Proportionality in the ECHR

The principle of proportionality is one of the most important, and most mercurial, concepts in the case-law of the European Court of Human Rights. Antoine Buyse on ECHR blog brings news of an important new book on the topic:

New Book on Fair Balance

Book cover, via ECHR blogJonas Christoffersen, director of the Danish Institute of Human Rights, has just published a reworked version of his Ph.D. thesis as a book: Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights with Martinus Nijhoff Publishers. An important addition to the field of ECHR studies and a very extensive analytical work (670 pages) on a legally complicated principle. This is the abstract:

In one of the most important publications on the European Convention and Court of Human Rights in recent years, a wide range of fundamental practical and theoretical problems of crucial importance are addressed in an original and critical way bringing a fresh, coherent and innovative order into well-known battle zones.

The analysis revolves around the Court’s fair balance-test and comprises in-depth analyses of e.g. methods of interpretation, proportionality, the least onerous means-test, the notion of absolute rights, subsidiarity, formal and substantive principles, evidentiary standards, proceduralisation of substantive rights etc. The author coins the term of “primarity” in order to clarify the obligation of the Contracting Parties to implement the Convention in domestic law.

Compare and contrast Stavros Tsakyrakis “Proportionality: An assault on human rights?” (2009) 7(3) Icon 468-493; the abstract:

Balancing is the main method used by a number of constitutional courts around the world to resolve conflicts of fundamental rights. The European Court of Human Rights routinely balances human rights against each other and against conflicting public interests; it has elevated proportionality to the status of a basic principle of interpretation of the European Convention on Human Rights (ECHR). This paper examines the debate on balancing in the context of American constitutional law and the convention and discusses theories that claim some form of balancing is inherent in human rights adjudication. It argues that proportionality constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes, and it suggests that courts should focus, instead, on the real moral issues underlying such disputes.

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