The ECtHR’s suitability test in national security cases: Two models for balancing human rights and national security

Abstract

AbstractThe European Court of Human Rights has often been criticized for lacking clarity and consistency in its reasoning of balancing human rights against conflicting public interests. To reconcile national security with human rights protection, the Court requires the interference with rights to be suitable for reaching the objective purported by the government. In this article I deal with how the Court conducts the suitability test in national security cases, in line with two models under which a few representative test considerations can be categorized: human rights priority model and national security priority model. To explain how each model works in a comparable sense, I follow the same analytic structure and examine the manner of the Court’s test and the intensity of its scrutiny. I argue that in compliance with the two models, the Court applies the suitability test in a consistent and predictable way in national security case law.