Balancing Test: Inter-American Court of Human Rights (IACtHR)

Abstract

The Inter-American Court of Human Rights (IACtHR) uses a balancing test (or ponderación, for the terminology in Spanish, the Court’s primary working language) for the most part as a prong in a proportionality analysis. Proportionality analysis balances restrictions to human rights against other interests, more often than not states’, but sometimes also the rights of other private parties. Therefore, in making balancing part of proportionality, the IACtHR balances rights not only among different specific rights holders, but also in relation to the State, inasmuch as the latter can act as a proxy for the rights of the population at large. The balancing test, broadly defined as a means of weighing competing rights and interests against one another, can also in some readings be an opportunity to incorporate local circumstances and subsidiarity (Sagüés, 2013, 9). This entry engages with different facets of the balancing test before the IACtHR, on the basis of the Court’s case law. It initially engages with the place of balancing in proportionality analysis, as well as the rights protected by the American Convention on Human Rights (1969) (‘ACHR’) that are subject to balancing. Subsequently, I draw different threads of case law to look at the way balancing happens in relation to the Ssate, versus balancing in relation to specific individual rights holders, before distilling some clearer indication as to the parameters and operation of the balancing test in the IACtHR.

Keywords: balancing test, proportionality Inter-American Court, treaty interpretation