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Max Planck Encyclopedia of International Procedural Law [MPEiPro]

Balancing Test: United Nations Human Rights Bodies

Helen Keller, Reto Walther

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 24 September 2022

Human rights — Judicial reasoning — Margin of appreciation

Published under the direction of Hélène Ruiz Fabri, with the support of the Department of International Law and Dispute Resolution, under the auspices of the Max Planck Institute Luxembourg for Procedural Law.

A.  Introduction

This entry analyses and compares the reasoning processes—and their contexts, bases and manifestations—that the United Nations (UN) human rights bodies (Human Rights, Treaty Bodies) deploy when called upon to balance competing rights and interests (Balancing test). The increase in international human rights (quasi) adjudication and the expansion of the scope of human rights over the last decades (see also Individuals in International Law) accounts for the great significance of balancing practices. Further, it explains the growth of critical academic and political discussion of balancing and related doctrines (see Proportionality; and paras 13–15 below).

1.  Balancing

Balancing is the judicial practice of determining which of two or more conflicting rights, interests, or values shall decide a case by reasoning with argumentative language so as to render the decision-making process comprehensible and more transparent. Balancing takes different forms, which fall into three rough categories. First, in its most classical sense as a proportional means-ends test, balancing is the process of weighing individual rights against public interests. This occurs where a state, in the pursuit of achieving certain legitimate public aims, takes measures that impinge upon individual human rights (see eg Art 19 (3) International Covenant on Civil and Political Rights (1966) (‘ICCPR’); para 5 below). Secondly, balancing applies to cases where the rights of two or more individuals conflict (see eg ‘due regard clause’ in Art 4 International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’); see also Racial and Religious Discrimination; para 7 below). Thirdly, a number of ‘other forms of weighing of interests and values’ arise from specific treaty clauses (see eg ‘progressive realisation’ in Art 2 (1) International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’); para 12 below; ‘reasonable accommodation’ in Art 2 Convention on the Rights of Persons with Disabilities (‘CRPD’), Disabled People, Non-Discrimination of; para 10 below).

Balancing must be distinguished from interpreting indeterminate treaty provisions, for interpretation in international law may also involve the consideration of opposing values in light of the context and the circumstances of a concrete case (see eg Hagan v Australia, 2003, para 7.3). Yet, this distinction is not entirely clear-cut (see below paras 8–12), which becomes especially apparent with the third group of balancing types. Further, balancing clauses that leave room for the consideration of state interests should be distinguished from broadly worded clauses that leave the Member States a degree of discretion (see Margin of Appreciation; paras 59–66 below). However, a state’s discretion and balancing are interrelated: if a state is permitted latitude, the result of the domestic authorities’ own balancing exercise is subjected to more lenient scrutiny by the treaty body. Thus, provisions that leave room for balancing opposing values may raise the question as to the division of responsibility between the States Parties and the treaty bodies. Finally, balancing differs from the—strictly speaking empirical—question whether a certain measure is necessary or required to achieve a legitimate aim pursued in the public interest. The intricate difficulties involved in an objective (cf eg UN Human Rights Committee (‘UN HRC’ or ‘HRC’), ‘General Comment No 29: State of Emergency (Article 4)’ (‘General Comment No 29’), para 6) analysis instil an evaluative element into this test which is, as a consequence, not immune from mutating into a sort of balancing exercise (cf para 13 below).

2.  Scope

All nine UN human rights treaty bodies (‘Committees’) undertake some balancing on the basis of individual cases, except for the Committee on Migrant Workers (‘CommMW’; see also Migrant Workers), which does not (as of yet) receive individual communications (Art 77 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families). A full appreciation of a Committee’s balancing practice must go beyond its jurisprudence to include relevant general comments/recommendations, since they express general positions on conflict values, thus complementing and elucidating a body’s jurisprudence.

B.  Legal Bases for Balancing and other Weighing of Interests and Values

1.  Balancing Rights and Public Interests

To a varying degree, all treaty bodies are, by virtue of their founding treaty, directed to balance conflicting rights and interests. This is because hardly any human right can be absolutely respected, protected, and fulfilled. The ICCPR especially contains numerous explicit limitation clauses which allow for the restriction of guaranteed rights in the public interest (see Arts 12 (3), 18 (3), 19 (3), 21, and 22 (2) ICCPR). Similarly, the Convention on the Rights of the Child (‘CRC’; see also Children, International Protection) includes explicit limitation clauses concerning children’s civil and political rights (see Arts 13 (2), 14 (3), and 15 (2) CRC). Though to a lesser degree, the ICESCR also contains similar clauses (see Arts 4 and 8 (1) (c) ICESCR).

2.  Balancing Conflicting Rights

By contrast, there are few treaty provisions that explicitly provide for the balancing of conflicting interests. The so-called ‘due regard clause’ in Article 4 ICERD stands out in this regard. Otherwise, the need to balance opposing rights against each other simply is often an inevitable consequence where the protected interests of two or more individuals are in conflict.

Article 4 ICERD shall ensure that the protection of the right to freedom from racial discrimination is ‘not achieved at the expense of other equally fundamental rights’ (United Nations General Assembly, 3rd Committee, 1314th Meeting, 1965, 135, para 18). However, its structure favours the right to freedom from racial discrimination over competing human rights (Mahalic and Gambee Mahalic, 1987, 89). The jurisprudence of the Committee on the Elimination of Racial Discrimination (‘CERD’) on racist speech (see eg TBB-Turkish Union in Berlin/Brandenburg v Germany, 2013, para 12.8; Adan v Denmark, 2010, paras 7.5–7.6; Gelle v Denmark, 2006, paras 7.4–7.5) and the General Recommendation No 15 confirm this view. The CERD strenuously argues in its General Recommendation No 15 that ‘the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression’ (at para 4; see also CERD, ‘General Recommendation No 35: Combating Racist Hate Speech’ (‘General Recommendation No 35’), para 45). Quite contrary to this view, many States Parties have declared reservations to Article 4 ICERD referring to concerns about the protection of the freedom of expression (eg France, Japan, and the United States).

3.  Other Forms of Weighing of Interests and Values

A number of specific treaty clauses give rise to particular forms of balancing exercises. While several UN human rights treaties exhibit identifiable key concepts that clearly fall into the category of ‘other forms of weighing of interests and values’, it would not be possible to conclusively determine the scope of this vague category.

(a)  ‘Due Diligence’ in ‘Taking All Appropriate Measures’

In the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’; see also Women, Rights of, International Protection), ‘due diligence’, though absent from the treaty text, has been developed into a key concept by the Committee on the Elimination of Discrimination against Women (‘CommEDAW’). In its early jurisprudence on violence against women, the CommEDAW firmly established that the formal legal framework for the protection of women against violence must be effective in practice so as to protect individual women who have been identified as being in danger (Byrnes and Bath, 2008, 533; see eg Goekce v Austria, 2007, para 12.1.2). The CommEDAW, when applying this demanding standard of review (Byrnes, 2012, 89; see eg Yildirim v Austria, 2007, paras 12.1.1–12.1.6), does not use the language of balancing. However, the idea that states have a duty of ‘due diligence’ in ‘taking all appropriate measures’ (Art 2 (e) CEDAW) to prevent private actors from committing gender-based violence against women (see CommEDAW, ‘General Recommendation No 19: Violence against Women’, para 9; ‘General Recommendation No 35 on Gender-based Violence against Women, Updating General Recommendation No 19’, para 24.b) inevitably involves balancing considerations concerning the question of how much a state, to fulfil its preventive duty, must do in terms of restricting the rights and freedoms of potential perpetrators (see eg Goekce v Austria, para 12.1.5; AT v Hungary, 2005, para 9.3; further González Carreño v Spain, 2014, para 9.4).

(b)  ‘Reasonable Accommodation’

10  In the CRPD, one of the most fundamental instruments to achieve substantive equality for persons with disabilities, ‘reasonable accommodation’, implies a certain form of balancing: its legal definition makes clear that States Parties are obliged to provide accommodation unless this amounts to ‘a disproportionate or undue burden’ (Art 2 CPRD). Thus, this provision requires balancing the right to reasonable accommodation in order to enjoy all human rights on an equal basis with others against the interests of the state (or the private actor) who is only obliged to provide reasonable accommodation (see eg Beasley v Australia, 2016, para 8.5; Jungelin v Sweden, 2014, para 10.6, and Dissenting Opinion of Committee Members Rios Espinosa, Degener, Buntan, Quan-Chang and Cisternas Reyes, para 5).

(c)  ‘Best Interests of the Child’

11  In the CRC, Article 3 (1) contains the fundamental concept according to which ‘the best interests of the child shall be a primary consideration’ when deciding on any measure concerning children. The ‘best interests of the child’ is an extraordinarily complex notion that embraces a wide range of considerations, including personal, social, and economic factors (see Committee on the Right of the Child (‘CommRC’), ‘General Comment No 14 on the Right of the Child to Have His or Her Best Interests Taken as a Primary Consideration (Art. 3, para. 1)’ (‘General Comment No 14’), paras 52–79; Freeman, 2007, 27–31) that must be weighed against each other (CommRC, ‘General Comment No 14’, paras 80–84). These factors may each suggest a different solution in the child’s best interest. But even then this interest may not be decisive. The best interests of the child is only a primary—and not the primary—consideration, hence even where all interests of the child indicate the same solution, still other considerations may be of importance. This entails balancing (CommRC, ‘General Comment No 14’, para 39; see further Freeman, 2007, 60–64; McGoldrick, 1991, 136). While the CommRC has yet to adopt its first views on the merits of an individual complaint, it will likely be confronted with hard cases of conflicting interests of the child and of other individuals such as its parents (see eg González Carreño v Spain, paras 9.4–9.5; Tcholatch v Canada, 2007, para 8.8).

(d)  ‘Progressive Realisation’ and ‘Available Resources’

12  The ICESCR contains the concepts of ‘progressive realisation’ and ‘available resources’ (Art 2 (1) ICESCR), which have subsequently been included in other UN human rights treaties (see eg Arts 4, 24 (4), 28 (1) CRC; Art 4 (2) CRPD). The duty to progressively realize the full rights of the ICESCR to the maximum of a Member State’s available resources implies ‘that a balancing of the “totality of rights” must guide the allocation of resources’ (Griffey, 2011, 282). Mainly responsible for this balancing exercise are the States Parties. The Committee on Economic, Social and Cultural Rights (‘CESCR’) in its individual complaints procedure is mandated to only apply a reasonableness test (Art 8 (4) OP-ICESCR). The CESCR has not yet had the opportunity to adopt a view in a complaints procedure that raised the issue of ‘progressive realisation’, unlike the CommRPD. However, the CommRPD did not substantively engage with the relevant arguments of the state (see Beasley v Australia, paras 4.7, 8.7–8.8; Lockrey v Australia, 2016, paras 4.7, 8.7–8.8).

C.  Place and Role of Balancing

13  Depending on its form (see above para 2), balancing takes a different place and role in the course of the assessment of the merits of a communication. Balancing understood as a proportional means-ends test complements the requirements commonly contained in limitation clauses according to which a rights limitation must be prescribed by a law, serve a legitimate aim, and be necessary to achieve this aim (see eg Ballantyne v Canada, 1993, para 11.4). Balancing in this sense can be considered a general principle of human rights protection: any interference with rights must be proportional. The three steps of this assessment are, however, not always strictly separated. For instance, the HRC tends to merge the necessity test with the proportionality question, observing ‘that the requirement of necessity implies an element of proportionality’ (see eg de Morais v Angola, 2005, para 6.8).

14  Where the CERD balances the right not to be discriminated against on racial grounds with the right to free speech, it commonly follows a two-step process. First, the CERD determines whether an impugned statement qualifies as racial discrimination, then it assesses whether the statement is nevertheless protected under the ‘due regard clause’ in Article 4 ICERD (see eg TBB-Turkish Union v Germany, paras 12.6–12.8). However, in this second step, the CERD often focuses more on an assessment of the state’s positive procedural obligations than on a substantive juxtaposition of the conflicting rights (see eg TBB-Turkish Union v Germany, para 12.8; Adan v Denmark, para 7.7). In other cases, the CERD abstains from balancing the two rights on the basis of its ‘compatibility thesis’ (eg Jewish Community of Oslo v Norway, 2005, para 10.5; see further para 7 above) whereby it seems to imply that absolute priority must be given to the right to be protected from racist speech (see also paras 26–27 below). The HRC in an early case adopted a more nuanced approach when balancing the right to free speech against the right to protection from racial discrimination. It followed its common three-step test (see above para 13) where the necessity requirement includes a proportionality analysis (see Faurisson v France, 1996, paras 9.4–9.7, and in particular Concurring Opinion of Committee Members Evatt and Kretzmer, co-signed by Committee Member Klein, paras 8–10; see further the other individual opinions annexed to these views). A later case confirmed this practice (Ross v Canada, 2000, paras 11.2–11.6).

15  If balancing takes place in the course of applying a particular key concept of a treaty (see above paras 8–12), the weighing of the different rights and interests and the interpretation of the pertinent treaty norm may coalesce in the process of applying the law to the circumstances of a case. Particularly where positive obligations of a state are at stake, it is often difficult to discern a methodologically clear juxtaposition of the interference with an author’s rights and the limits of what can be reasonably expected from the respondent State Party. Rather, the treaty bodies tend to resort to some sort of overall assessment of the circumstances of a case (see eg Kell v Canada, 2012, para 10.7, and Kell v Canada, Dissenting Opinion of Committee Member Schulz, para 3.8; HM v Sweden, 2012, para 8.5).

D.  Rights (Not) Subject to Balancing

16  Balancing of rights and interests implies that human rights are not inviolable but rather open to restrictions, under certain conditions. However, not all rights or types of rights are (equally) subject to such limitations. The concepts of absolute, non-derogable rights and peremptory norms (see Ius Cogens) as well as of core obligations indicate that certain individual human rights are either absolutely protected or only open to a very limited balancing against conflicting interests (see further Scheinin, 2013, 527–40).

1.  Negative and Positive Rights

17  Negative state obligations impose the duty to respect human rights, ie the duty not to interfere with a protected right. These ‘to be let alone’ rights are, with few exceptions, open to restrictions insofar as limitations are necessary to achieve a legitimate public aim, including the protection of overriding human rights of others (see above paras 5–7). Some of these rights only prohibit arbitrary interferences (see eg Art 9 (1) ICCPR)—seemingly a low justificatory threshold. However, in practice the HRC equally requires a legitimate public aim which justifies an interference merely to the extent to which it is proportionate (see eg Nystrom v Australia, 2011, paras 7.2–7.3, 7.7–7.11; Bakhtiyari v Australia, 2003, para 9.3). Rights that correspond to negative obligations are thus normally subject to balancing against a range of conflicting interests (see below para 33).

18  Positive obligations impose on the States Parties firstly duties to protect human rights and secondly duties to ensure or fulfil human rights, ie to provide the institutional structures, goods, and services necessary for the enjoyment of one’s human rights. As it is clear that states possess neither the resources nor—in absence of all-embracing state control—the capacity to comprehensively protect and fulfil (see also para 36 below) all human rights, the question whether and to what extent such obligations apply is a complex one. Duties to protect can never be absolute in practice (but cf para 23 below), but must be amenable to limitations. Similarly, obligations to fulfil are in practice always subject to certain qualifications which entails balancing considerations (but see below paras 21 and 29).

19  Positive obligations are more prevalent in anti-discrimination Conventions and the ICESCR, as compared to the ICCPR. Hence, difficult balancing issues arise more frequently in this context. However, this does not mean that the nature and structure of these treaties and their rights would fundamentally differ from the ICCPR in that they would not be ‘justiciable’. Also, it would be wrong to assume that negative obligations did not involve significant cost considerations.

2.  Non-derogable Rights and Minimum Core Obligations

20  Article 4 (2) ICCPR enumerates those rights from which any derogation in times of public emergency is excluded (HRC, ‘General Comment No 29’, para 7). Most importantly, this list includes the prohibition of torture (Art 7; see below paras 22–23). Further Articles 6, 8 (1) and (2), 11, 15, 16, and 18 are non-derogable. A state cannot lawfully justify derogations from these rights because this ‘can never become necessary … during a state of emergency’ (HRC, ‘General Comment No 29’, para 11). The HRC has extended the scope of Article 4 (2) to additional rights. With a view to Article 4 (1) ICCPR it has held that ‘there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances’ (HRC, ‘General Comment No 29’, para 8) thereby extending the scope of Article 4 (2) to elements of Article 26 and other non-discrimination provisions of the ICCPR. Furthermore, the HRC has drawn up a non-exhaustive list of rights that are not mentioned in Article 4 (2) but nevertheless contain non-derogable elements (HRC, ‘General Comment No 29’, paras 13–16) which includes: Articles 2 (3), 9 (cf Art 1 (2) International Convention for the Protection of All Persons from Enforced Disappearance), 10, 12 (prohibition of forced displacement; see also HRC, ‘General Comment No 27: Freedom of Movement (Article 12)’, para 13), 14 (see also HRC, ‘General Comment No 32: on Article 14 (Right to Equality before Courts and Tribunals and to a Fair Trial’) (‘General Comment No 32’), paras 18–19), 15, 18, 20, and 27. Lastly, also the freedom of opinion has been declared non-derogable (HRC, ‘General Comment No 34: on Article 19 (Freedoms of Opinion and Expression)’ (‘General Comment No 34’), para 5).

21  The ICESCR for its part does not contain a derogation clause. On the contrary, Article 4 ICESCR provides that any right enshrined in the ICESCR may be restricted under the requirements set out in this provision. In view of the resulting duty to progressively realize the full rights of the ICESCR to the maximum of a state’s available resources, it has been debated whether there nevertheless exist certain minimum core obligations, ie whether States Parties must in any case guarantee a certain minimum level of the rights guaranteed in the ICESCR. It seems today (cf CESCR, ‘General Comment No 14: The Right to the Highest Attainable Standard of Health (Art 12 of the Covenant)’, para 47) that even supposed minimum core obligations are limited by a state’s available resources and thus open to balancing in the sense that a state may have to, and is indeed permitted to, set certain priorities (see CESCR, ‘General Comment No 3: The Nature of States Parties Obligations (Art. 2, par. 1)’, para 10; ‘General Comment No 19: The Right to Social Security (Art. 9)’, para 60; Moeckli, forthcoming).

3.  Absolute Prohibition of Torture and Refoulement

22  It is widely accepted that the prohibition of torture as well as the prohibition of cruel, inhuman, or degrading treatment (Torture, Prohibition of) are absolute and non-derogable, ie not subject to any exception (see Art 2 (2) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’); Art 4 (2) ICCPR; Committee against Torture (‘CommAT’), ‘General Comment No 2: Implementation of Article 2 by States Parties’ (‘General Comment No 2’), paras 1, 5; Nowak and McArthur, 2008, Art 2, MN 59, 61). Notwithstanding the absolute nature of this prohibition, there remains some room for ‘disguised’ balancing in cases of ill-treatment, notably in complaints about the excessive use of police force. Article 16 CAT leaves room for this form of ‘disguised’ balancing insofar as the principle of proportionality is determinative of whether the impugned use of force was excessive and thus prohibited in view of the concrete circumstances (see eg Keremedchiev v Bulgaria, 2008, para 9.3). Similarly, the HRC, while acknowledging that the prohibition of torture is absolute (see eg HRC, ‘General Comment No 20 (Art. 7)’, para 3), resorts to certain considerations that come close to weighing, for instance when it asks whether the use of force by prison officials was ‘reasonable’ (see eg Stephens v Jamaica, 1995, para 9.2). The same applies where the HRC must determine whether a certain treatment of a person in detention violated Article 7 or ‘only’ Article 10 ICCPR, which extends the former provision guaranteeing human treatment to all persons in custody (see eg Edwards v Jamaica, 1997, paras 8.2–8.3; further Möller and de Zayas, 2009, 204–20).

23  Related to the absolute prohibition of torture and cruel, inhuman, or degrading treatment is the absolute principle of non-refoulement, ie the prohibition on the extradition of a person ‘where there are substantial grounds for believing that he would be in danger of being subjected to torture’ (Art 3 CAT; CommAT, ‘General Comment No 2’, para 5). Neither the CommAT (see eg Tebourski v France, 2007, para 8.3) nor the HRC (see eg Israil v Kazakhstan, 2011, para 9.4) balance the right to protection against refoulement with public interests such as security concerns. However, since the assessment of ‘substantial grounds’ under Article 3 CAT is not entirely objective, the protection against refoulement ultimately does depend to a certain degree on the question whether a state’s decision to extradite someone was proportional (or reasonable) in view of all the relevant considerations and circumstances in the case, taking into account, for instance, the existence of diplomatic assurances (see eg Abichou v Germany, 2013, para 11.7; Attia v Sweden, 2003, para 12.3; further Giuffré, 2017, 80–83). The absolute protection against refoulement goes further under Article 7 ICCPR than under Article 3 CAT. The latter provision applies only to torture (but cf Mariño Mendez, 2015, 68–69) whereas the former also protects against cruel, inhuman, and degrading treatment.

4.  Other Absolute Rights

24  Besides the prohibition of torture and refoulement, the ICCPR recognizes further rights that are absolute in the sense that they may not be restricted under any circumstances. These include the prohibition of slavery and servitude (Art 8 (1) and (2) ICCPR), the right to a competent, independent, and impartial tribunal in a criminal trial (Art 14 (1) ICCPR; HRC, ‘General Comment No 32’, para 19; Gonzõlez del Rio v Peru, 1992, para 5.2), the prohibition of retroactive criminal laws (Art 15 ICCPR), the private freedom of thought, conscience, religion, and belief (Art 18 (1) and (2) ICCPR; HRC, ‘General Comment No 22 (Art 18)’, para 3), as well as the freedom of opinion (Art 19 (1) ICCPR; HRC, ‘General Comment No 34’, para 9).

5.  Prohibition of Discrimination

25  The observation that the HRC has held certain aspects of the prohibition of discrimination to be non-derogable (see above para 20) gives rise to the question whether and to what extent the right to non-discrimination is open to balancing considerations.

26  It has already been noted with regard to the ICERD that, although Article 4 explicitly provides for the balancing of conflicting rights, the CERD has taken a restrictive approach by arguing that a near absolute protection against racist speech is compatible with the freedom of expression (see above para 7). Further, Article 2 (1) (d), one of the fundamental obligations of the ICERD, which obliges the States Parties to ‘bring to an end, by all appropriate means, including legislation … racial discrimination by any persons, group or organization’, is ‘unqualified in its requirement’ to bring to an end to racial discrimination in wider society (Banton, 1996, 199).

27  Whether it is accurate to describe the essential principle of non-discrimination on racial grounds as enjoying a (proximate) status of ius cogens to the exclusion of any balancing must be left open (see CERD, Statement on Racial Discrimination and Measures to Combat Terrorism, para 4; further International Court of Justice (‘ICJ’), Armed Activities on the Territory of The Congo, 2006, para 78; International Law Commission (‘ILC’), Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, Art 40, para 4; Commission on Human Rights, Racism, Racial Discrimination, Xenophobia and related Intolerance, para 40). In practice, it is not possible to apply the different aspects of this principle without balancing considerations (see eg TBB-Turkish Union v Germany, and cf Dissenting Opinion of Committee Member Vázquez; Sefic v Denmark, 2005, para 7.2; further CERD, ‘General Recommendation No 35’, paras 10–23).

28  The CEDAW contains neither limitation clauses nor a derogation clause. Reading it in conjunction with Article 4 (1) ICCPR, which holds that derogation measures must not discriminate on the ground of sex, makes clear that the principle of non-discrimination against women probably enjoys non-derogability. The importance of the essence of the CEDAW—and non-discrimination more in general—is further underlined by its inclusion, amongst others, in Article 1 (3) United Nations Charter as well as in several provisions of the Universal Declaration of Human Rights (1948) (‘UDHR’), the ICCPR, and the ICESCR (see further CommEDAW, ‘General Recommendation No 28 on the Core Obligations of States Parties under Article 2 of the Convention’ (‘General Recommendation No 28’), para 3). Whether the prohibition of gender discrimination has ius cogens status remains rather unclear (cf Chinkin and Freeman, 2012, 28). The CommEDAW does not explicitly address these questions in its comment on the nature of the core obligations under the CEDAW (see CommEDAW, ‘General Recommendation No 28’, paras 8–13). Its case law shows, however, that the distinction between discrimination and non-discrimination is not always clear-cut in practice (see eg Nguyen v The Netherlands, 2006, and Dissenting Opinion of Committee Members Gabr, Schöpp-Schilling, and Shin) and may, as a matter of fact, require the consideration of conflicting interests (see eg Goekce v Austria, para 12.1.5).

29  The CommRPD takes a rigorous position on the CRPD’s prohibition of discrimination on the basis of disability (Art 5 CRPD). It understands the prohibition as absolute with the consequence that any justification of unequal treatment on the basis of disability is excluded (see CommRPD, ‘General Comment No 1: Article 12: Equal Recognition before the Law’, para 31; CommRPD, Guidelines on the Right to Liberty and Security of Persons with Disabilities, paras 7–8; Uerpmann-Wittzack, 2016, 194, 202, 211). Moreover, the CommRPD takes the view that the positive obligation to implement ‘accessibility’ (Art 9 CRPD) is ‘unconditional’, ie the right to accessibility must not be balanced against the burden related to providing accessibility (CommRPD, ‘General Comment No 2: Article 9: Accessibility’, para 25; see also eg Beasley v Australia, para 8.6).

30  The HRC’s long-standing jurisprudence on Article 26 ICCPR by contrast shows that the right to equality can be balanced against conflicting rights and interests: ‘differentiation based on reasonable and objective criteria does not amount to prohibited discrimination’ (Broeks v Netherlands, 1987, para 13; further eg Q v Denmark, 2015, para 7.3; HRC, ‘General Comment No 18: Non-discrimination’ (‘General Comment No 18’), para 13). Thus, non-discrimination ‘does not mean identical treatment in every instance’ (HRC, ‘General Comment No 18’, para 8). The CESCR essentially shares this position (CESCR, ‘General Comment No 20: Non-discrimination in Economic, Social and Cultural Rights’ (‘General Comment No 20’), para 13).

31  Overall, the principle of non-discrimination is indeed a very important basic and general aspect of human rights protection justifying its prominent status. However, for the same reason—ie its basic and general character—the principle cannot in practice be immune from balancing considerations: its relation to many other human rights, imposing both negative and positive state obligations, and its application to a myriad of different situations (cf HRC, ‘General Comment No 18’; CESCR, ‘General Comment No 20’) prevent it from functioning as an absolute prohibition or an inviolable right, but rather necessitate subjecting its implementation to reasonable limitations and, thus, balancing considerations.

E.  Counterweighing Interests

32  Most human rights can be restricted in order to pursue legitimate public aims because otherwise they would unduly burden the States Parties. In other cases, restrictions are simply due to the normative force of practicalities. It is also clear, however, that only certain interests or values may be justifiably invoked against protected human rights. Which interests and values qualify as legitimate limits to human rights varies from right to right and between the different treaties. These variations are due to the different weight accorded to the protected rights, differences inherent in the reasons for a rights restriction, and differences in the state obligations that correspond to a certain right (see above paras 16–31). Finally, simple—but potentially highly controversial—political choices may be the reason for the existence and persistence of lawful restrictions (see eg Art 6 (2) ICCPR).

33  The ICCPR contains several limitation clauses which generally justify rights restrictions in the pursuit of one of the following public aims: national security, public order and ‘ordre public’, public health or morals, or the rights and freedoms of others (see Arts 12 (3), 18 (3), 19 (3), 21, 22 (2) ICCPR). Article 22 (Freedom of association and trade unions) is complemented with an additional clause allowing further reaching restrictions on the freedom of associations for members of the military or the police (Art 22 (2) ICCPR) which can be explained with the special status and responsibilities of such officials. By contrast, a much narrower limitation clause can be found in Article 13 (Protection of aliens against arbitrary expulsion), which may be limited only where so required by ‘compelling reasons of national security’. Again a slightly different limitation clause is contained in Article 14 (Procedural guarantees in civil and criminal trials). According to Article 14 (1) ICCPR, the right to a public hearing can be excluded for reasons of national security, public order and ‘ordre public’, or morals or if so required by the interests of justice or of the private lives of the parties.

34  These limitation clauses are largely reproduced in other human rights conventions as far as the latter guarantee civil and political rights (see below paras 35 and 37). An exception to this rule may be seen in Article 4 ICERD according to which certain civil and political rights may, and indeed must, be restricted to a greater extent than under the ICCPR (see above para 7).

35  In contrast to these detailed limitation clauses, the ICESCR contains a very general limitation clause which allows for restrictions for the purpose of ‘promoting the general welfare in a democratic society’ and to the extent to which this is ‘compatible with the nature of’ the Covenant rights (Art 4 (1) ICESCR). However, as far as the ICESCR reproduces civil and political rights, further limitation clauses can be found. These are similar to the ones contained in the ICCPR. Article 8 (Freedom of trade unions) allows restrictions for reasons of national security or public order or for the protection of the rights and freedoms of others (Art 8 (1) (a) and (c) ICESCR) and provides an additional further reaching clause applicable to members of the armed forces, the police or the state administration (Art 8 (2) ICESCR). The most significant qualification clause in the ICESCR is thus implicit in the general nature of the state obligations which stop short of requiring an immediate and full realization of the rights guaranteed in the ICESCR (see above para 12).

36  Similar qualifying concepts—ie clauses that allow for taking the burden into account that positive rights impose on the States Parties—can be seen in provisions referring to ‘reasonable accommodation’ (Art 2 CRPD; see above para 10) or ‘all appropriate measures’ (CEDAW, passim; see above para 9).

37  That there is a difference between limitation clauses to negative and to positive rights becomes, at the latest, clear from the CRC which guarantees rights of both kinds. The CRC contains in Article 4 a general limitation clause applicable to economic, social, and cultural rights which mirrors Article 2 (1) ICESCR. Its focus is thus on the limits of the burden that can be imposed on a State Party. Articles 13 (2), 14 (3), 15 (2) CRC, by contrast, mirror the typical limitation clauses contained in the corresponding Articles of the ICCPR, hence focusing on aims that a state may legitimately pursue in the interest of society even if they interfere with certain protected individual interests.

38  An extraordinary reason to limit human rights is recognized in provisions that allow derogating from human rights due to a public emergency that threatens the life of the nation (see Art 4 ICCPR). Here, the justifying reason lies in the right of a state to defend itself, notably against threats resulting from armed conflicts, coups, or similar attempts to topple the constitutional order.

F.  Selected Balancing Practice

39  There is a myriad of possible conflicts between rights, interests, and other values that may give rise to balancing. An analysis of the different Committees’ relevant practice must therefore necessarily remain incomplete. In addition to the cases that were mentioned above in order to discuss the concept of balancing, the following selection of balancing practice gives a further idea of some of the more complex, and in this sense interesting, constellations of balancing. So as to highlight possible discrepancies between the Committees, the Committees’ practice in relation to certain issues will be compared.

1.  Racist Speech

40  A common problem stemming from conflicting individual rights and public interests, including the rights of others, relates to the necessity to restrict the freedom of speech if a contested statement crosses a certain threshold of racially discriminatory substance. It is however far from self-evident what level of malice is required in order to justifiably restrict someone’s freedom of expression. Nor is it obvious what means are proportionate to act against such illegitimate use of the freedom of speech.

41  Under the ICCPR, the freedom of speech may be restricted, amongst others, for the protection of the rights and reputation of others or for the protection of national security or the public order (Art 19 (3) ICCPR). Acknowledging that effective measures must be taken to protect against silencing those who exercise their freedom of expression, the HRC in General Comment No 34 stipulates detailed and demanding requirements for lawful restrictions of the freedom of expression for the protection of the rights and reputation of others (at paras 21–28). Similarly, with regard to restrictions based on the need to protect the public order, the HRC requires a State Party to ‘demonstrate in specific and individualized fashion the precise nature of the threat, and the necessity and proportionality of the specific action taken, in particular by establishing a direct and immediate connection between the expression and the threat’ (at para 35; see also eg Kim v Republic of Korea, 1998, para 12.5). Moreover, the HRC reserves the right to review the necessity of any restriction of the freedom of speech (HRC, ‘General Comment No 34’, para 36). In its practice, the HRC has held that the freedom of expression protects even statements that may be perceived as deeply offensive and that any restriction on the right to free speech must be strictly proportional. This entails that the obligation to prohibit incitement to racial discrimination does not necessarily require criminal punishment but may be achieved through civil or administrative law measures (see Rabbae and others v Netherlands, 2016, para 10.4). However, the HRC has not further specified what conduct warrants criminal penalties. In an early case, it accepted the criminal conviction of an applicant who had been found guilty of the crime of contestation de crimes contre l'humanité because he had negated the existence of homicidal gas chambers for the extermination of Jews in Nazi concentration camps (Faurisson v France). Later, it also accepted the transfer of an applicant, who had been a teacher, to a non-teaching position after he had denigrated the Jewish faith and thus discriminated against Jewish students resulting in a ‘poisoned school environment’ (Ross v Canada, para 11.6).

42  With regard to the outcome of the cases before the HRC, the difference to the approach adopted by the CERD may seem negligible. However, a comparison of the bodies’ reasoning may change this impression. In a certain contrast to the HRC’s general position according to which offensive statements are protected by the freedom of speech, the CERD held in its first opinion on Article 4 ICERD that the impugned statements are not protected by the freedom of expression due to their ‘exceptionally/manifestly offensive character’ (Jewish Community v Norway, para 10.5). Similarly, the two bodies’ positions on the relevance of the political nature of contested statements seem to differ. While the HRC emphasizes that freedom of expression is of particular importance in the context of political debates (see HRC, ‘General Comment No 34’, para 34; and eg Bodrožić v Serbia and Montenegro, 2005, para 3.1), the CERD maintains that States Parties must take ‘resolute action to counter any tendency to target, stigmatize, stereotype or profile, on the basis of race … especially by politicians’ (CERD, ‘General Recommendation No 30 on Discrimination against Non-citizens’, para 12). On this basis, the CERD found against Denmark in a case concerning public statements made in the course of a political debate by a member of the Danish parliament that offended persons of Somali origin (Gelle v Denmark, para 7.6). This duty to take ‘resolute action’ seems at times to not leave any room for a proportionality analysis as implied by the HRC’s practice, but to require the States Parties to take vigorous action against any dissemination of ideas based upon racial superiority or hatred (see TBB-Turkish Union v Germany, para 12.8, but cf Dissenting Opinion of Committee Member Vázquez). The Committees’ different weighing of free speech against the prohibition of racial discrimination is finally also reflected by the fact that the CERD, unlike the HRC, tends to demand that the States Parties sanction a wide range of practices as offences punishable by law (CERD, ‘General Recommendation No 35’, para 13).

2.  Multipolar Cases

43  In many constellations, a contested measure allegedly justified by a legitimate public interest impinges on the human rights of more than one individual. These individual interests may, moreover, be contradictory. In various contexts, but most notably in cases involving families, such multipolar human rights cases raise complex balancing problems.

(a)  Deportation and Family Rights

44  In the context of deportation orders, the conflict is typically between the particular individual’s (possible) right to stay and the public interest justifying the deportation order. However, should that individual have a family, it is no longer sufficient to balance the rights of the individual against the interests of the state, since the rights of the family members must also be taken into consideration and may significantly change the outcome.

45  An illustrative case is Madafferi and others v Australia (HRC, 2004) which rests on the HRC’s jurisprudence according to which a State Party’s decision to not allow someone with family to remain on its territory may constitute an interference with that person’s family life. If this is the case, for instance, because ‘substantial changes to long-settled family life’ (at para 9.8) would ensue, the HRC balances the state’s interest in the enforcement of the deportation decision against the protected human rights of the individuals concerned. This balancing is used in order to assess whether the contested domestic decision was in violation of the ICCPR. In Madafferi and others, the HRC noted that the author had illegally stayed in Australia, was allegedly dishonest in his dealings with the immigration office, and had committed criminal acts in Italy twenty years ago. However, his sentences had been extinguished. This stood against the interests of the author, whose mental health had been impaired in the conduct of the deportation proceedings and who depended on his family’s care. In addition, his family members’ interests had to be taken into account. They did not know Italy and the four children did not speak Italian. Thus, an enforcement of the deportation order would have compelled them to decide whether to follow their husband and father and to settle in an alien environment, or to be separated from him. On the balance of reasons, the HRC found that a deportation would violate the family’s rights under Articles 17, 23, and 24 ICCPR (at paras 9.7–9.8; see also Leghaei and others v Australia, 2015, paras 10.2–10.5; Winata and Li v Australia, 2001, para 7.3).

46  The importance of the rights of family members in deportation cases becomes clear from Byahuranga v Denmark (HRC, 2004). In this case, the HRC could not take into account that the author’s deportation would also impinge on the rights of the author’s wife and children because the communication was filed solely in the author’s own right and not on behalf of his family. As a consequence, the HRC’s balancing exercise was complete after having considered the author’s interests to stay in Denmark and the state’s reasons for his expulsion (at paras 11.5–11.9) which did not—and could not— result in a violation of Articles 17 and 23 ICCPR. With the same result, the HRC concluded in WMG v Canada (2016) that it was not apparent whether the author had provided for his children’s needs and that it was not possible to assess the author’s relationship with his family (at para 7.6). By contrast, in Husseini v Denmark (2014) the HRC explicitly reproached the Danish authorities for not having given due consideration to the rights of the family and the children on whose behalf the communication was submitted as well (at para 9.6; cf MGC v Australia, 2015, para 11.9).

(b)  Custody Rights

47  In cases concerning custody rights, the right of a parent and the right of a child to maintain personal relations and regular contact may conflict with the authorities’ understanding of what is in the best interests of the child. The refusal to allow contact between a parent and a child over a longer period of time may thus result in a violation of Articles 17 and 23 ICCPR if a State Party cannot justify this situation (Z v Australia, 2015, paras 7.3–7.4). Unless special circumstances prevail, the HRC assumes that it cannot be in the best interests of a child to be completely denied any access to a parent. Such measures must thus be justified with exceptional circumstances and must not be more intrusive than necessary. For instance, a single slap, lack of cooperation with the authorities, and alleged mental disability were considered sufficient to justify neither a complete denial of access nor a very strict access regime (Tcholatch v Canada, paras 8.2–8.8).

48  Similar, but heightened difficulties may result from situations involving divorce where the parents of a child have differing views on the best interests of the child and especially on who should remain in what contact with the common child. At stake are the protection of the family, the equality of the parents, and the best interests of the child. As a rule, the HRC states that a child should maintain regular contact with both parents and that the opposition of one parent to this cannot normally justify an exception to that rule (Hendriks v Netherlands, 1988, paras 10.2–10.4).

(c)  Rights of Women and Foetuses

49  Multipolar constellations may already arise before birth, namely in cases where the interests of a pregnant woman and her foetus collide. Some states maintain legal frameworks that strictly protect foetuses, but may come into conflict with the interests of a pregnant woman. The HRC was confronted with a situation where an Irish woman, who was carrying a foetus with such severe congenital deficiencies that it was expected to die either in utero or shortly after birth, was refused abortion in Ireland. What’s more, she was deprived of any information on and assistance with travelling abroad for that purpose. Due to the severe mental pain she suffered, the HRC found a violation of Article 7 ICCPR. Given that the foetus was fatally ill, the HRC focused on the woman’s distress, noting that Article 7 does not allow for any justified limitation. Ireland, to comply with this provision, ought to have taken necessary measures to prevent the woman’s suffering (Mellet v Ireland, 2016, paras 7.4–7.6; see also Llantoy Huamán v Peru, 2005, para 6.3). It thus seems that the HRC, contrary to the Irish authorities, saw no room to balance the protection of an unviable foetus against cruel, inhuman, and degrading treatment of the mother under Article 7 (see at para 7.8). The HRC also reviewed Ireland’s policy under Article 17 ICCPR. It concluded that Ireland unreasonably and arbitrarily interfered with the woman’s privacy by restricting her options how to deal with the difficult situation (at para 7.8).

50  One may wonder whose interests are actually balanced against a woman’s rights in cases concerning the alleged protection of a foetus that is not even potentially viable (see Mellet v Ireland, Concurring Opinion of Committee Member Rodley). Arguably, it is rather the protection of public morals which is invoked against the woman’s wish to abort (cf Mellet v Ireland, Partly Dissenting Opinion of Committee Member Seibert-Fohr, para 8).

51  The situation was different in a case before the CommEDAW where the health of a young woman carrying a viable foetus was at stake. The woman was in need of spinal surgery which was, despite a risk of permanent disability, delayed on grounds of her pregnancy. However, therapeutical abortion making the subsequent surgery possible was also refused although the pregnancy was considered to cause elevated risk of maternal morbidity. The CommEDAW found, amongst others, a violation of Article 5 CEDAW (Equality of women and men before the law) due to the ‘stereotype that protection of the foetus should prevail over the health of the mother’ (TPF v Peru, 2011, para 8.15).

52  Similarly, the HRC in Mellet v Ireland found also a violation of Article 26 ICCPR (Equality before the law). Ireland’s legislative framework ensures full protection through the public healthcare system to women who decide to carry a fatally ill foetus to term, but refuses any assistance or support to women who choose to terminate their pregnancy. This is a discriminatory policy which stereotypes women as reproductive instruments (Mellet v Ireland, para 7.11). The case law of the two bodies is therefore comparable, though the finding under Article 26 was controversial (see Mellet v Ireland, Partly Dissenting Opinion of Committee Member Seibert-Fohr, paras 4–10) and, with regard to the similar ‘stereotyping’ wording, one may wonder whether the HRC emulated the CommEDAW.

3.  Freedom of Religion and Gender Equality

53  In certain cases, it seems as if the (presumed) rights and interests of the same person may conflict. Thus, balancing may mean weighing two human rights against each other even though they appear to be protected for the benefit of the same individual. For instance, one could conceive of a headscarf ban, which interferes with the headscarf wearing woman’s religious freedom, as a permissible measure in favour of that woman’s equality, ie as a measure that must be enforced even against the ostensible will of the woman in order to realize gender equality against patriarchal resistance (Şahin v Turkey, 2005, para 115; contra SAS v France, 2014, para 119). However, it is also possible to consider a headscarf ban as a severe restriction of women’s religious freedom which is difficult if not impossible to justify with gender equality.

54  The HRC adopted the latter position. It seems to consider a headscarf ban as a coercion prohibited under Article 18 (2) ICCPR (Hudoyberganova v Uzbekistan, 2004, para 6.2). As such, a headscarf ban may not be justified under the limitation clause in Article 18 (3) ICCPR (HRC, ‘General Comment No 22 (Art 18)’, paras 5 and 8). Thus, the HRC, in view of Articles 18 and 26, is concerned with headscarf bans such as the one in force in France (HRC, Concluding Observations: France (4th Periodic Report), para 23). Equally, the CommRC is worried about this and has noted that the ban might be counterproductive, violating the principle of the best interests of the child and impairing access to education (CommRC, Concluding Observations: France (2nd Periodic Report), para 25). Also, the CommEDAW regarded a headscarf ban as a possible limitation of women’s autonomy. It framed a dismissal due to wearing a headscarf as a discrimination against women in the field of employment, but had to declare the communication inadmissible for procedural reasons (Kayhan v Turkey, 2006, para 7.7). Its opinion on the French headscarf ban indicates more generally that it also sees such measures as a threat to human rights and inclusion in society, rather than as a means to promote gender equality (CommEDAW, Concluding Observations: France (6th Periodic Report), para 20). Finally, the CERD adopted a position very close to the one of the CommEDAW, focusing on discrimination with adverse consequences for other human rights (CERD, Concluding Observations: France (15th and 16th Periodic Reports), para 18). Overall, the four treaty bodies agree that headscarf bans, rather than promote gender equality, violate headscarf-wearing women’s religious freedom and equal participation in society.

4.  Intersectionality

55  The headscarf example makes another issue apparent: intersectionality, ie the co-existence of traits of an individual—such as female gender and Islamic religiosity—that may each for itself and/or in combination with each other make that individual additionally susceptible for human rights violations. Allegations of human rights violations due to discrimination may be difficult to assess where several characteristics of an individual come together with an obscuring effect on whether and for which particular reason or combination of reasons a contested incident amounted to discrimination. For instance, an individual’s treatment may be discriminatory by way of her belonging to the female gender, her belonging to a racial minority, on the basis of her precarious socio-economic background, or for a combination of these reasons.

56  In da Silva Pimentel v Brazil (2011) the CommEDAW found a violation of Articles 2 (Discriminatory policies) and 12 (Discrimination in healthcare) CEDAW because the state failed to ensure adequate medical treatment of a pregnant woman, noting that the victim was discriminated against on the basis of her sex, African descent, and socio-economic status (at para 7.7). It remained rather unclear how the CommEDAW untangled the effects of the victim’s gender, descent, and poverty so as to conclude that the disputed incident occurred due to gender discrimination proscribed under the CEDAW and not mainly, as the State Party argued, as a result of the deficient health service provided to the population (paras 4.7–4.12).

57  The intersectionality issue is relevant for both potential victims and the States Parties. For the latter, it may be difficult in such constellations to justify the contested conduct given that the cause and effect of the contested event may be hard to decipher. By contrast, a holistic view may be decisive for the protection of potential victims. In Lovelace v Canada (HRC, 1981) the victim was discriminated against neither because she was of female gender, nor because she was of indigenous origin alone, but because she was female and a member of an indigenous group. Only a holistic approach made it possible to accurately capture the discrimination she faced.

58  These examples illustrate the intricate task faced by treaty bodies when confronted with overlapping traits of an individual to comprehensively apprehend the situation of that individual and the resulting implications for the State Parties’ obligations.

G.  Deference and State Discretion

59  In view of the difficult questions involved in balancing and weighing conflicting values, international adjudicatory bodies make use of a practice of judicial restraint, often referred to as a margin of appreciation. This is due to the normative flexibility inherent in many international human rights norms, which may be interpreted and applied differently. Therefore, an international adjudicator may grant a degree of deference to the national authorities’ discretion which may notably be justified by the democratic legitimacy of the domestic decision-makers and their epistemic advantage that results from their familiarity with the local circumstances (see Shany, 2005, 908–10). While the margin of appreciation is best known as a doctrine employed by the European Court of Human Rights (ECtHR), similar practices can also be observed in UN human rights treaty bodies.

60  With regard to the HRC, a practice of deference has been identified notably concerning the application of the law to the facts, the restrictive interpretation where a normative consensus is absent, and a low degree of scrutiny of certain domestic decisions that involve balancing (Shany, 2017, 10–18). In a number of cases, the HRC has shown some deference towards the national authorities’ balancing of rights and interests (but cf McGoldrick, 2016, 59). However, the HRC has only once, in 1982, explicitly held that ‘a certain margin of discretion must be accorded to the responsible national authorities’ (Hertzberg v Finland, 1982, para 10.3). There, the HRC observed that ‘public morals differ widely’ and that there is ‘no universally applicable common standard’ (para 10.3).

61  In family and children rights cases, the HRC tends to defer to the national authorities if the domestic decision was based on an assessment of all the relevant circumstances (but cf Asensi Martínez v Paraguay, 2009, paras 5.3–7.5) because the domestic authorities are considered to be ‘generally competent to evaluate the circumstances of an individual case’ (Hendriks v Netherlands, paras 10.4–11; see also EB v New Zealand, 2007, para 9.5). However, the HRC has also made explicit that even where a state generally deserves a certain degree of deference, the HRC will not completely refrain from reviewing the domestic decision (see eg Shakeel v Canada, 2013, paras 8.4–8.6; Winata and Li v Australia, para 7.3; but cf Shakeel v Canada, Dissenting Opinion of Committee Member Shany, joined by Committee Members Flinterman, Kälin, Rodley, Seibert-Fohr, and Vardzelashvili).

62  Other treaty bodies also apply deference to the domestic authorities’ assessments. For instance, the CERD held, in a case concerning a domestic decision rejecting the disqualification of a juror who made inimical remarks, ‘that it is neither the function of the Committee to interpret the Norwegian rules on criminal procedure concerning the disqualification of jurors, nor to decide as to whether the juror had to be disqualified on that basis’ (Narrainen v Norway, 1994, para 9.5).

63  The CommEDAW also granted the Netherlands a margin of discretion in a particular case concerning an allegedly discriminatory system of maternity leave, arguing that ‘the Convention leaves to states parties a certain margin of discretion to devise a system of maternity leave benefits to fulfil Convention requirements’ and finding that the state’s choice was within the Convention standards (Nguyen v The Netherlands, para 10.2; but cf de Blok et al v The Netherlands, 2014, paras 8.7–8.9).

64  The CommRPD, for its part, has held ‘that, when assessing the reasonableness and proportionality of accommodation measures, State parties enjoy a certain margin of appreciation’ (Jungelin v Sweden, para 10.5) in order to conclude that it could not find a violation in a case concerning alleged workplace discrimination due to a public employer’s refusal to adapt computer systems to the applicant’s sight (at para 10.6; but cf Noble v Australia, 2016, para 8.6).

65  Regarding the CESCR, there is no practice as of yet. However, it should be pointed out that Article 8 (4) Optional Protocol to the CESCR implicitly acknowledges the justificatory basis of a doctrine of deference. Indeed, it states that ‘the Committee shall bear in mind that the State Party may adopt a range of possible policy measures for the implementation of the rights set forth in the Covenant’. The same wording was adopted in Article 10 (4) Optional Protocol to the CRC.

66  Finally, it should be noted that some Committees express their views through rather brief reasoning. This makes it hard to assess whether a Committee simply refrained from extensive reasoning or whether—and if so on what basis—it decided to defer to the respondent state’s decision and assessment (see eg Zentralrat Deutscher Sinti und Roma et al v Germany, 2008, paras 7.7–8).

H.  Concluding Remarks

67  On the basis of the jurisprudence covered here, one cannot but conclude that the practice of balancing rights and interests has developed into an essential element of human rights adjudication. In particular, this is proven by the fact that balancing-like forms of weighing interests and values take an important role even in contexts that make no explicit provisions for a proportional means-ends test.

68  The value of the traditional proportionality test lies in the structuring effect it has on the argumentative process. This allows for the litigant parties to comprehensibly exchange their arguments and for the adjudicatory body to arrive at its conclusion in an intelligible way. In other contexts that give rise to balancing-like practices, a similarly clear structure is less obvious, which makes the task of reaching a transparent and well-comprehensible decision even more challenging. This unmistakably demonstrates the limits of balancing: notwithstanding the practice’s prevalence, in the end, it cannot make up for a well-reasoned judgment that takes due regard of all relevant arguments and reaches its decision through a stringent argumentation.

Cited Bibliography

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  • P Alston and G Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 HumRtsQ 156–229.

  • S Detrick, A Commentary on the United Nations Convention on the Rights of the Child (Nijhoff The Hague 1999).

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  • MA Freeman, C Chinkin, and B Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women (OUP Oxford 2012).

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  • P Thornberry, The International Convention on the Elimination of All Forms of Racial Discrimination (OUP Oxford 2016).

Cited Documents

Cited Cases

UN Human Rights Committee (HRC)