Proportionality as a universal human rights principle

Abstract

Proportionality is the standard that guides the balancing of human or fundamental rights in law, requiring that the interference with rights must be justified by reasons that keep a reasonable relation with the intensity of the interference. One may well regard the principle of proportionality as a universal standard of rationality, which any legal system must recognise. Thus, when applied to human rights, proportionality presents a universal human rights principle. However, the thesis of the universal validity of the principle of proportionality faces various objections. I will refute these objections. First, I will distinguish diverse meanings of the universal character of principles and argue that the principle of proportionality is in a certain sense universally valid. In the second part, I will analyse the content of the principle of proportionality as part of a general framework of balancing and suggest a general scheme for examining the justification of the interference with a fundamental right according to the standard of proportionality.