To ensure that counter-terrorism measures are lawful, they not only have to be a proportionate response, but must also be applied proportionately on a case-by-case basis.162 Even in a counter-terrorism context, measures taken to limit qualified rights must be appropriate to achieve their protective function. The mere fact that the measure is sufficient to achieve the intended aim — for example protecting national security or public order — is not enough to satisfy proportionality. Proportionality requires that the way in which the right is being restricted is actually necessary to protect national security or public order, and that the approach adopted is the least restrictive method among those that might achieve the desired result of protecting national security or public order. Finally, proportionality always requires that a balance is struck between the burden placed on the individual whose rights are being limited and the interests of the general public in achieving the aim that is being protected. Is it discriminatory? As part of the test for assessing the legality of any restrictions on human rights, the issue of discrimination must be addressed, even if there has been no violation of the substantive right at issue.163 As a general principle, a distinction will be considered discriminatory if it has no objective and reasonable justification, and if it is disproportionate. If these tests cannot be met, a difference of treatment will amount to discrimination and will be unlawful. In the counter-terrorism context, particular attention has to be given to ensure that measures are not adopted, and/or applied, which discriminate on grounds of race, religion, nationality or ethnicity. The OSCE has recognized the need to protect against discrimination if sustainable peace and security is to be established. Of particular concern to the Organization is the discriminatory treatment of national minorities.164 Protection against discrimination is vital in devising counter-terrorism strategies. Guaranteeing protection from discrimination has proved increasingly problematic in some countries’ responses to the events of 11 September 2001.165 162 “1. All measures taken by States to combat terrorism must be lawful. 2. When a measure restricts human rights, restrictions must be defined as precisely as possible and be necessary and proportionate to the aim pursued”, op. cit., note 11, CoE, Guidelines on Human Rights and the Fight against Terrorism, Guideline III (Lawfulness of anti-terrorist measures). 163 The principle of equal treatment and its relationship with human rights in the counter-terrorism context is dealt with on pages 80-87, 135 and 242 below. 164 For an overview of OSCE commitments related to national minorities, see OSCE/ODIHR, OSCE Human Dimension Commitments, Volume 1 (thematic compilation), (Warsaw, 2005), pp. 139-155, available at http://www.osce. org/odihr/item_11_16237.html. 165 For example, the United Kingdom’s emergency legislation, which permitted the administrative detention of nonUK nationals but not British citizens, was held to be discriminatory and therefore unlawful; see House of Lords, A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department (Respondent), [2004] UKHL 56, 16 December 2004. Countering Terrorism, Protecting Human Rights 71