THE INTERNATIONAL HUMAN RIGHT LAW

The International Human Right Law



The International Human Right Law

Question 1

The concept of proportionality is not specifically mentioned in the text of the European Convention or in any of its additional Protocols. Nevertheless it has come to be recognised as one of the central principles governing the application of the rights and freedoms contained within these instruments (Christoffersen, 2009). The significance that this concept has acquired for them does not, however, result from an approach to interpretation on the part of the Strasbourg institutions2 which is either inappropriate or unwarranted; rather it is justified in the sense that it leads to proper development and application of the Convention's provisions given the general absence from them of an absolute quality in the guarantee afforded.

However, it is perhaps inevitable that the specific application of such a concept will often prove to be controversial. Certainly this might be expected, given that human rights are involved, but it is also partly a consequence of the 1evel at which the exercise of judgment is being made; the supranational character of the European Commission and Court of Human Rights' may induce deference and self-restraint in respect of conclusions reached at the national level as to the appropriateness of restrictions on rights and freedoms which may not always be regarded as affording sufficient protection for the latter (Greer, 2006).

In any event, even if such objections to specific rulings are not necessarily justified, there is scope for concern about the way in which the proportionality concept appears applicable with fewer rigors in certain cases. This may simply be a facet of the supranational self-restraint already mentioned, but it may also reflect assumptions about the relative significance of certain rights and interests which might be open to question. Furthermore, there might be grounds for wondering whether sometimes more attention could still be given to the capacity of the Convention institutions to make an informed judgment about the acceptability of some of the interferences to which they are prepared to allow rights and freedoms to be subjected (Christoffersen, 2009).

The difficulty for advocates that arise from the general lack of precision in the application of both the international and national principles is that it is not clear whether the discretion should be seen as an overarching principle which lessens the intensity of the review by the court, or amounts to a self-denying ordinance that the court will not substitute its own opinion as to the desirability of the S 21 provision; nor is it clear whether the principle is applicable to the issue of 'necessity in a democratic society' in its larger sense, or the specific issue of proportionality.

Perhaps the most realistic view for advocates is that if the court takes the view that the 'discretionary area of judgment' is engaged, it will then be harder to persuade the court to substitute its own view as to the existence of the pressing social need, with the inevitable consequence that the specific issue of the ...