vaipan_g_v_disser

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Proportionality between harm and advantage..........................................................................	103
Proportionality between means and ends ................................................................................	107
Attempted reconciliation .........................................................................................................	111
Operation Allied Force............................................................................................................	113
Prosecutor v. Gotovina, Čermak, and Markač........................................................................	115
Conclusion: proportionality in IHL as argumentative practice ...............................................	120

Chapter 4. Principle of proportionality in international human rights law . 122

§ 1. The content of the principle of proportionality in human rights law.............	122
The principle of proportionality and pragmatism in human rights law ...................................	122
Robert Alexy and the balancing approach ...............................................................................	126
Ronald Dworkin and the categorical approach........................................................................	132
§ 2. Proportionality of human rights limitations: judicial reasoning ....................	140
“Proportionality test”: attempted reconciliation of the balancing and the categorical
approaches ...............................................................................................................................	140
Beit Sourik Village Council v. The Government of Israel .......................................................	145
Murat Vural v. Turkey .............................................................................................................	154
Conclusion: proportionality of human rights limitations as an argumentative practice ..........	161
Conclusion............................................................................................................	165
References ............................................................................................................	171

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Introduction

Background of study

“To do a great right, do a little wrong”1 – this line from William Shakespeare’s “The Merchant of Venice” perhaps best expresses the idea of proportionality. “To do a great right, do a little wrong” – exclaims Bassanio as he exhorts Portia, acting in the role of a judge, to deny moneylender Shylock his right to enforce a bond against merchant Antonio in order to save Antonio’s life. Can one commit a wrong for the sake of some (greater) good? And how far can one go that way? Bassanio’s words remind us that law has always tackled these issues – comparisons between right and wrong, ends and means. His words demonstrate that the idea of proportionality is inherent to law.2

However, over the course of the XX century proportionality has evolved from a background idea into a legal principle of its own standing. In this capacity, it has been explicitly set forth in legal sources. One after another, various areas of international law have embraced the principle of proportionality as a criterion of legality. Today, the principle of proportionality features as a key normative standard in landmark international law disputes before international and national courts, ranging from cases concerning armed attacks3 to disputes about the diversion of rivers.4 Were the means of action chosen by an international actor strictly necessary to achieve a pursued goal? Were the interests of other (affected) international actors sufficiently taken into account? The answers to these central questions of proportionality quite often determine the outcome of the dispute. The very term

1Shakespeare W. The Merchant of Venice (4.1.206). URL: http://shakespeare.mit.edu/merchant/full.html.

2In certain languages, including Russian, there are different terms that refer to proportionality (in Russian:

“proportsional’nost’” and “sorazmernost’”). In the Russian version of this study, I treat both terms as interchangeable. For contrasting views on proportionality terminology in Russian scholarship, see: Gadzhiyev G.A. Konstitutsionnyye printsipy rynochnoy ekonomiki. M., 2004. S. 71-73; Rumyantsev A.G. Verhältnismässigkeit – proportionality – sorazmernost’ // Sravnitel’noye konstitutsionnoye obozreniye. 2014. No. 5. S. 156-158.

3International Court of Justice. Oil Platforms (Iran v. United States of America). Judgment of 6 November 2003 // I.C.J. Reports 2003. P. 6. See more below, p. 53-63 of this study.

4International Court of Justice. Gabčikovo-Nagymaros Project (Hungary/Slovakia). Judgment of 25 September 1997 // I.C.J. Reports 1997. P. 7. See more below, p. 86-89 of this study.

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“proportionality” has become an indispensable part of an international lawyer’s professional vocabulary.

The popularity of proportionality suggests that its spread in international law is happening due to reasons that transcend individual regimes of international law. Instead, they likely relate to international law as a whole and affect its intellectual foundations. This hypothesis is reinforced by the fact that practical use and doctrinal studies of proportionality lead to common disputes and misunderstandings. Lawyers radically disagree on a single set of basic questions about proportionality: what is it? who and how should determine whether an action is proportionate or not? what is the yardstick of proportionality? etc. As Judith Gardam notes, “[t]he fundamental nature and operation of proportionality in international law is by no means settled”.5

The repeat and stereotypical pattern of doctrinal disputes about proportionality supports a hypothesis that there is a common theoretical “denominator” to which these disputes actually reduce.

Proportionality is ubiquitous; heated debates about its meaning and content are persisting. Yet, there are almost no theoretical accounts of the nature and role of proportionality in international law.6 Both Russian7 and international8 scholars recognize the need for a fundamental study of proportionality. My intention is to fill in this gap.

5Gardam J. Necessity, Proportionality and the Use of Force by States. N.Y.; Cambridge, 2004. P. 2-3. See also: de Búrca G. The Principle of Proportionality and its Application in EC Law // Yearbook of European Law. 1993. P. 105-150, 105 (noting “the confusion which exists over the meaning of the proportionality principle”).

6Exceptions include, e.g.: Higgins R. Problems and Process: International Law and How We Use It. N.Y.; Oxford, 1994; Cannizzaro E. Il Principio della Proporzionalità nell'ordinamento Internazionale. Milano, 2000; Franck T.M.

On Proportionality of Countermeasures in International Law // American Journal of International Law. 2008. P. 715767; Kingsbury B., Schill S. Investor-State Arbitration as Governance: Fair and Equitable Treatment, Proportionality, and the Emerging Global Administrative Law // 50 Years of the New York Convention / Ed. by A.J. van Den Berg. Alphen aan den Rijn, 2009. P. 5-68; Nolte G. Thin or Thick? The Principle of Proportionality and International Humanitarian Law // Law & Ethics of Human Rights. 2010. P. 243-255; Cannizzaro E. Proportionality in the Law of Armed Conflict // The Oxford Handbook of International Law in Armed Conflict / Ed. by A. Clapham, P. Gaeta. Oxford, 2014. P. 332-352.

7See, e.g.: Dedov D.I. Sorazmernost’ ogranicheniya svobody predprinimatel’stva. M., 2002. S. 12.

8See, e.g.: Christoffersen J. Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights. Leiden; Boston, 2009. P. 1, 31.

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Aims, objectives and subject-matter of study

My aim is to elucidate the meaning and content of the principle of proportionality in international law, given its place in the genealogy of international legal thought and the dynamics of its use in international legal disputes.

The subject-matter of my study is the principle of proportionality as it is interpreted by international law doctrine and by practitioners of international law (including in contexts of adjudication). I look at the principle of proportionality though the lens of opinions held by lawyers in disputes about the meaning and content of this principle, and reasons they use to challenge opinions of their opponents. In other words, I study not rules, principles and concepts of international law per se but rather how these rules, principles and concepts are understood by lawyers within professional discourse. I assume that the meaning and content of studied phenomena do not exist “objectively”, or independently of how they are imagined by their scholars and “users”.9 Such meaning and content can be identified only through the analysis of “discourse” and its “grammar”,10 or, to use the terminology of similar studies, through the analysis of “modes of argument”,11

“discursive practices”,12 “legal thought”,13 or “legal consciousness”.14 Here, disagreements between discourse participants reflect the internal contradictions of the phenomenon itself.

Such a shift in focus allows me to address the following objectives: 1) to track the intellectual genealogy of proportionality;

9I.e., parties to judicial proceedings, judges, experts and lawyers acting in other practical contexts.

10Koskenniemi M. From Apology to Utopia: The Structure of International Legal Argument. 2nd ed. N.Y.; Cambridge, 2005. P. 4 ff.

11Kennedy, David, Fisher III W.W. Introduction // The Canon of American Legal Thought / Ed. by D. Kennedy, W.W. Fisher III. Princeton, Oxford, 2006. P. 1-16, 1-3.

12Kennedy, Duncan. A Transnational Genealogy of Proportionality in Private Law // The Foundations of European Private Law / Ed. by R. Brownsword, H.-W. Micklitz, L. Niglia. Oxford; Portland, 2011. P. 185-220, 189.

13Kennedy, Duncan. Three Globalizations of Law and Legal Thought: 1850-2000 // The New Law and Development: A Critical Appraisal / Ed. by D.M. Trubek, A. Santos. N.Y.; Cambridge, 2006. P. 19-73, 19-25.

14Lapayeva V.V. Tipy pravoponimaniya: pravovaya teoriya i praktika. M., 2012. S. 11-28.

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2) to identify the initial theoretical assumptions that contemporary scholars and

“users” of proportionality share, and find out how these assumptions affect application of proportionality in specific disputes;

3) to show the limits of both the mainstream thinking about proportionality and its existing critiques.

Existing knowledge: theory, doctrine and practice

In my study, I use, discuss and challenge ideas espoused by lawyers of different schools of thinking and different generations. These ideas are expressed in writings in international legal theory, doctrinal studies of international law as well as writings in general legal theory and other fields of law.

I use writings in international legal theory by Stanislav Chernichenko, Richard Falk, Thomas Franck, Rosalyn Higgins, David Kennedy, Martti Koskenniemi,

Hersch Lauterpacht, Igor’ Lukashuk, Larry May, Myres McDougal, Hans Morgenthau, Tatyana Neshataeva, Michael Newton, Georg Nolte, Lassa Oppenheim, Oscar Schachter, Vladislav Tolstykh, Grigory Tunkin, and others. I also use textbooks edited by Kamil’ Bekyashev, Sergey Egorov, Gennady Ignatenko,

Fyodor Kozhevnikov, Oleg Tiunov, Bakhtiyar Tuzmukhamedov, Alexander Vylegzhanin, and others.

Doctrinal international legal studies include writings by Roberta Arnold, Rogier Bartels, Eyal Benvenisti, Paolo Benvenuti, Geoffrey Best, Igor’ Blischenko,

Gabriella Blum, Michael Bothe, Ian Brownlie, Gráinne de Búrca, Enzo Cannizzaro, Jonas Christoffersen, Eric David, Louise Doswald-Beck, Omer Elagab, Kirill Entin, William Fenrick, Judith Gardam, Sergey Golubok, Steven Greer, Jean-Marie Henckaerts, Aleksey Ispolinov, Ruben Kalamkaryan, Benedict Kingsbury, Anatoly Kovler, David Kretzmer, Hersch Lauterpacht, Andrew Legg, George Letsas, David Levin, Martin Luteran, Theodor Meron, Roger O’Keefe, Stefan Oeter, Jean Pictet,

Arkady Poltorak, Julian Rivers, Vera Rusinova, Yves Sandoz, Lev Savinskiy, Stephan Schill, Michael Schmitt, Givi Sharmazanashvili, Galina Shinkaretskaya,

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Eduard Skakunov, Anait Smbatyan, J.M. Spaight, Vladislav Starzhenetskiy, Christophe Swinarski, Stavros Tsakyrakis, Vladimir Vasilenko, Karl Zemanek, Bruno Zimmermann, and others.

I also use writings in general legal theory and, insofar as relevant to the topic of proportionality, writings in other fields of law (including constitutional law). These are the writings by Robert Alexy, Aharon Barak, David Beatty, Sergey Belov, Jacco Bomhoff, Ilya Chestnov, Moshe Cohen-Eliya, Dmitry Dedov, Ronald Dworkin, Thomas Grey, Jürgen Habermas, H.L.A. Hart, Vicki Jackson, Artyom Karapetov, Hans Kelsen, Duncan Kennedy, Mattias Kumm, Valentina Lapayeva, Gennady Maltsev, Jud Mathews, Kai Möller, Iddo Porat, Roscoe Pound, Wojciech Sadurski, Frederick Schauer, Bernhard Schlink, Cass Sunstein, Alec Stone Sweet, Elena Timoshina, Vladimir Tumanov, Roberto Unger, Francisco Urbina, Natalya Varlamova, Max Weber, Valery Zor’kin, and others.

I also use materials of legal practice: documents of international organizations, including documents of the International Law Commission; judgments and other documents in proceedings before international courts, including the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, the European Court of Human Rights, as well as arbitral tribunals and national courts.

Methodology of study

This study relies on the methodology of critical structuralism as developed in critical legal studies (critical legal theory) since 1970s.15 In this study, I use the following three elements of this methodology:

1) reducing an infinite number of doctrinal and practical opinions about a particular legal concept to a limited set of initial theoretical assumptions that make

15 See Koskenniemi M. What is Critical Research in International Law? Celebrating Structuralism // Leiden Journal of International Law. 2016. P. 727-735. See two prominent international law texts that rely on this methodology: Kennedy, David. International Legal Structures. Baden-Baden, 1987; Koskenniemi M. From Apology to Utopia: The Structure of International Legal Argument (Op. cit.).

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these opinions possible (identifying a “deep structure” or “langue” that all

individual opinions (“speech acts” or “paroles”) reproduce);

2)analyzing the elements of the “deep structure” through conceptual oppositions (e.g., “law – politics”, “facts – values”, etc.);

3)showing mutual dependence between the opposite elements of the “deep structure” that makes it impossible to prefer one to the other (“deconstruction”).

Critical structuralism, therefore, does not separate theoretical aspects of the studied subject-matter from its doctrinal and practical aspects. Rather, it studies theory, doctrine and practice as a single whole. This approach reveals the stereotypical nature of discourse on the studied subject-matter and identifies a limited set of typical intellectual “moves” that this discourse consists of, irrespective of a particular doctrinal topic and (or) a particular practical context. This approach also links surface problems of interpretation of legal concepts to deeper theoretical contradictions, and explains why they cannot be solved. Instead of a “solution” to a given theoretical or practical problem (e.g., which formula or test of proportionality is the “right” one?), critical structuralism prompts lawyers to study the dynamics of argument about that problem (how do lawyers defend their formulae of proportionality? and why does any proposed formula appear problematic?). It also

reveals the historic and social contingency of any “solutions” (in whose interests and with what consequences do lawyers use proportionality in specific disputes?).16

Contribution to scholarship

This is the first systematic study of the international law principle of proportionality in Russian scholarship. This is also the first attempt to consider the principle of proportionality from the standpoint of critical legal theory.

16 See Chestnov I.L. Diskurs-analiz kak postklassicheskaya paradigma interpretatsii prava // Yuridicheskaya germenevtika v XXI veke: monografiya / pod obshch. red. E.N. Tonkova, Yu.Yu. Vetyutneva. SPb., 2016. S. 171-198, 189 (noting that “discourse analysis in its postclassical version of criticial discourse analysis aims at identifying the mechanisms of power and hegemony in social practices through the analysis of texts and language usage”).

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I submit the following thesis statements that make an original contribution to

scholarship:

1.The principle of proportionality is not identical to basic principles of international law. It does not directly confer any rights or impose any duties on international legal actors but rather reconciles their already existing rights and obligations stemming from the applicable international legal rules and principles, based on the social consequences of particular conduct in the circumstances of individual cases. The very resort to the principle of proportionality in a particular legal dispute means that principles and rules of international law have been exhausted: they are insufficient to resolve the dispute, so that a decision-maker needs an additional method to ascertain their normative content.

2.The rise of the principle of proportionality signified rupture in the conceptual foundations of international law. The principle of proportionality has become

established in international law in the middle to the second half of the XX century. It is a historically contingent manifestation of pragmatism as a mode of legal thought. The three basic ideas that define the principle of proportionality are: (a) its function of reconciling, or striking a balance between, interests of parties to a dispute (b) while taking into account the social objectives of international law and (c) individual circumstances of specific cases. There is no genealogical relationship between the contemporary principle of proportionality and other historical versions of proportionality.

3.The initial assumption behind the mainstream understanding of the principle of proportionality is a belief that this principle sustains the “third space” between law and politics – a space that allows for open compromise-seeking between opposite political positions (international law’s “relevance”) within boundaries set by law (international law’s “autonomy”).

4.The content of the principle of proportionality is determined by the relationship between two mutually exclusive approaches – the facts approach and the values

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approach. The facts approach views proportionality as a proportion between benefit and harm. The values approach views proportionality as a proportion between means and ends. All existing doctrinal interpretations of proportionality reduce to the juxtaposition of these two approaches. Examples of this juxtaposition include: in the law of international responsibility – the quantitative and the qualitative approaches to proportionality of countermeasures; in international humanitarian law – proportionality as a proportion between military advantage and civilian harm, on the one hand, and proportionality as the test of least deleterious means, on the other; in international human rights law – the balancing approach and the categorical approach.

5.The principle of proportionality is unable to ensure international law’s “autonomy”. Since the facts approach and the values approach logically rely on each other, there is no common frame of reference (spectrum, “scales”, etc.) that could be used to assess proportionality of any particular action. The indeterminacy of the principle of proportionality is not relative but absolute.

6.The principle of proportionality is unable to ensure international law’s “relevance”. Logical interdependence of the facts and the values approaches reduces application of proportionality to a series of mutual referrals between the two approaches. Courts interrupt this dynamics using a “strategy of evasion”: they formulate a conclusion on proportionality in such a way as to avoid dealing with the crux of the dispute.

7.Proportionality argument is circular. In particular, the idea of the linear step- by-step “proportionality test” (legitimate aim; suitability; necessity; proportionality stricto sensu) is logically flawed. The structure of proportionality argument consists of alternate challenges to one’s opponent’s description of facts or values as either “irrelevant” or “non-autonomous”. The universal scheme of argument looks like this:

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(a) Values can be constructed as a guarantee of “fairness” as opposed to “rigid”

factual comparisons;

(b) Facts can be used as “objective” evidence against “arbitrary” value

assessment;

(c)Values can be deployed as a guarantee of “legality” as opposed to “manipulable” facts;

(d)Facts can be portrayed as a “meaningful” expression of context against “abstract” values.

Any conclusion about proportionality of particular action, reached through this structure, is at once legally correct and legally problematic. Therefore, the very question of whether (or to what extent) a decision-maker is “free” or “legally bound” in his/her assessment of proportionality is meaningless.

8.The principle of proportionality in international law comes in three types:

“horizontal”, “vertical” and “mixed”, reflecting differences between specific regimes of international law.

Theoretical and practical significance of study

The theoretical significance of my study is that it points to the assumptions behind the principle of proportionality and its origins in international law, linking the rise of the principle of proportionality to transformations in international legal thought. It identifies the content of this principle, defined by the juxtaposition of two mutually dependent yet conceptually opposite approaches. It challenges the existing views on the principle of proportionality from the law vs. politics standpoint. It offers a new perspective on proportionality as a circular legal argumentative practice and sketches the overall structure of proportionality argument.

The practical significance of my study is that it provides international lawyers with an analytical toolkit that can help better understand the dynamics of proportionality argument in international law disputes. This analytical toolkit can be used by lawyers in litigation before international and national courts, when drafting