CYIL vol. 11 (2020)

CYIL 11 (2020) STATE RESPONSE TO COVID-19 LIMITING HUMAN RIGHTS … Thus there are many intersections between different human rights in question in this situation. It is not easy to find the perfect balance between the rights of peoples in such unprecedented situation, it requires the weighing of different interests in the society and in essence some hierarchy of human rights, or to put it in legal terms, the determination of the “necessity” and “proportionality” of the measures taken in relation with the legitimate aims sought by those limitations. 2. Balancing of the rights and freedoms in crisis – main principles The most recent approach to assessing and justifying restrictions on human rights, in particular to ensure a balance between human rights and the public interest, is the proportionality test. This test of proportionality is entrenched in the doctrine of law and is widely applied in the practice of the constitutional courts of various countries and international human rights courts. Therefore, according to some authors, this principle is dominant or accepted. 13 “Proportionality refers to a set of rules determining the necessary and sufficient conditions for a limitation of a constitutionally protected right to be constitutionally permissible.” 14 The prevailing model of proportionality is based on the fundamental distinction between the scope of a right and its legal protection 15 . This distinction is also based on an analysis of key human rights sources and instruments. Major sources of human rights, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the ECHR, as well as national legislation enshrining human rights as constitutional rights, often state that rights may be limited. For example, we can see that general notions regarding the possible limitations of human rights and freedoms can be found in the articles declaring those rights. Article 29(2) of the Universal Declaration of Human Rights foresees that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” 16 In other regimes and documents the limitations are tied to particular rights. For example, Article 11 (2) of ECHR indicates instances where the right to peaceful assembly may be limited: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 17 13 See more discussion on this question BARAK, Aharon, Proportionality: Constitutional Rights and their Limitations (Cambridge 2012). 14 BARAK, Aharon, ‘How proportional is proportionality?’ International Journal of Constitutional Law , (Vol. 13, Is. 2, April 2015), 530-544. accessed 31 May 2020. 15 Barak Proportionality (n 13). 16 UNGA Res. 217 (III) (10 December 1948). 17 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR).


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