Proportionality and Human Rights in International Law: Some ... « Utlitarian» Reflections

In this article some arguments are developed in order to show that the principle of proportionality plays an extremely useful role in the protection of human rights on the international legal plane, even if some negative effects may occur as a consequence of an “utilitarian shift” of this principle when balancing public interests with fundamental rights. More precisely, the following ideas are advanced: (a) the concept of a “hard core”/“noyau dur” of individual protected rights as elaborated by human rights bodies, and applied by international courts or tribunals (ECtHR, ECJ), has proven to be an effective tool to prevent that having recourse to proportionality may result in rendering void the said rights when facing public interests; (b) the protection of human rights at the international level has been sometimes adversely affected, precisely by the fact that international courts or tribunals (ECtHR and ICJ) did not make recourse to the proportionality approach when called upon to decide disputes concerning human rights. Some final remarks are designed to show both that the idea of a “hard core”/“noyau dur” of human rights and the logic of proportionality are conceptually distinguishable, and that setting the conflict between human rights and certain traditional international legal regimes in terms of proportionality — i.e. in the perspective of a concrete balancing of conflicting principles — is preferable to reasoning in terms of conflict of norms, from the point of view of the protection of human rights.