States of Emergency - Centre for Policy Alternatives

In the theoretical development of the legal and political
philosophy underlying human rights, one of the central problems
was that of the question of how to balance the rights and freedoms
of individuals with the public interest, with the principle of
proportionality emerging as a device with which to determine the
legality of the State’s interference in the private sphere of rights.
As Oraá states, “The same rationale lies behind its applicability in
modern human rights law; the rights and freedoms recognised to
individuals [sic] are not absolute or without limits; however, such
limits must be proportionate to the legitimate aim pursued by the
limitation. This has become a well‐established principle in
domestic as well as in international law.” 253 In the international
law of human rights and the ICCPR, proportionality applies in
respect of three major issues: (a) non‐discrimination; (b)
limitation clauses; and (c) the legal regime of derogations.
In the area of non‐discrimination, international law recognises
that not all types of discriminatory treatment or differentiation
are bad in law; indeed, the maxim that equality demands that nonequals
be treated unequally is now well‐established in both
international and municipal public law. The two criteria generally
employed to determine whether negative discrimination has
occurred are (a) whether the differentiation of treatment lacks an
objective or reasonable basis, and (b) whether there is
proportionality between the means used and the legitimate aim
pursued.
Likewise in respect of limitation clauses, the jurisprudence of the
adjudicatory organs of the ICCPR, ECHR and IACHR, suggests that
limitations may be imposed on the exercise of rights only when
necessary in a democratic society for reasons such as public order,
253
Oraá: pp.140‐141
161