Edited by Robert Kolb and Gloria Gaggioli
Chapter 7: Proportionality in the European Convention on Human Rights
In the classical conception, international human rights law constitutes a set of rules which establish limits to sovereign powers. From this perspective, proportionality has the function of determining a reasonable balance between States’ and individuals’ interests. A different conception is gradually emerging which tends to regard human rights as part of the basic collective values of the international community. In this conception, proportionality is gradually assuming the function of determining the contents of human rights through a constant process of interests- and values-balancing. In this process, individuals’ interests are balanced not only with States’ interests but also with other individual and collective values of the international community. The current chapter will focus on the process of transformation of proportionality, from a tool designed to operate in the State–individual relationship, to one which applies to the overall process of values-balancing underlying the dynamics of human rights in contemporary international law. This process will be observed through a study of proportionality in the European Convention on Human Rights, probably the most integrated system of human rights protection established thus far, and one which can serve as a model for the development of a more comprehensive system of protection. Derogation represents the clearest example of how proportionality can be used in order to balance human rights and prerogatives of State sovereignty – in particular, the most evident prerogative, which is typically the power, or even the duty, to safeguard the life of the nation in time of war or of other public emergency.
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