The Second Annual ILHRU Lecture.
Limitation clauses of human rights treaties such as the European Convention of Human Rights (ECHR) allow for restrictions on the exercise of fundamental rights if they meet certain well-defined conditions. One of the most important of these is the requirement that a restriction be ‘necessary in a democratic society’. Though famous, this is also one of the most elusive phrases of the European Convention. Over time, the European Court of Human Rights (ECtHR) – tasked with interpreting and applying the ECHR in individual cases – has provided many different definitions and interpretations of the requirement of necessity, but in the end, its approach always seems to boil down to an open, ad hoc balancing test. Indeed, the ECtHR has even expressly held that ‘… inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights’. This focus on searching for a fair balance suggests that in each individual case, the ECtHR considers the different rights and interests that are at stake and decides whether the interests pursued by the State (such as protection of fundamental rights of others or protection of public health) can be considered to reasonably outweigh the claimed Convention rights of the applicant.
Looking more closely at the case law, however, it appears that significant changes have taken place in the Court’s argumentative practice. In this lecture, it will be shown that for the ECtHR, balancing is not an important method of argumentation any longer and the ECtHR relies on a number of different methods instead. Its present approach will be illustrated by taking examples from its recent case law and it will be explained that the Court is likely to stay away from its traditional balancing review also in the future.
Janneke Gerards is professor of fundamental rights law at the Montaigne Centre for Rule of Law and Administration of Justice of Utrecht University (the Netherlands) and Dean of the Legal Research Master. She has published extensively on European fundamental rights, equal treatment law, judicial review and new technologies – most recently, the second edition of her handbook General Principles of the European Convention on Human Rights was published with Cambridge University Press. Among many other activities, Janneke Gerards is currently a member of the Scientific Board of the EU’s Fundamental Rights Agency, chair of the Advisory Board of the Netherlands Human Rights Institute, and deputy judge in the Hague Court of Appeals. Since 2015, Janneke Gerards is a member of the Royal Netherlands Academy of Arts and Sciences.