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Legal Tests for Applying the European Convention On Human Rights and Freedoms in Adjudicating On Alleged Discrimination

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image of Nordic Journal of International Law

In this paper I have proposed some criteria for solving the "justification" problem inherent in Article 14 of the Convention on Human Rights and Freedoms. My conclusions are the following. Obviously a State measure does not need any justification under the Convention, if it does not lie within its scope. In my view, the measures in dispute in the Linguistic case and in the three cases against a State-Employer did not fall within the scope of the Convention and, therefore, did not need any justification. Justification presupposes a legitimate aim and a non-arbitrary manner of obtaining that aim. The basis for the "aim test" is the bona f ide principle in general international law. A State measure taken in order to pursue a policy that runs counter to the order sought to be realised by the Convention is not justified. In a situation where there are "aims within aims" both the superior aim and the subordinate aim(s) should be scrutinized under the aim test, and all must be justified. A State policy intended to prevent or discourage people from enjoying a right or freedom falling within the scope of the minimum standard granted by the Convention is not justified, unless it is covered by an expressly stated escape clause. In contrast, where there are lateral aims in the sense of "killing two birds with one stone", it is enough for the aim test that any one of these aims is legitimate; the presence of a concurrent illicit aim does not permit the conclusion that the measure under examination is illegitimate, but its presence may, of course, show the invoked aim to be only a pretext. The "arbitrariness test" invokes the principle that it is not justifiable to frustrate a human right or freedom in order to pursue a policy that could as effectively, or more effectively, be realised with less or no adverse effect on human rights and freedoms. The fact that a State policy is not consistently pursued is not in itself a proof of non-justification. The most fruitful way of dealing with such situations would be to examine separately the differential treatment of the subcategories, according to the tests mentioned.


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