'Don't Use a Sledgehammer to Crack a Nut': Less Restrictive Means in the Case Law of the European Court of Human Rights

Brems, Eva; Lavrysen, Luc

doi:10.1093/hrlr/ngu040

Cited by 32 publications

(13 citation statements)

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“…Although this is a generally endorsed principle for laws that interfere with individual liberties, there is no one single authoritative formulation available. 28 I will employ the four stages to a proportionality test as formulated in European Union law, which is one of its most stringent formulations. The principle thus formulated covers four basic requirements: (1) there must be a legitimate aim for a measure; (2) the measure must be suitable to achieve the aim, potentially with a requirement of evidence to show it will have that effect; (3) the measure must be necessary to achieve the aim, and there cannot be any less onerous way of doing it; and (4) the measure must be reasonable, considering the competing interests of the different groups at hand.…”

Section: The Principle Of Proportionalitymentioning

confidence: 99%

Mandatory Vaccination: An Unqualified Defence

Pierik

2016

J Applied Philosophy

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The 2015 Disneyland outbreak of measles in the US unequivocally brought to light what had been brewing below the surface for a while: a slow but steady decline in vaccination rates resulting in a rising number of outbreaks. This can be traced back to an increasing public questioning of vaccines by an emerging anti-vaccination movement. This article argues that, in the face of diminishing vaccination rates, childhood vaccinations should not be seen as part of the domain of parental choice but, instead, as a non-negotiable legal obligation. The first part of the article formulates and defends two arguments in favour of unqualified mandatory childhood vaccination laws. First, government should not permit parents to put their children at avoidable risk of death and suffering; second, government should guard the common good of herd immunity to protect vulnerable persons. The second part rejects legal and pragmatic objections against such mandatory vaccination laws.

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Section: The Principle Of Proportionalitymentioning

confidence: 99%

Mandatory Vaccination: An Unqualified Defence

Pierik

2016

J Applied Philosophy

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“…This liberal-democratic argument favoring tolerance of non-vaccination can be translated into the legal principle of proportionality , requiring that a government’s interference with citizens’ freedom must be proportional to the goal the law seeks to achieve ( Klatt and Meister, 2012 : 8–10; Alexy, 2014 : 52–54; Brems and Lavrysen, 2015 : 141; Rivers, 2014 ). The principle is usually employed in a four-pronged test.…”

Section: Between Proportionality and Precautionmentioning

confidence: 99%

Vaccination Policies: Between Best and Basic Interests of the Child, between Precaution and Proportionality

Pierik

2020

Public Health Ethics

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How should liberal-democratic governments deal with emerging vaccination hesitancy when that leads to the resurgence of diseases that for decades were under control? This article argues that vaccination policies should be justified in terms of a proper weighing of the rights of children to be protected against vaccine-preventable diseases and the rights of parents to raise their children in ways that they see fit. The argument starts from the concept of the ‘best interests of the child involved’. The concept is elaborated for this context into the dual regime structure in which parents have fiduciary authority over what they consider to be best for their child, and the state has fiduciary authority over a child’s basic interests. This argument leads to conditional mandatory vaccination programs that should be informed by a correct balancing of the two legal principles of proportionality and precaution. This results in contextual childhood vaccination policies of upscaling interference: a three-tiered approach of increased intrusion, from voluntary program when possible and mandatory or even compulsory programs when necessary to protect the child’s basic interests.

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“…The question of necessity seeks the 'least restrictive means' 89 of securing the legitimate aim and thus requires the State to show that there was not a less invasive action that would have achieved the same goals, but without interfering with individual human rights to the same extent. With respect to the deportation of foreign national offenders, the test of necessity requires careful consideration of various post-sentence devices to prevent reoffending.…”

Section: The Tests Of Rationality and Necessitymentioning

confidence: 99%

Making the best interests of the child a substantive human right at the centre of national level expulsion decisions

Collinson

2020

Netherlands Quarterly of Human Rights

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The best interests of the child has become an central facet of the jurisprudence of the European Court of Human Rights (ECtHR) in expulsion cases. This article argues that the indirect application of the best interests of the child as an interpretive benchmark for Article 8 ECHR is not the end point of State’s responsibilities under Article 3 UN Convention on the Rights of the Child (UNCRC). This article argues that the ECtHR’s case law presents significant limitations in the subject matter scope of the best interests of the child, and limitations to the way in which it incorporates them into the Article 8 ECHR balancing exercise. This article acts as a thought experiment by modelling an alternative mode of decision-making. It asks what the best interests of the child might look like as the substantive human right at the centre of decisions about the expulsion of foreign nationals.

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'Don't Use a Sledgehammer to Crack a Nut': Less Restrictive Means in the Case Law of the European Court of Human Rights

Cited by 32 publications

References 0 publications

Mandatory Vaccination: An Unqualified Defence

Mandatory Vaccination: An Unqualified Defence

Vaccination Policies: Between Best and Basic Interests of the Child, between Precaution and Proportionality

Making the best interests of the child a substantive human right at the centre of national level expulsion decisions

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