waiver by the right-holder

Sometimes, third parties are involved in waiving a right. This might be a state waiving the rights of their nationals, for example, by concluding a bilateral investment treaty or by entering into interstate mass settlements for war reparations.⁹⁵ Alternatively, a waiver might be made by a legal guardian for a ward, parents for their children, or worker associations for their members through a collective bargaining agreement.⁹⁶ The waiver of individuals’ rights by the state in the context of reparations for war crimes and crimes against humanity was part of the dispute in the case of Germany v Italy before the ICJ, in which the Peace Treaty between Italy and allied powers included a clause that read: ‘Italy waives on its own behalf and on behalf of its Italian nationals all claims against Germany and German nationals …’.⁹⁷ The majority of the Court deemed it unnecessary to determine whether a waiver by a state can be binding and found such questions to be beyond the scope of the case.⁹⁸ However, the dissenting opinion of Judge Cançado Trindade found such waivers against international public order.⁹⁹ The dissenting opinion read:

A State can waive only claims on its own behalf, but not claims on behalf of human beings pertaining to their own rights, as victims of grave violations of international law. The rights of victims of grave violations of human rights and of international humanitarian law subsist, their vindication cannot be waived by their States, or by States inter se, on their behalf.¹⁰⁰ … Any purported waiver to that effect would be deprived of any juridical effects.¹⁰¹ … This being so, such right to war reparations claims, being recognized well before the end of the Second World War, could not be waived by States in their agreements with other States.¹⁰²

This analysis is relevant to other situations where states waive individual rights within treaties, such as bilateral investment treaties. As Judge Trindade said, ‘[f]undamental human rights are simply not amenable to waivers of their claims by States, by means of peace treaties, of other kinds of treaties, or by any other means’.¹⁰³ In contrast, the Committee on the Elimination of Discrimination against Women (CEDAW), in a case against the Philippines regarding women’s sexual slavery system during World War II, adopted a contradictory approach. CEDAW prioritized state obligations under the 1951 Treaty of Peace with Japan and upheld the validity of the waiver.¹⁰⁴

In cases of waiver of children’s rights by parents or guardians, the best interest of the child is the deciding factor.¹⁰⁵ A more paternalistic approach is visible here, where authorities can play a stronger role in assessing the best interest of a child when it comes to waiving a right,¹⁰⁶ which is a case-by-case decision depending on nonexhaustive factors such as age, sex, level of maturity, experience, emotions, belonging to a minority group, and having a disability, all within a broader social and cultural context.¹⁰⁷ The nature of the right in question, the type of interference, and public interest considerations are also important. Therefore, parents can accept work obligations on behalf of a child for a short period of time,¹⁰⁸ waive their children’s right to bodily integrity when medical intervention is necessary,¹⁰⁹ but cannot waive a child’s right to bodily integrity in cases such as female circumcision,¹¹⁰ or waive their right to privacy by sharing children’s photographs online.¹¹¹ Rights such as nondiscrimination cannot be waived by parents because of their importance to the public interest, as will be discussed.¹¹²

Be that as it may, even regarding the waiver of children’s rights, IHRL still emphasizes the central role of the individual. Therefore, as the child matures, their views should increasingly influence the determination of their best interests, and the authority of parents may fade as the child becomes more knowledgeable, experienced, and understanding.¹¹³ There might be circumstances in which child knowledge and consent are directly required, for example, in a criminal context,¹¹⁴ for receiving medical treatment,¹¹⁵ or for surveillance of child activities.¹¹⁶ Similarly, regarding mentally incompetent persons, the focus will still be on the individual to identify a valid waiver, not their representatives.¹¹⁷ For example, if a treatment is prescribed for such persons, it should be discussed with the patient,¹¹⁸ and be accompanied by the patient’s informed consent.¹¹⁹ The same analysis applies to the waiver of members’ rights by workers’ associations; such associations cannot waive the rights of their members unless each member individually waives a right, meeting the conditions discussed in this article.

All in all, it is the general understanding that only the right-holder has the legal authority to waive a right¹²⁰ and others cannot waive the rights ‘which are not theirs’.¹²¹ Children, mentally incapacitated persons, or members of associations still play a central role in the waiver of their rights. A case-by-case analysis should be conducted to evaluate the personal capability of the right-holder, the complexity of the situation, and the consequences of an alleged waiver.¹²²

4.2. A knowing and intelligent waiver

The knowing and intelligent standard¹²³ was first discussed in 2009 by the ECtHR. This standard is sometimes seen by the ECtHR as the overarching standard in discussing waivers, which covers all the conditions mentioned below.¹²⁴ However, a close examination reveals that this is an independent condition of a valid waiver, which itself contains two separate prongs. The first prong entails ensuring that the individual has been previously informed of the existence of a right, while the second prong necessitates that the individual be capable of reasonably foreseeing the consequences of waiving the right.

Under the first prong, being aware and informed about the existence of a right is a crucial prerequisite for exercising or waiving it.¹²⁵ Therefore, a right can only be waived if one is aware of its existence and what a waiver may entail.¹²⁶ For example, receiving information about the right to legal assistance is crucial to effectively exercising it and knowingly and intelligently waiving it.¹²⁷ Customized and specific information may be necessary for individuals based on their circumstances, the nature of the crimes committed, and the potential punishment involved.¹²⁸ Therefore, if the applicant has not been informed of the right to legal assistance, not requesting a lawyer cannot be considered a valid waiver of the right.¹²⁹ Conversely, being informed of the right and a voluntary statement on its waiver can establish an explicit and unequivocal waiver.¹³⁰ To establish firm knowledge, even the phrasing used to inform individuals of their rights carries significant weight.¹³¹ For example, the ECtHR questioned whether the individual was properly informed by noting that he was not clearly communicated that the right to a lawyer could include a state-appointed lawyer free of charge.¹³²

The second prong of the test requires the individual to be able to reasonably foresee the potential consequences of the waiver.¹³³ While the ECtHR considered this requirement separately much earlier,¹³⁴ starting from 2009, the Court began discussing it under the concept of a knowing and intelligent waiver.¹³⁵ An intelligent waiver may require additional conditions, such as the assistance of a lawyer or an interpreter, and in this way, it can connect with other conditions of a valid waiver discussed here, like ensuring minimum safeguards proportionate to the importance of the right. In one example, the ECtHR asserted that without the assistance of a lawyer, the applicant, who had no professional legal training, could not have reasonably foreseen the consequences of his act in a criminal proceeding¹³⁶ and therefore rejected the validity of the waiver.¹³³ The ECtHR rejected the validity of a waiver concerning witness confrontation because the applicant’s lack of legal expertise and representation hindered their ability to foresee the waiver’s consequences.¹³⁷ Access to an interpreter may also be important in understanding the consequences of a waiver,¹³⁸ and its absence can hinder the ability to foresee the consequences.¹³⁹ The HRC addressed the issue of waiving the right to appeal an expulsion order, where the authors claimed they unknowingly signed a waiver after being misled to believe the document expressed their opposition to the order.¹⁴⁰ The HRC concluded that the author was assisted by an embassy interpreter and therefore capable of understanding the proceedings.¹⁴¹ The ECtHR’s jurisprudence corroborates this approach.¹⁴²

This standard also affects the waiver of rights in the future. In general, waiving present rights holds more validity than waiving future rights, as the consequences of waiving a present right are typically clearer to the individual and there is a possibility that circumstances change in the future.¹⁴³ Thus, the validity of a waiver may diminish over time, especially with the change of circumstances or context.¹⁴⁴ The knowing and intelligent standard has been set by the ECtHR regarding certain rights,¹⁴⁵ such as the right to legal assistance,¹⁴⁶ the choice of lawyer,¹⁴⁷ the right to remain silent, and the right not to self-incriminate.¹⁴⁸ However, this list is not exhaustive, and depending on the nature of the right and the circumstances of a case, it can extend to other rights.¹⁴⁹ Therefore, where the effective implementation of a right hinges on awareness of its existence and its consequences, a waiver cannot be envisioned without such factors. A lack of knowledge of the rights and consequences of a waiver¹⁵⁰ can establish grounds for not recognizing a valid waiver.¹⁵¹

4.3. Free consent

Free consent is perhaps the most fundamental criterion in identifying a valid waiver of human rights. Free consent can even allow severe bodily interferences such as a blood transfusion, an organ donation, or even a medical amputation¹⁵² that otherwise would be prohibited under IHRL.¹⁵³ At least since the early 1980s, the European System has acknowledged the importance of free consent for waivers, saying that rights can be renounced ‘provided that the person’s decision is taken freely and without coercion’.¹⁵⁴ When the waiver is ‘compulsory’—such as in compulsory or forced arbitration—, courts should apply a higher scrutiny standard in applying the necessary guarantees.¹⁵⁵ Therefore, as long as the waiver is voluntary, it is perhaps valid, and for example, signing a voluntary arbitration clause can be viewed as a waiver of specific rights.¹⁵⁶

What proves to be challenging in this regard is identifying situations where consent has been given under duress and coercion. This key task depends largely on circumstantial evidence. For example, arbitration is compulsory when either the law forces the parties to initiate the arbitration¹⁵⁷ or when the bargaining power of one party is significantly higher to force the other party to accept arbitration.¹⁵⁸ One important factor in determining free consent is economic constraint,¹⁵⁹ meaning that the refusal of a waiver results in the loss of essential goods such as the profession of the individual or substantial benefits. In such circumstances, the waiver is deemed to be under significant pressure and is not free.¹⁶⁰ For example, in the context of employment, access to essential goods, or, in other words, ‘bread and butter’, has been considered a condition rendering an arbitration clause compulsory.¹⁶¹

Sport arbitration is the conjunction of economic constraints and power imbalances.¹⁶² The ECtHR distinguished sport arbitration from commercial ones, highlighting that in commercial disputes, at least potentially, the parties can decide freely and are not obliged to accept arbitration to exist and do business, and although choosing arbitration can influence the turnover at a company, it hardly hinders its potential to thrive and excel in its business sector.¹⁶³ However, sport arbitration is compulsory since athletes have no other options if they want to compete, and their only choice is that they must agree to arbitration of the kind set by the sport authorities.¹⁶⁴

A flawed consent can be identified in other contexts. For example, a waiver of rights by entering into a military contract may be found not to be fully consensual,¹⁶⁵ or participation in political life or becoming a public figure restricts some aspects of the right to a private life.¹⁶⁶ Free consent is also questionable where following one remedy requires waiving the right to other remedies, such as when receiving financial compensation from company-created settlement mechanisms requires the victims of human rights violations to waive their right to seek judicial remedies in national courts¹⁶⁷ or when initiating civil proceedings requires waiving the right to pursue criminal proceedings.¹⁶⁸

The voluntary nature of waiving the right to privacy in the realm of digital technologies has also been questioned since such waivers appear less voluntary due to the significant coercion involved in using these technologies.¹⁶⁹ In his study of waiver of the right to privacy under Article 17 of the ICCPR, Sinha concluded that the ‘object and purpose of the covenant would be undermined by permitting the casual or unintentional waiver of a core right simply because many people use digital technologies insecurely’.¹⁷⁰ Related to the right to privacy, the ECtHR has also upheld that requiring transgender individuals to reluctantly undergo treatment or surgery that may lead to sterilization, compromised their consent since it placed individuals in an impossible dilemma by requiring them to waive their right to physical integrity, which forms part of the right to respect for private life, in order to recognize their gender identity.¹⁷¹

In one case, the ECtHR held that: ‘the use of a printed waiver formula may represent a challenge as to ascertaining whether the text actually expresses an accused’s free and informed decision to waive his or her right to be assisted by a lawyer’.¹⁷² Being in detention or under police control per se can also compromise free consent.¹⁷³ If the individual has been subjected to inhuman and degrading treatment by the police, any waiver under such circumstances cannot be free.¹⁷⁴ As the ECtHR elaborated in one case:

the applicant’s immediate statements to the doctor at the end of her police custody … that the police had hit her head, threatened to kill and rape her and had driven their car into her, as a result of which she had fallen unconscious, and her statements to the public prosecutor that she had had to sign the police statements as a result of the violence and coercion on their part, are weighty indications against the conclusion that she had waived her right to a lawyer in accordance with the Convention standards.¹⁷⁵

The ECtHR also found that signing the ‘voluntary return’ form by the individual considering that he was in detention with a view to deportation cannot be a voluntary waiver of the victim’s status.¹⁷⁶ Poor health conditions while in detention in a case where the individual has consented to be placed under house arrest were found to be consent under duress¹⁷⁷ and an invalid waiver of the right to liberty.¹⁷⁸ Signing a waiver while suffering from substance withdrawal under police control with a lack of access to drugs or substitution therapy was also found to compromise consent.¹⁷⁹

Another instance of finding coercion is when the authorities engineered a situation in which the applicant’s process of conviction and imprisonment was expedited in a way that he was not able to effectively exercise his rights, and then his situation was used in exchange for his release and immediate deportation from the country. The Court found the applicant’s situation of being in detention to be a sign of coercion and a forced waiver of rights.¹⁸⁰ Another instance of compromised consent is in a case before the Committee Against Torture when the author claimed coercion in waiving the right to appeal the judgment of the District Court,¹⁸¹ referring to warnings from the state prosecutor that an appeal might result in the complainant’s wife, initially charged with drug offences, not being acquitted on appeal, putting her and their children’s future at risk.¹⁸²

Finally, consent can be revocable. The Committee on Economic Social and Cultural Rights regarding the question of the right of women to waive their consent to the transfer of embryos, has said that not being able to waive the consent is against IHRL.¹⁸³ Similarly, the ECtHR has concluded that the applicant’s prior waiver of the right to legal assistance lost validity after requesting it in the later stages of proceedings.¹⁸⁴ However, the withdrawal of the waiver may not be effective if submitted too late in the proceedings, such as the close of the hearing, due to concerns that it may unnecessarily prolong the proceedings.¹⁸⁵

In conclusion, international jurisprudence underscores the centrality of free consent as the foremost criterion in validating a waiver of human rights. Therefore, when a waiver is willingly and freely accepted, concerns about human rights are alleviated. It is essential to consider a wide range of circumstances to ensure free consent.

4.4. Unequivocal waiver

A waiver, as long as permissible, must be established unequivocally,¹⁸⁶ meaning it must be clear, unambiguous, and unmistakable. Such assessment is required, whether the waiver is compulsory or voluntary, explicit or tacit. A compulsory waiver cannot constitute an unequivocal waiver because of the potential consequences of rejecting the waiver for the individual.¹⁸⁷ A voluntary waiver, is still subject to further evaluation regarding its unequivocal nature.¹⁸⁸ In cases where a waiver is tacit¹⁸⁹ and the individual’s true intent is more likely to be in doubt, an unequivocal waiver finds a more central role.¹⁹⁰ Tacit waivers hinge on the idea that individuals indirectly consent to a waiver by accepting situations that go against those rights.¹⁹¹ For example, informing the individual of his rights to legal assistance and his express agreement¹⁹² was claimed to unequivocally waive rights.¹⁹³ Conversely, accepting payments by the victim’s family to cover funeral expenses was claimed not to establish an unequivocal waiver of the right to seek the truth about her son’s death or to hold the perpetrators accountable.¹⁹⁴ In such situations, waiver cannot be presumed, and ‘clear indications are necessary to infer waiver’.¹⁹⁵ This is where some commentators also highlight confusion.¹⁹⁶ In scrutinizing the unequivocal and unambiguous nature of a waiver, circumstantial evidence plays a key role again. Also, other conditions discussed in this article may contribute to finding an unequivocal waiver. While an exhaustive list cannot be compiled for this purpose and the analysis is largely case-by-case, some examples might be illuminating.

An important factor in identifying an unequivocal waiver is sufficient knowledge essential for exercising a right. In Suovaniemi, where the applicants were indeed aware of the grounds for challenging the arbitrator’s independence and impartiality but did not request a withdrawal, the court found the tacit waiver to be unequivocal.¹⁹⁷ In contrast, in BEG S.P.A., the ECtHR concluded that, in the absence of concrete evidence proving that the applicants were aware of the grounds for challenging the tribunal’s independence and impartiality, the waiver could not be deemed unequivocal.¹⁹⁸ The court also took note of the efforts made by the applicant to challenge the impartiality of the arbitrator, including promptly filing a withdrawal request upon learning about the links between the arbitrator and the other party to establish that the waiver was not unequivocal.¹⁹⁹ Regarding the same issue in Mutu and Pechstein, the ECtHR found the waiver of the first applicant not unequivocal since he previously had challenged the impartiality and independence of the arbitrator during the arbitral proceedings.²⁰⁰ The Court said: ‘[i]t cannot be considered that, by accepting the arbitration clause in his contract … the applicant had unequivocally waived his right to challenge the independence and impartiality …’.²⁰¹ In McGonnell, the ECtHR upheld that since the domestic courts found no issues with independence and impartiality, the applicant’s failure to challenge the issue cannot be deemed unreasonable and is not a valid waiver of his rights.²⁰²

Access to legal assistance is another ground for establishing an unequivocal waiver.²⁰³ In one example, the Court considered that, by requesting the adoption of the summary procedure, the applicants unequivocally and consciously waived their right to obtain the summons and hearing witnesses at trial, considering that they were assisted by lawyers.²⁰⁴

In Corneschi, the state claimed that signing an Annex to the contract regarding security clearance procedures waived an employee’s right to receive reasons for any decisions regarding her clearance situation. However, the ECtHR ruled that since the Annex did not detail procedures for revoking an existing clearance, it did not unequivocally waive the applicant’s right to a reasoned decision.²⁰⁵ Concerning a military contract that created restrictions for the movement of the applicant, the Court found that the waiver has not been unequivocal.²⁰⁶ In Tabbane, a case of an explicit waiver, the ECtHR found that the wording of the contract unequivocally waived the right to access a public court, considering that it was freely accepted.²⁰⁷ The relevant clause in the contract read:

Neither … [party] shall be entitled to commence or maintain any action in a court of law upon any matter in dispute arising from or concerning this Agreement or a breach thereof except for the enforcement of any award rendered pursuant to arbitration under this Agreement. The decision of the arbitration shall be final and binding and neither party shall have any right to appeal such decision to any court of law.²⁰⁸

In another case, the applicant’s failure to repeat the request for a public hearing before subsequent courts, following the initial plea before the administrative court, did not constitute an unequivocal waiver of the right to a public hearing.²⁰⁹ Regarding the right to respect one’s home, the ECtHR upheld that simply opening the door for the police cannot be a valid waiver of the right to respect one’s home and cannot be sufficient to infer an authorization to enter the home.²¹⁰ In M.S. v Sweden, the ECtHR examined the transfer of one’s medical records from one public authority to another without the individual’s consent. The central question was whether the individual, by seeking damages, waived her right to data confidentiality. The court concluded that, in addition to the victim’s action to obtain damages, the data transfer was contingent on some other factors beyond the individual’s control, and therefore, the compensation claim alone did not unequivocally waive her right to privacy.²¹¹

In a case in front of the CEDAW, female environmental and social justice activists alleged violations of their rights based on being deceived into entering long-term relationships with undercover police.²¹² Later, a settlement agreement was concluded between the victims and the state to provide compensation and issue a public apology.²¹³ The Committee decided that the settlement agreement was not manifestly inequitable or the result of undue pressure or coercion owing to onerous terms and considered the agreements an unequivocal waiver of the right to submit a communication to the Committee on the same matter.²¹⁴

Sometimes a combination of factors needs to be assessed. In Akdağ, the ECtHR explained:

the applicant’s undisputed signature on the statement form and on the form concerning the rights of suspects and accused …, his handwritten note on another record that he would not wish to see his family while in custody, and more importantly the trial court’s scrupulous examination of the applicant’s police statements and its subsequent refusal to convict the applicant in respect of six offences that were based solely on his police statements. In the light of those factors, the Court, after carrying out a holistic assessment of the circumstances of that case, with an emphasis on the trial court’s scrutiny of the applicant’s allegation that he had been denied legal assistance when giving statements to the police, and after having observed that there had been nothing in the proceedings to suggest that the applicant’s waiver of legal assistance while in police custody had not been free and unequivocal, concluded that the waiver had been valid ….²¹⁵

In other instances, the ECtHR considered the two prior convictions of the applicant to conclude he could understand the consequences of waiving the right to legal assistance and ruled on the validity of the waiver.²¹⁶ Also, repeated and unambiguous refusal to be heard by video conference maintained for eleven months, coupled with voluntarily travelling to another country, was found to be an unequivocal waiver of the right to attend the hearing in person.²¹⁷ Therefore, an unequivocal waiver needs the assessment of many other circumstances and may also have a close connection with other conditions of a valid waiver discussed here, like the knowing and intelligent standard.

4.5. Safeguards commensurate to the importance of a right

A valid waiver must also be accompanied by minimum safeguards commensurate with the importance of the specific right.²¹⁸ What constitutes a minimum safeguard appears to depend on the importance attached by the adjudicative body to the rights in question. This standard, most of the time, needs to be evaluated concurrently with the above conditions. Access to legal assistance and qualified lawyers, which can help the individual foresee the consequences of waiving a right, is one of the important safeguards.²¹⁹ For instance, in Pfeifer and Plankl, the state argued that the applicant had waived some procedural rights by not challenging the composition of the court.²²⁰ The ECtHR found the waiver invalid because the applicant was a layman who had been posed a question of law in the absence of his lawyer and therefore could not have fully understood the implications of a waiver.²²¹ In another case, where the applicant challenged the statement of one of the witnesses, the Court considered the presence of two professional lawyers a safeguard sufficient to ensure that the applicant could reasonably foresee the consequences of the conduct.²²²

In Suovaniemi, the ECtHR noted that throughout the arbitration, the applicants were represented by counsel²²³ and considered that a sufficient guarantee commensurate with the importance of the right to be protected (ie the right to impartiality of the tribunal).²²⁴ The Court furthermore noted that before the national courts, the applicants had ample opportunity to advance their arguments, inter alia, concerning the circumstances in which the waiver took place during arbitration.²²⁵

A significant aspect of the minimum safeguards commensurate to the importance of the right is the nature of the rights in question, which can render a waiver ineffective and invalid. In cases where important and complicated rights are at stake, such as deprivation of liberty²²⁶ or the right to life (risk of imposing the death penalty),²²⁷ the right to assistance of a lawyer cannot be waived in the interest of justice.²²⁸ Therefore, where the interest of justice requires the assistance of a lawyer, there will be no valid waiver of the rights.²²⁹ The nature of allegations and grave criminal offences can also contribute to finding an invalid waiver of the right to counsel.²³⁰ The ECtHR also found a waiver of legal assistance not attended by minimum safeguards when the initial classification of charges during the investigation stage was wrong, entailing classifying a possible murder to lesser charges not requiring mandatory legal assistance, resulting in the applicant not being fully aware of the nature of allegations and consequences of the proceedings.²³¹

Accordingly, while consenting to adhere to a workplace dress code, grooming policy, or occasional and temporary overtime work or change of schedule may not pose significant complexity in terms of a waiver, agreeing to other circumstances such as continuous surveillance measures, constant monitoring of personal devices, or biometric data collection could spark considerable debate and may require specific safeguards.²³² Also, cases involving irreversible waivers, such as consenting to an amputation, may necessitate a stricter level of scrutiny regarding safeguards commensurate to their importance.²³³

4.6. Conflict with paramount public interest

A final crucial factor for the validity of a waiver is that the waiver must not run counter to a paramount public interest.²³⁴ This requirement should be evaluated in cases of waivable rights. It is also the logic behind finding some fundamental substantive rights (generally recognized as nonderogable rights) not waivable in any circumstances.²³⁵ The idea that some rights are absolute and can never be suspended, encroached, or waived is well-established in international law, meaning that ‘the nature of some of the rights … is such as to exclude a waiver of the entitlement to exercise them …’.²³⁶ Whether rights can be waived depends on their specific nature and importance to international law and public order.²³⁷ For example, the right to privacy regarding politicians can fade when there are important public interests at stake.²³⁸ Therefore, core human rights (those that have become part of customary international law) are not waivable.²³⁹ These are the ‘rights [that] are essential for the maintenance of democracy, justice, and the rule of law principles’.²⁴⁰ Textbook examples include the right not to be subject to torture or slavery, the right not to be discriminated against, or the right to dignity.²⁴¹

Sometimes these rights are highlighted by international human rights treaties. For instance, the ICCPR provides that no derogations from the right to life, prohibition of torture, cruel, inhuman, or degrading treatment or punishment, prohibition of slavery and servitude, prohibition of imprisonment for failure to fulfil contractual obligations, no crime without law (nulla poena sine lege), recognition before the law, and freedom of thought, conscience, and religion may be made.²⁴² The ECHR also provides that no derogation from the right to life, prohibition of torture, prohibition of slavery and servitude, and no punishment without law shall be made.²⁴³

Jurisprudence aligns with the above provisions. In a ruling concerning sex discrimination in the military, the ECtHR declared:

[T]he Court considers that, in view of the fundamental importance of the prohibition of discrimination on grounds of sex, no waiver of the right not to be subjected to discrimination on such grounds can be accepted as it would be counter to an important public interest.²⁴⁴

Likewise, in D.H. and others, a case concerning alleged consent to different treatment and waiver of the right not to be racially discriminated, the ECtHR concluded that even if the conditions of a valid waiver were met, nondiscrimination could not be waived because of its importance for the public interest.²⁴⁵ This interpretation regarding nondiscrimination and consent to a certain type of different treatment applies to the situation of other rights as well.²⁴⁶ Thus, even if the conditions of a valid waiver are met, nondiscrimination cannot be waived because of its importance for the public interest.²⁴⁷

Concerning deprivation of liberty, the ECtHR has emphasized the importance of the right to liberty in a democratic society and concluded that simply giving oneself up to be taken into detention does not take away the protections provided by the Convention in this regard.²⁴⁸ However, the ECtHR displays some inconsistency concerning the right to liberty; while, in one case, it found the right to liberty not waivable because of its importance for the public interest, the Grand Chambre of the ECtHR, in another case, found that the right to liberty can be waivable, although it found the waiver in the case ineffective because of the poor health conditions of the applicant in detention.²⁴⁹ Two of the judges of the Grand Chamber highlighted this inconsistency in their dissenting opinion, arguing that:

The nature and substance of the right to liberty under the Convention is not amenable to any kind of ‘waiver of rights’ analysis akin to the one accepted by the Court under Article 6 of the Convention. Also, and not surprisingly, this has been the consistent position of the Court until today. In its settled case-law, the Court has proclaimed that the right to liberty is too important in a ‘democratic society’, within the meaning of the Convention, for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to be taken into detention.²⁵⁰

The right to a fair trial can also overlap with issues of public interest. For instance, the Court has found a public interest in protecting the right to a fair trial and making it not waivable.²⁵¹ In one case, waiver of the right to a judicial proceeding, while concluded to be unequivocal, was found to be invalid since the applicants were potential victims of human trafficking and that the waiver was against ‘the important public interest in combating trafficking and protecting its victims’ considering the negative impact that human trafficking can have on human dignity and other fundamental rights in a democratic society.²⁵²

The right to an independent and impartial tribunal (another aspect of the right to a fair trial) is another right that the ECtHR typically scrutinizes, notwithstanding any waiver.²⁵³ The ECtHR has held that the requirement of independence and impartiality is not waivable ex ante at the time of signing a contract.²⁵⁴ In Bulut, the ECtHR held that ‘[r]egardless of whether a waiver was made or not, the Court has still to decide, from the standpoint of the Convention, whether the participation of [the] Judge … in the trial after taking part in the questioning of witnesses at the pre-trial stage could cast doubt on the impartiality of the trial court’.²⁵⁵ However, in a commercial context, when the waiver has been free, there might be more flexibility. The Court in Mutu and Pechstein said that ‘in matters of commercial and sports arbitration to which consent has been given freely, lawfully and unequivocally, the notions of independence and impartiality may be construed flexibly’.²⁵⁶

The presence or absence of an important public interest is relevant regarding derogable rights as well. In Håkansson and Sturesson, the ECtHR concluded that the dispute did not involve any public interest that could have made a public hearing necessary.²⁵⁷ Then, in Axelsson and others, the Commission followed the same approach and did not find a public interest involved that necessitated a public hearing.²⁵⁸ In cases of consensual sado-masochistic relations, where the courts found serious levels of injury, public interest and morality consideration prevailed over the consent of individuals,²⁵⁹ demonstrating that consent cannot be used as a justification for such conduct.²⁶⁰

Therefore, some rights are not at the disposal of the individual, and the interest that society has in preserving them has priority over the autonomy of the parties to a private dispute.²⁶¹ Nonwaivable rights are inherently tied to public interests. Moreover, there are situations where public interest considerations can render a derogable right nonwaivable. It is notable that public interest is an elastic notion that can be difficult to define in some situations.²⁶² Here again, surrounding circumstances play a crucial role in identifying a conflict with public interest, as demonstrated by the above examples.

5. CONCLUSION

Amid the growing number of claims regarding the waiver of human rights in international litigation, the question of the anatomy of a valid waiver of human rights becomes more important. The IHRL practice recognizes that human rights fall into two categories of waivable and nonwaivable rights. It clarifies that some rights are too important for the public order and public interest to be waivable and individuals do not have the freedom to restrict or fully waive those rights. The rest of the rights fall into the category of waivable rights. International jurisprudence has carved out a number of requirements for waiving human rights which, as discussed, can now be identified as a formula that uniformly applies across the whole range of human rights from procedural to substantive ones.

A waiver cannot be effective without the right-holder, knowingly and intelligently waiving the right in a voluntary and unequivocal manner. Depending on the nature of the right in question and its importance, the waiver might need to be accompanied by minimum safeguards commensurate to its importance and finally, a waiver should not be against public interest. In cases where there is conflicting or contradicting evidence, the courts are cautious and inclined to consider the waiver invalid.²⁶³ Such evaluation is context-sensitive underscoring the importance of nuanced and careful analysis, recognizing that the validity of a waiver cannot be determined in a vacuum but must consider the intricate interplay of various factors unique to each situation.

This article examined the components of the anatomy of a valid waiver. Within the discussed framework, courts must carefully balance competing factors to determine the validity of a waiver.²⁶⁴ Despite these efforts, inconsistencies continue to arise, indicating that international jurisprudence on the matter is still evolving and maturing. As new challenges such as digital privacy or the increasing reliance on alternative dispute resolution mechanisms emerge, this legal landscape remains fluid and subject to constant evolution. These developments suggest that there is a need for ongoing scrutiny of the approach towards waiver of rights. The courts may need to revisit and refine the criteria for evaluating waivers to account for the dynamic nature of these emerging fields. Therefore, while this article provides a foundation for understanding the current structure, there is still much work to be done in clarifying and standardizing these principles.

ACKNOWLEDGEMENTS

I dedicate this article to Professor Mohammad Mohammadi Gorgani, professor of law at Allame Tabataba’i University, whose teachings sowed the initial seeds of my passion for fundamental freedoms and human rights. His influence has shaped my understanding and advocacy of human rights and motivated me to pursue this field. I am profoundly grateful for his commitment in the classroom, his boundless compassion for humanity, his insightful perspectives on life, and his serene demeanour. I also would like to thank Professor Cesare P.R. Romano for his feedback on the earlier drafts of this article.

Footnotes