ABSTRACT
When a human rights conflict comes before a human rights (or constitutional) court, judges on the bench face a dilemma. They are forced to make difficult choices between superior norms that deserve equal respect. The dilemma is particularly acute at courts that employ a ‘priority-to-rights’ model of proportionality (or an equivalent test that takes the special normative force of human rights seriously). Such courts, like the ECtHR, are habituated to treating human rights protection as the rule and their restriction as the exception. They thus grant human rights principled, but defeasible priority over nonrights considerations. Under the ECHR, in particular, human rights arguably function as ‘shields’ that protect individuals from some, but not all non-rights considerations.1 When human rights conflict, however, there are no priorities to be enjoyed or shields to be wielded. Instead, judges have to make difficult choices between superior norms. They thereby face a dilemma: it seems as if, no matter which choice they make, one human right needs to be sacrificed to protect the other.
