Evaluating the ratio of the Principle of Necessity and the Principle of Proportionality in the Realm of Limitation and Suspension of Human Rights

Document Type : Research Paper

Authors

1 Ph.D. in International Law, Department of International Law, School of Law, Shahid Beheshti University.

2 Assistant Professor in International Law, Department of Public & International Law, School of Law & Political Sciences, Shiraz University

10.22099/jls.2020.38517.4077

Abstract

Necessity and proportionality are among the most widely used principles in international human rights law, their relationship is not very clear, the present article after explaining the concept and position of the mentioned principles in the scope of international human rights Rules, it measures the ratio of each of them to each other in a four-way relationship. based on the approach of the “International Covenant on Civil and Political Rights” and the “European Convention on Human Rights”, the principles in the field of limitation and suspension of human rights are compared. the question is when a human right is restricted or suspended, In order to preserve the nature and essence of that right, which of these two principles should be given priority? despite the lack of consensus among the regulatory bodies of the two documents, it appears in time of public emergency and the suspension of the right by the state, the principle of necessity should be used as a criterion in the concept of "less intrusive means". since the basis of the principle of proportionality and the interpretation of the principle of necessity in its shadow, increases the discretion of the state in suspending rights and intensifies the risk of slipping into the trap of utilitarianism, applying the principle of necessity can prevent this damage to a great extent.

Keywords

Journal of Legal Studies

Volume 13, Issue 1
Spring 2021
Pages 29-54

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