excludes from the protection of the Covenant activities or acts ‘aimed at the
destruction of any of the rights and freedoms recognised’ in the Covenant.91
18. With respect to public health or morals, the Human Rights Committee has noted
‘the concept of morals derives from many social, philosophical and religious
traditions’ and so restrictions on freedoms ‘must be based on principles not
deriving exclusively from a single tradition’.92 Equally, there is ‘no universally
applicable common standard’.93
Necessity and proportionality
19. ‘Necessary’ does not mean indispensable, but neither does it mean
‘reasonable’ or ‘desirable’.94 It requires that the limitations are for a ‘compelling
governmental interest’,95 and are only imposed for the purposes for which they
were intended and that they must be ‘directly related and proportionate to the
specific need on which they are predicated’.96
20. Therefore the limitations must be ‘appropriate to achieve their protective
function; they must be the least intrusive instrument amongst those which might
achieve the desired result’.97
21. What proportionality requires is that there is a reasonable relationship between
the means employed and the aims sought to be achieved. Essentially
proportionality requires a court ultimately to determine whether a measure of
interference which is aimed at promoting a legitimate public policy is either:
Unacceptably broad in its application; or
Has imposed an excessive or unreasonable burden on certain individuals.98
22. Factors to consider when assessing whether or not an action is disproportionate
are:
91
92
Have relevant and sufficient reasons been advanced in support of it?
Was there a less restrictive measure?
Has there been some measure of procedural fairness in the decision making
process?
Do safeguards against abuse exist?
Does the restriction in question destroy the ‘very essence’ of the right in
question?
Ibid. See also Communication 117/1981, M.A. v Italy, 10 April 1984, para 13.3.
Human Rights Committee, General Comment No. 22, CCPR/C/21/Rev.1/Add.4 (1993), paragraph
8.
93
Communication No. 61/1979, L Hertzberg et al v Finland, 2 April 1982, para 10.3.
Sunday Times v UK, European Court, 26 April 1979.
95 Inter-American Court, Ivcher Bronstein v Peru, 6 Feb 2001, Series C. No.74, para 156.
96 Human Rights Committee, General Comment No. 22, CCPR/C/21/Rev.1/Add.4 (1993), paragraph
8.
97 Human Rights Committee, General Comment No. 27, CCPR/C/21/Rev.1/Add.9 (1999), paragraph
14.
98
Human Rights Committee, General Comment No.31, CCPR/C/21/Rev.1/Add/13 (2004).
94
36
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