Chapter

Proportionality: Determining Rights

Andrew Legg

in The Margin of Appreciation in International Human Rights Law

Published in print July 2012 | ISBN: 9780199650453
Published online September 2012 | e-ISBN: 9780191741173 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199650453.003.0007

Series: Oxford Monographs in International Law

Proportionality: Determining Rights

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An accurate understanding of the proportionality assessment in international human rights law requires recognition of the impact of factors for a margin of appreciation alongside in the decision-making process of the court. This chapter considers the origins of proportionality in human rights law, and different theories of rights (interest theories and “rights as trumps” theories) that have sought to explain how it operates. It argues that these accounts of proportionality are deficient in so far as they omit an explanation of the role of deference in courts' reasoning. It further argues that use of the word “balancing” to describe proportionality is inaccurate if taken literally, but can be a helpful metaphor. The chapter expounds case law that demonstrates the conceptual connection between the margin of appreciation and proportionality in practice.

Keywords: proportionality; deference; second-order reasons; balancing; interest theories of rights; rights as trumps

Chapter.  11577 words. 

Subjects: Public International Law

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