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When Human Rights Clash at the European Court of Human RightsConflict or Harmony?$
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Stijn Smet and Eva Brems

Print publication date: 2017

Print ISBN-13: 9780198795957

Published to Oxford Scholarship Online: August 2017

DOI: 10.1093/oso/9780198795957.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 06 July 2020

Human Rights in Relation

Human Rights in Relation

A Critical Reading of the ECtHR’s Approach to Conflicts of Rights

(p.23) 1 Human Rights in Relation
When Human Rights Clash at the European Court of Human Rights

Samantha Besson

Oxford University Press

Human rights must sometimes be restricted to further social interests or the rights of others. Yet, we like to think that human rights are not reducible to interests like security and cannot be weighed and balanced against them. This position holds a middle ground between Kantian absolutism and prioritization of rights and utilitarian consequentialism and weighing and balancing of rights. It reflects the sheer theoretical difficulty of accounting for moral trade-offs that are not quantitative. This ambivalence is also echoed in the case law of the European Court of Human Rights (ECtHR): restrictions to human rights are usually hard to justify or even excluded in some cases. This chapter proposes an interpretation that comes close to a form of qualitative balancing of human rights by reference to their egalitarian dimension. It also accounts for seemingly contradictory elements in the ECtHR’s reasoning: the ‘proportionality’ test and the reference to ‘absolute’ rights.

Keywords:   European Convention on Human Rights, ECHR, conflicts of rights, interest, equality, consequentialism, balancing, qualitative balancing, proportionality, absolute rights

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