Balancing human rights
18th century philosopher Immanuel Kant is reported to have once said that “The freedom of one person ends, where the freedom of another person begins”. This idea permeates the logic and practice of human rights law. However, in political discourses this need to balance is often overlooked in favour of an absolute approach that too often aims at excluding the rights of others in favor of one’s own right. But most human rights are not absolute. Competing human rights need to be balanced against each other. In the following it will be shown how this can be done in practice.
As an example, one can look at the right to assembly, for example for the purpose of a demonstration. For example, Article 11 (1) of the European Convention on Human Rights (ECHR) guarantees the freedom of assembly.
“Everybody has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”
But this right is not absolute. The right to demonstrate does not include rioting, looting etc. How then must the state balance competing human rights? The norm itself provides an answer. Article 11 (1) ECHR defines the scope of the right, while Article 11 (2) ECHR, following the general model used in the ECHR, allows for restrictions of this right under certain conditions:
“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.”
The first condition that the state has to fulfil in order to restrict the freedom of assembly, therefore, is that the powers invoked by the state have a basis in the law, they must be defined clearly in the law. It has to be predictable under which conditions the authorities can take which measures. This, like the necessity requirement that we will look at in a moment, is a common element in limitation clauses in the ECHR.
Such restrictions are only permitted for specific purposes. Article 11 (2) ECHR contains an exhaustive list of these purposes. This list includes issues of concern in the context of demonstrations, as it is not uncommon that peaceful demonstrations are abused by individuals or groups of people to commit crimes. This is not only not covered by the material scope of Article 11 (1) ECHR, but Article 11 (2) ECHR explicitly empowers the state to take the necessary action to secure public safety, security and to prevent crime and disorder. Outlining these purposes is also a reminder that the state has an active duty to protect others against infringements of their human rights by third parties. The state has a duty to protect against crime by creating and maintaining an effective system of law enforcement. Too often, human rights obligations are seen solely as negative obligations, as the obligation not to do anything. In practice, the state also has the duty, i.e., positive obligations, to take action in order to protect the rights of individuals against crimes and other activities of third parties, including non-state actors. Failing to take such action can also lead to a violation of human rights.
But even if a measure is aimed at pursuing one of the legitimate aims described in Article 11 (2) ECHR, it is illegal and in violation of the ECHR if the measure was not necessary in a democratic society. What exactly is necessary depends on the circumstances of the individual case and human rights cases often center on the question of whether a particular action by the state was actually necessary.
The state has a duty to respect rights but also to take action when needed to protect rights against violations of non-state actors. At the end of the day, human rights have to be balanced in a manner that secures the most effective protection of human rights. The state has a positive duty to protect and a negative duty to refrain from violating human rights. Balancing rights is a duty that has to be fulfilled every day by everybody involved with the exercise of power in the state, on all levels of the state. Respecting the rights of others is the duty of everyone.