vaipan_g_v_disser

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relation has an inbuilt restriction on the range of lawful behavior, since it prohibits an interference with an interest for the sake of another interest if doing so would be

“too much”, or out of proportion to the relative importance of that other interest. Therefore, scholars argue that proportionality “is an elastic concept, but not indefinitely elastic”,57 that it amounts to a “form of legal control”58 and a “rule of containment”.59 Lawyers easily concede that the principle of proportionality does not guarantee absolute determinacy and objectivity of adjudication and admits of

“hard cases” and “grey areas”.60 At the same time, the mainstream understanding of proportionality assumes that this principle, by its very nature, can help distinguish between disputable actions (the proportionality of which might be a matter of reasonable disagreement) and manifestly disproportionate actions. As such, it seems to offer an acceptable level of law’s “autonomy”. A good example of standard rhetoric is a judgment of the Supreme Court of Israel in a case concerning the legality of “targeted killings” of suspected terrorists under international law. One aspect of the case was the requirement that collateral damage inflicted on the civilian population during counter-terrorism operations be proportionate. The court summarized the content of proportionality as follows:

The rule is that combatants and terrorists are not to be harmed if the damage expected to be caused to nearby innocent civilians is not proportionate to the military advantage in harming the combatants and terrorists. Performing that balance is difficult. … [O]ne must proceed case by case, while narrowing the area of disagreement. Take the usual case of a combatant, or of a terrorist sniper shooting at soldiers or civilians from his porch. Shooting at him is proportionate even if as a result, an innocent civilian

“force field” where the outcome of a balancing exercise is a “resultant” rather than just derivation from one of the competing interests); Cannizzaro E. Proportionality in the Law of Armed Conflict (Op. cit.), p. 335-336 (pointing out that “[t]he degree and forms of the protection accorded to either interest strictly depend on the prejudice that this protection might inflict upon the other”); Newton M., May L. Op. cit., p. 165 (describing the essence of proportionality through the metaphor of a “seesaw”).

57O’Donovan O. The Just War Revisited. Cambridge, 2003. P. 62 (cited in Franck T.M. Op. cit., p. 727).

58Cannizzaro E. Proportionality in the Law of Armed Conflict (Op. cit.), p. 333.

59Newton M., May L. Op. cit., p. 165.

60See, e.g.: Belov S.A. Op. cit., s. 75 (observing that the “mechanism of balancing does not yet completely exclude an irrational choice of a value standard of decision-making in hard constitutional cases”) (emphasis added. – G.V.).

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neighbor or passerby is harmed. That is not the case if the building is bombed from the air and scores of its residents and passersby are harmed… The hard cases are those which are in the space between the extreme examples.61

This mainstream understanding of the principle of proportionality may be pictured as a spectrum (Chart 1):

Actor A

Actor B

Disproportionate	Proportionate
actions	actions

Chart 1. How proportionality works:

The mainstream view.

This spectrum shows a conflict of interests between two international legal subjects. The middle of the spectrum corresponds to the middle-ground, the right balance between the legitimate interest of subject B (for example, pursuing a military operation during an armed conflict) and the legitimate interest of subject A affected by actions of subject B (for example, protection of its civilian population). The middle of the spectrum draws a line between proportionate (right part of the spectrum) and disproportionate (left part of the spectrum) means to pursue B’s interest. The endpoints of the spectrum represent the “extreme” cases, as described in the quoted passage above. The boundary between proportionate and disproportionate actions here is approximate; it is a “grey area” rather than a precise

61 Supreme Court of Israel. HCJ 769/02. The Public Committee Against Torture et al. v. The Government of Israel et al. [2006]. Judgment. URL: http://elyon1.court.gov.il/Files_ENG/02/690/007/a34/02007690.a34.HTM. § 46. For an international law analysis of “targeted killing” practices, see, e.g.: Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston. Addendum. Study on targeted killings. U.N. Doc. A/HRC/14/24/Add.6 (2010); Melzer N. Targeted Killing in International Law. Oxford, 2010.

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point. Yet it actually exists and may be relied upon as a normative standard since every finite range necessarily has a midpoint.

The described duality of proportionality reflects the professional consciousness of the pragmatic legal mainstream. Although disenchanted with the dogmatic certainty of the law, the mainstream is unwilling to consider proportionality a mere rhetorical tool deployed to serve political aims. As Jacco Bomhoff observes, the methodology of balancing and proportionality encompasses both an “explicit abandonment of the ideals of legal formality” and an “explicit effort to stretch legal formality as far as it can go”.62 Notably, these two guises of the principle of proportionality always go hand in hand in contemporary writing. For instance, Dmitry Dedov, the author of the only theoretical study of proportionality in the Russian scholarship, argues that, on the one hand, the principle of proportionality

“brings law closer to the realities of human action, as informed by individual interest”,63 but, on the other hand, claims that proportionality “essentially sets limits on power”.64 Proportionality is a hope for contemporary lawyers in their attempt to construct a “third space” (to borrow Duncan Kennedy’s term)65 between politics and law, or, in other words, to “reject mechanical jurisprudence without rejecting the notion of law”.66

The existing critiques of proportionality also confirm that the combination of

“relevance” and “autonomy” is indispensable for a sustainable concept of proportionality. The mainstream account of proportionality faces criticism from two

62Bomhoff J. Op. cit., p. 583. The author also notes that “[b]alancing and proportionality tests can … be seen as either predominantly substantive, extra-legal arguments that have been formalized to an unusual extent, or as unusually substance-dependent forms of (formal) legal argument” (Ibid., p. 582).

63Dedov D.I. Op. cit., s. 7.

64Ibid.

65Kennedy, Duncan. A Semiotics of Legal Argument // Collected Courses of the Academy of European Law. 1994. Vol. III. Book 2. P. 309-365, 318. A similar metaphor is Aharon Barak’s “zone of proportionality” (see Barak A. Op. cit., p. 415-418).

66Aleinikoff T.A. Constitutional Law in the Age of Balancing // Yale Law Journal. 1986-1987. P. 943-1005, 949. See also: Beatty D. Op. cit., p. 185, 187 (arguing that the principle of proportionality “makes pragmatism the best it can possibly be” and amounts to “the ultimate rule of law”).

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opposite directions – one challenges proportionality’s “relevance”, the other its “autonomy”.

On the one hand, the principle of proportionality is perceived as a threat to law’s “autonomy”. Since proportionality is a move from norms to values, it destroys, according to Jürgen Habermas, a “fire wall”67 between legal principles and political considerations, and “robs the law of its … claim to normative validity”.68 Insofar as people naturally disagree about which courses of action are valuable or desirable and which are not, application of the principle of proportionality becomes a matter of unfettered discretion.69 Moreover, certain social interests that claim special status within a legal system (e.g. human rights) lose their absolute normative priority over other social interests.70

On the other hand, the principle of proportionality is said to undermine law’s “relevance”. This critique comes from two opposite angles but in both instances the target of attack is proportionality’s formalization of competing interests and of their evaluation. Under one strand of critique, proportionality is flawed because it extends legal regulation to those kinds of action which should be a matter of free will for legal subjects. Hence the predictable statements by governments that any additional

67Habermas J. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Cambridge, (MA), 1996. P. 258.

68Habermas J. Reply to Symposium Participants, Benjamin N. Cardozo School of Law // Cardozo Law Review. 1996. P. 1477-1557, 1532.

69Ibid., p. 1531-1532 (arguing that “[b]y … assimilating ought-statements to evaluations, one opens the way to legitimating broad discretionary powers”). See also: Zemanek K. The Unilateral Enforcement of International Obligations // Max-Planck-Institut für Ausländisches Öffentliches Recht und Völkerrecht. 1987. Vol. 42. P. 32-43, 42 (noting that proportionality is a “dangerous principle” since it amounts to an “empty formula” and “[t]he perception of the parties might in good faith be different” as to whether particular conduct is proportionate or not); Brownlie I. International Law and the Use of Force by States. Oxford, 1963. P. 263-264 (proportionality in the law on the use of force has a “functional defect”, manifesting itself in a state’s discretion to determine the exact amount of force to be used in self-defence, and therefore may cause spiraling violence).

70See, e.g.: Webber G. The Negotiable Constitution: On the Limitation of Rights. Cambridge; N.Y., 2009. P. 100; Timoshina E.V., Krayevskiy A.A. Problemy yuridicheskoy argumentatsii v situatsii konkurentsii prav cheloveka:

“vzveshivaniye” pravovykh printsipov ili tolkovaniye pravovykh norm? // Yuridicheskaya germenevtika v XXI veke: monografiya / pod obshch. red. E.N. Tonkova, Yu.Yu. Vetyutneva. SPb., 2016. S. 243-278, 249-250, 257-262, 278; Customary International Humanitarian Law / Ed. By J.-M. Henckaerts, L. Doswald-Beck. Vol II. Part 1. N.Y.; Cambridge, 2005. P. 314 (during the adoption of the 1977 Additional Protocol I to the 1949 Geneva Conventions, Romania, along with several other states, opposed the codification of the “rule of proportionality” since it “amounted to legal acceptance of the fact that one part of the civilian population was to be deliberately sacrificed to real or assumed military advantages”).

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evaluation of “necessity” or “proportionality”, etc. of their actions would hamper the pursuit of their legimitate national interests in particular contexts.71 Under another strand of critique, proportionality is flawed because its technical vocabulary leaves no room for moral values and meaningful human rights protection. In this vein, some argue that proportionality “constitutes a misguided quest for precision and objectivity in the resolution of human rights disputes”72 and thereby “deprives society of a moral discourse that is indispensable”.73 Moreover, sometimes the very idea of interest balancing is declared unacceptable as being contrary to social realities.74 Despite being ideologically opposite, these two critiques of “irrelevance” boil down to a common point: the principle of proportionality makes international law too formalistic, too technical, and ultimately unpersuasive; international law loses its moral authority, and international actors no longer have incentives to follow it.

Summing up, the combination of “relevance” and “autonomy” underlying the principle of proportionality comes under attack from both sides. This principle is challenged as an insufficiently legal one, or as an antisocial and an immoral one, or even both.75 Are these critiques justified? Can proportionality be both “relevant” and

“autonomous”? How sustainable is an attempt to create a “third space” between law

71See, e.g.: Customary International Humanitarian Law / Ed. By J.-M. Henckaerts, L. Doswald-Beck. Vol II. Part 1. N.Y.; Cambridge, 2005. P. 311 (during the adoption of the Additional Protocol I France argued that provisions on proportionality “by their very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the exercise of the inherent right of legitimate defence”).

72Tsakyrakis S. Proportsional’nost’: posyagatel’stvo na prava cheloveka? // Sravnitel’noye konstitutsionnoye obozreniye. 2011. No. 2. S. 47-66, 47 [Translated from: Tsakyrakis S. Proportionality: An Assault on Human Rights? // International Journal of Constitutional Law. 2009. P. 468-493, 468].

73Ibid., s. 63 [p. 493 in original]. See also: Best G. War and Law since 1945. Oxford; N.Y., 1994. P. 324 (lamenting that “such indispensable and noble words as proportionality … are in themselves so lumbering, unattractive and inexpressive”).

74See, e.g.: Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996 // I.C.J. Reports 1996. P. 515-516, 520. Dissenting Opinion of Judge Weeramantry (arguing that it is impossible to apply the principle of proportionality to the use of nuclear weapons because “one can measure only the measurable[; w]ith nuclear war, the quality of measurability ceases[; t]otal devastation admits of no scales of measurement[; w]e are in territory where the principle of proportionality becomes devoid of meaning”; moreover, the idea of proportionality is unacceptable with regard to nuclear weapons, since the accompanying risk of the destruction of human society “is a risk which no legal system can sanction”).

75See Urbina F. A Critique of Proportionality and Balancing. Cambridge, 2017.

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and politics using the principle of proportionality? To answer these questions, we will need to trace the genealogy of proportionality and identify its constitutive assumptions within pragmatism itself.

The origins of the principle of proportionality in international legal thought of the XX century

It is not infrequently argued that the notion of proportionality, as an expression of equity, has always been an integral part of international legal thought and dates back to the writings of philosophers of Ancient Greece and Rome.76 However, such a linear account of proportionality is superficial. It takes into account only surface manifestations of law but not deeper transformations of legal thinking in different historic periods.

First, although ideas of reasonableness, equity and balance have always been present in international law (and law in general) to some extent, the term

“proportionality” has not entered the professional vocabulary of international lawyers until after the First World War, and has not reached most areas of international law until after the Second World War.77

Second, earlier statements that can be understood as references to proportionality endowed this concept with a meaning specific to the legal consciousness of a particular period. These meanings were notably different from a contemporary understanding of proportionality. In particular, the concept of

76See, e.g.: Luteran M. Towards Proportionality as a Proportion Between Means and Ends // Law and Outsiders: Norms, Processes and “Othering” in the 21st Century / Ed. by C.C. Murphy, P. Green. Oxford; Portland, 2011. P. 3- 22, 8-10; Christoffersen J. Op. cit., p. 33-35; Crawford E. Proportionality // Max Planck Encyclopedia of Public International Law. URL: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1459.

77See, e.g.: Best G. Op. cit., p. 323 (observing that, in international humanitarian law, “[o]nly after 1945 did

[proportionality] come out of the closet”); I.L.C. Third Report on State Responsibility, by Mr. Gaetano Arangio-Ruiz, Special Rapporteur. U.N. Doc. A/CN.4/440 and Add. 1 (1991). § 63 (arguing that, in the law of countermeasures, the rule of proportionality materialized “in the period following the First World War”); Brownlie I. Op. cit., p. 261 (noting that, in the law on the use of force, “[i]t was not until the period of the League that [proportionality] was mentioned with any frequency”). In the League of Nations documents, the term “proportionality” was first mentioned in 1926, as part of a discussion on lawful preconditions for the use of force. See Doklad de Brukera o st.st. 11 i 16, obsuzhdonnyy komitetom Soveta. 1-4 dekabrya 1926 g. [Report by Mr. de Brouckère on Articles 11 and 16, discussed by the committee of the Council] // Sbornik dokumentov po mezhdunarodnoy politike i pravu. Vyp. XI. M., 1937. S. 176-191, 184.

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proportionality in just war theories of international law prior to the XIX century reflected the fusion of legal and moral considerations in the professional discourse of the time. Proportionality was not about comparison and reconciliation of conflicting interests but rather an expression of a legal-moral entitlement: “A just war, ipso facto, was a proportional one”.78 Later, the use of proportionality in the legal debates of the XIX century about the limits of lawful self-defence was merely a way to differentiate between the terms “self-defence” and “self-preservation”.79

That was fully in line with the prevalence of dogmatic, conceptual reasoning of that period. In both these instances, references to proportionality had nothing in common with today’s anxiety of international lawyers about the distinction between law and politics.

Third, studies on legal theory also do not suggest any genealogical relationship between the various historical versions of proportionality.80

Instead, proportionality in the contemporary sense – a principle deployed to generate contextual compromise solutions for competing interests – is a product of twentieth-century international legal pragmatism. The latter was born in the period between the two World Wars at the intersection of two critiques of formalism. One associated formalism with an outdated conceptual apparatus of traditional international law derived from the ideas of state sovereignty. It argued in favor of an alternative international law based on the ideas of global solidarity and social

78Gardam J. Op. cit., p. 8-9. See also: Ibid., p. 33. On the synthesis of law and morality in early international law discourse, see: Kennedy, David. Primitive Legal Scholarship // Harvard International Law Journal. 1986. P. 1-98.

79Ian Brownlie argued that the famous formula of proportionality in self-defence used in diplomatic correspondence after the famous Caroline incident of 1837 “in reality merely stated a right of self-defence which had a more limited application than the vague right of self-preservation” (Brownlie I. Op. cit., p. 261). See also: Skakunov E.I.

Samopomoshch’ kak forma prinuditel’nogo obespecheniya sub’yektivnykh prav gosudarstva. Dis. … kand. yurid. nauk. L., 1970. S. 125-126. On formalism in international legal thought of the XIX century, see: Kennedy David. International Law in the Nineteenth Century: History of an Illusion // Nordic Journal of International Law. 1996. P. 385-420.

80Kennedy, Duncan. A Transnational Genealogy of Proportionality in Private Law (Op. cit.), p. 195-206; CohenEliya M., Porat I. American Balancing and German Proportionality: The Historical Origins // International Journal of Constitutional Law. 2010. P. 263-286, 274-276 (noting that, contrary to popular belief, the late XVIII – early XIX century doctrine of proportionality in German law was essentially formalist and “was not related to realistic or pragmatic theories of law”. That doctrine is therefore distinct from the contemporary concept of proportionality, including in German legal theory (see also below, chapter IV of this study)).

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progress. The other, to the contrary, blamed traditional international law for its dogmatic approach and, in consequence, for being out of touch with the realities of power relations and inequality between States. This clash of theories is known as the idealism vs. realism debate of the first half of the XX century.81 Pragmatism in international legal theory and practice emerged as an amalgam of these two approaches yet an attempt to avoid the extremes of the two. The result was a new mode of international legal thought that included the two inconsistent philosophies of idealism and realism, and was therefore ambivalent from the outset.

I will now discuss the origins of the principle of proportionality by reference to the writings of two international lawyers who in the inter-war and post-Second World War period set the stage for pragmatic thinking – Hersch Lauterpacht and Hans Morgenthau. For the purposes of this study, I call Lauterpacht’s approach idealist pragmatism, and Morgenthau’s approach realist pragmatism. Each has articulated three main ideas of pragmatism that would later define contemporary proportionality discourse: 1) the social function of international law; 2) contextuality of international law; and 3) balancing of interests as a method of legal decision-making. At the same time, Lauterpacht and Morgenthau attributed diametrically opposite meanings to these ideas. This comparison illustrates the ambivalence of pragmatism.

Idealist pragmatism: Hersch Lauterpacht

The scholarship of Hersch Lauterpacht (1897-1960), a British international lawyer and a Judge of the International Court of Justice (1955-1960), has linked nineteenth-century liberal rationalism with contemporary pragmatism.82 On the one

81On the idealism vs. realism debate and the main arguments of its participants, see, e.g.: Koskenniemi M. History of International Law, World War I to World War II // Max Planck Encyclopedia of Public International Law. URL: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e715; Lauterpacht H. On Realism, Especially in International Relations // International Law, Being the Collected Papers of Hersch Lauterpacht / Ed. by Elihu Lauterpacht. Vol. 2. Cambridge, 1975 [1953]. P. 52-66. Idealism may be associated with, among others, Walther Schücking and Nikolaos Politis, realism with E.H. Carr.

82See Koskenniemi M. The Gentle Civilizer of Nations (Op. cit.), p. 361.

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hand, Lauterpacht regarded law as a vehicle of international progress, an expression of the “unity of the human race and of the growing and inescapable interdependence of States”.83 Law, on this account, was “something more comprehensive than the sum total of its positive rules”:84 it was a system which through its general principles and maxims gave effect to the demands of social justice and the needs of the international community.85 Thus, Lauterpacht passionately criticized those areas of international law where positive rules, because of their formalism and rigidity, allowed States to exercise their rights in an anti-social manner.86 On the other hand, Lauterpacht recognized that a true international community must necessarily give effect to states’ independence and autonomy. Where legitimate interests of states collided and the issue was what kind of solution was beneficial for the international community, the principles of international law did not supply a ready answer. Instead, an international judge confronted a “necessity of making a choice … between varying and conflicting principles of acknowledged validity”.87 In such a case the judge, according to Lauterpacht, must ensure a compromise between interests embodied in such principles.88 As examples of such an approach, Lauterpacht cited with approval the arbitral awards given by his Swiss contemporary, Max Huber, in Island of Palmas89 and Spanish Zone of Morocco Claims90 cases. Both cases were decided on the basis of the then innovative (pragmatic) idea of “coexistence of interests”:

83Lauterpacht H. On Realism, Especially in International Relations (Op. cit.), p. 59.

84Lauterpacht H. The Function of Law in the International Community. Oxford, 1933. P. 80.

85Ibid., p. 304-306.

86See Lauterpacht H. General Rules of the Law of Peace // International Law, Being the Collected Papers of Hersch Lauterpacht / Ed. by Elihu Lauterpacht. Vol. 1. Cambridge, 1970 [1937]. P. 179-444, 383-390 (on rules regarding state responsibility); Lauterpacht H. Sovereignty over Submarine Areas // British Yearbook of International Law. 1950. P. 376-433, 376-379 (on rules regarding freedom of high seas).

87Lauterpacht H. The Development of International Law by the International Court. L., 1958. P. 396.

88See Lauterpacht H. General Rules of the Law of Peace (Op. cit.), p. 388.

89Island of Palmas case (Netherlands v. United States) // 2 R.I.A.A. 829 (Permanent Court of Arbitration, 1928).

90Affaire des biens britanniques au Maroc espagnol (Espagne c. Royaume-Uni) // 2 R.I.A.A. 615 (Permanent Court of Arbitration, 1924).

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It is accepted that every law aims at assuring the coexistence of interests deserving of legal protection. That is undoubtedly true also of international law. The conflicting interests in this case ... are, on the one hand, the interest of the State in the exercise of authority in its own territory without interference or supervision by foreign States, and, on the other hand, the interest of the State in seeing the rights of its nationals in a foreign country respected and effectively protected.91

Lauterpacht defended the view that an international court could decide between conflicting claims of sovereignty even if no positive rule was available to exhaustively resolve the controversy.92 The court was supposed to proceed not by engaging in formalist interpretation of the notion of sovereignty but rather “in a constructive spirit with its eyes on the practical necessities of international life”93 and as a “free agent acting with due regard to the needs of the [international] community”.94 However, that freedom was ultimately only relative, limited by the duty of the court to apply the law, even if broadly defined.95

This brought Lauterpacht to the point that every legal solution was necessarily contextual, tailored to the circumstances of a particular dispute. Cases “cannot be decided by an abstract legislative rule, but only by the activity of courts drawing the line in each particular case”,96 he argued. Principles and rules of international law were “no more than trends”97 which – cumulatively – played a role in the decision, although at the end there was always a gap between those principles and what Lauterpacht called “the legal rule for the individual case”.98 Commenting on the interpretation given to Article 16 of the Covenant of the League of Nations by the League Assembly in the Manchurian crisis (1931-1932), Lauterpacht remarked:

91Ibid., p. 640. For a review of both cases, see Lauterpacht H. The Function of Law (Op. cit.), p. 119-121.

92See Lauterpacht H. General Rules of the Law of Peace (Op. cit.), p. 389.

93Lauterpacht H. The Development of International Law (Op. cit.), p. 282.

94Ibid., p. 283.

95Ibid., p. 399.

96Ibid., p. 162.

97Ibid., p. 293.

98Lauterpacht H. The Function of Law (Op. cit.), p. 255.