vaipan_g_v_disser

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France and the United States. But how should symmetry be measured? For France, the US countermeasure was not equivalent to the initial French action because the French carrier would have suffered far more economic losses than the US carrier: the countermeasure “would have entailed an economic prejudice far exceeding that suffered by Pan Am”.294 Moreover, according to France, there could have been no equivalence between the long-established and undisputed Air France service and the new and legally contested Pan Am service.295 The United States, to the contrary, defined proportionality as “equivalen[ce] in law”,296 as service-for-service equivalence: “[S]ince the French action had effectively denied Pan Am the right to operate a West Coast – Paris service, it was appropriate to deny the French carrier its rights on a symmetrical route”.297 Moreover, the United States claimed that

Pan Am would actually have operated more flights than Air France and thus was more affected: “In fact, Air France operated its Los Angeles – Paris round trip service only three times a week while the Pan Am service would have been six times a week”.298

The tribunal was faced with competing interpretations of symmetry, and it did not have any legal criteria to justify a choice between them. At the same time, it could not simply prefer one factual picture to another without compromising its judicial function. Resort to values was required. Therefore, in what was a change of perspective from quantitative to qualitative proportionality, the tribunal said:

[I]t is essential, in a dispute between States, to take into account not only the injuries suffered by the companies concerned but also the importance of the questions of principle arising from the alleged breach299 (emphasis added. – G.V.).

294Ibid., p. 427-428, § 17.

295Air Service, p. 427, § 17.

296Air Service. Memorial submitted by the United States (cit.: Digest of United States Practice in International Law. 1978. P. 776).

297Damrosch L.F. Retaliation or Arbitration – or Both? The 1978 United States-France Aviation Dispute // American Journal of International Law. 1980. P. 785-807, 791.

298Air Service. Memorial submitted by the United States (Op. cit.), p. 770.

299Air Service, p. 443, § 83.

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The aim of a countermeasure, according to the tribunal, was “to restore equality between the Parties”.300 The problem, however, was that the parties had different views on what “equality” meant in their bilateral relations. They understood the

“questions of principle” differently. So while the United States ironically highlighted

France’s bias in the matter (“France apparently attaches a subjectively higher degree of importance to its own service”),301 the United States itself was no less subjective, as was evident, for example, from its declared aim of “restoring Pan Am’s rights”.302

What to France looked like impermissible economic pressure and retribution, for the United States was necessary protection of its interests. Why would the US’ principled position be more valuable than that of France? The tribunal had to acknowledge that, should appreciation of values differ, qualitative proportionality did not help to establish legal priority between their competing interpretations:

The scope of the United States action could be assessed in very different ways according to the object pursued; does it bear on a simple principle of reciprocity measured in economic terms? Was it pressure aiming at achieving a quicker procedure of settlement? Did such action have, beyond the French case, an exemplary character directed at other countries and, if so, did it have to some degree the character of a sanction? … [I]t is understandable that France may have construed the procedures adopted by the United States in a way other than may have been intended by the United States.303

So, in order to substantiate a particular vision of the “questions of principle”, the tribunal had to turn back to facts. Widening the perspective of the dispute, it relied on the fact that the United States entered into a large number of bilateral air transport agreements with third countries, and therefore its acquiescence in a restrictive interpretation of its agreement with France (which France insisted on when it did not approve the Pan Am service) could place it at an economically

300Air Service, p. 444, § 90.

301Air Service. Memorial submitted by the United States (Op. cit.), p. 776.

302Ibid., p. 770.

303Air Service, p. 442-443, § 78.

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disadvantageous position vis-à-vis these third countries.304 The tribunal therefore came to the following overall conclusion: “[T]he measures taken by the United States d[id] not appear to be clearly disproportionate when compared to those taken by France”.305

But this factual picture was, of course, vulnerable to challenge from an opposite perspective. In his Dissenting Opinion, the French arbitrator Paul Reuter argued that the tribunal failed to assess proportionality “on the basis of what actually constituted the dispute” (emphasis added. – G.V.):306 in fact, it was France who was an economically weaker party, and the restrictive interpretation of the air service agreement was required precisely to remedy the inequality between the two States, to prevent an economically more powerful state to impose its “flexible” air transport policies on weaker states without appropriate compensation.307

Why would either one of those factual considerations be relevant and would have to be included in the proportionality calculus? In order to justify its economic perspective, the United States would need to advance and justify a theory of countermeasures that have an “exemplary character directed at other countries”,308 and France would have to argue for the sparing use of countermeasures against weaker countries to allow them more latitude in economic policy. As none of those visions would be deducible from abstract “equality” or “necessity”, each party would have to rely further on the facts of the case. And so on.

The argument would have continued interminably if the tribunal had not interrupted it at one (arbitrary) point. It had to portray its finding that the US countermeasure was proportionate as if that finding was justified by both qualitative

304Ibid., p. 443-444, § 83.

305Ibid., p. 444, § 83.

306Ibid., p. 448. Dissenting Opinion of M. Reuter.

307Ibid., p. 448, 450, 451-452. Dissenting Opinion of M. Reuter. Lori Damrosch, Deputy Agent of the United States in that case, subsequently confirmed that “[t]he French authorities [had] made clear that Pan Am should not expect to obtain such consent unless the United States Government was willing to negotiate with France for an appropriate quid pro quo” (Damrosch L.F. Op. cit., p. 785).

308Air Service, p. 442, § 78.

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and quantitative proportionality. But in so doing it failed to account for – indeed, could not account for – other interpretations of quality and quantity because of the circular dependence of quality and quantity upon each other. This made the tribunal’s conclusions in the case vulnerable to criticism from the perspectives of international law’s “relevance” and “autonomy”.

The Gabčikovo-Nagymaros case

The judgment of the International Court of Justice in the Case concerning the

Gabčikovo-Nagymaros Project (“Gabčikovo-Nagymaros case”) was also founded on the dual quantity/quality assessment of proportionality. The Court was conscious that both facts and values had to be admitted into the calculus. It laid down its test of proportionality in the following terms:

[A]n important consideration is that the effects of a countermeasure must be commensurate with the injury suffered [quantity. – G.V.], taking account of the rights in question [quality. – G.V.].309

The Court concluded that the unilateral diversion of the Danube by Slovakia in response to Hungary’s breach of the bilateral treaty concerning the construction and operation of the Gabčikovo-Nagymaros System of Locks was disproportionate since it was too severe an impediment on Hungary’s rights to a water resource (qualitative proportionality):

The Court considers that Czechoslovakia, by unilaterally assuming control of a shared resource … depriv[ed] Hungary of its right to an equitable and reasonable share of the natural resources of the Danube…310

Then, to substantiate its argument on disproportionate restriction of rights, the Court used quantitative proportionality. It pointed to the scale of the Danube diversion (Slovakia “appropriate[d], essentially for its use and benefit, between 80 and 90 per cent of the waters of the Danube before returning them to the main bed

309International Court of Justice. Gabčikovo-Nagymaros Project (Hungary/Slovakia). Judgment of 25 September 1997 // I.C.J. Reports 1997. P. 56. § 85.

310Ibid.

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of the river”311) and the environmental harm caused to Hungary (“the continuing effects of the diversion of these waters on the ecology of the riparian area of the

Szigetköz”312).

The reasoning of the Court, while prima facie persuasive, appeared both mechanical and subjective upon closer scrutiny. First of all, the issues of “quality” were ambivalent. Reliance on Hungary’s right to an “equitable and reasonable” share of the natural resources of the Danube overlooked that Slovakia had just the same right. Judge Vladlen Vereschetin argued in his Dissenting Opinion that it was, in fact, Hungary whose inaction – failure to contribute to the joint project –

“deprived Czechoslovakia of the practical possibility of benefiting from the use of its part of the shared water resources for the purposes essential for

Czechoslovakia”.313 To argue (dis)proportionality for either party by reference to

“rights” was simply to restate the problem. Nor was Judge Christopher

Weetamantry’s attempt to re-describe qualitative proportionality as balancing between “developmental” rights of Slovakia and “environmental” rights of Hungary any more successful,314 since both states claimed economic and environmental harm, both argued they acted for the sake of development and environment.315 The qualitative proportionality assessment by the Court looked like mere subjective preference of Hungary’s policy in relation to the Gabčikovo-Nagymaros project over that of Slovakia. As Cannizzaro has remarked, “[s]hould proportionality be tested against the aim pursued by Slovakia, namely, that of wiping off the adverse effect of the breach and producing unilaterally for itself the benefits expected from the

311Ibid., p. 54, § 78.

312Ibid., p. 56, § 85.

313Ibid., p. 225-226. Dissenting Opinion of Judge Vereschetin.

314Ibid., p. 88-119. Separate Opinion of Judge Weeramantry.

315Gabčikovo-Nagymaros, Reply of the Republic of Hungary (Vol. 1). § 1.46 (June 20, 1995). URL: http://www.icjcij.org/docket/files/92/10965.pdf (arguing that “Hungary is not ‘anti-development’ or ‘anti-dam’. Its approach is wholly consistent with international law in the field of sustainable development”); Gabčikovo-Nagymaros // I.C.J. Reports 1997. P. 52-53. § 72 (as the Court mentioned, to Slovakia’s credit, “[i]t emerge[d] from the report … of the tripartite fact-finding mission … that not using the system would have led to considerable financial losses, and that it could have given rise to serious problems for the environment”).

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performance of the treaty, the measures taken would appear perfectly proportionate”.316

This is why a quantitative perspective seemed necessary. But it was ambivalent as well. On the one hand, an attempt to balance the rights of the parties to a reasonable and equitable share of the water resource on the basis of a numerical ratio (as the Court did when it mentioned the 80-90 % diversion of water by Slovakia) seemed mechanical. It failed to assess the social usefulness of a particular ratio. As Judge Abdul Koroma noted in his Separate Opinion:

[T]he Court would appear to be saying by implication that, if Variant C [alternative construction undertaken by Slovakia. – G.V.] had been operated on the basis of a 5050 sharing of the waters of the Danube, it would have been lawful. However, the Court has not established that a 50-50 ratio of use would have been sufficient to operate Variant C optimally.317

On the other hand, the Court’s factual picture appeared subjective because it only mentioned harm to Hungary and did not take into account the claimed (sustained and projected) economic and environmental losses of Slovakia.318 But, more importantly, any description and comparison of the respective actual damage caused to Hungary and to Slovakia would make sense within proportionality discourse only in the light of a particular aim assumed by the argument. For example, a claim by Judge Vereschetin that Slovakia’s previous expenditures in the amount of $ 2.3 billion on the Gabčikovo-Nagymaros project and “the real and imminent threat of having to write off an investment of such magnitude”319 outweighed

“uncertain long-term economic losses”320 of Hungary already assumed that the future risks from the operation of the dam were less important than the past investment – in other words, that the completion of the project was more valuable

316Cannizzaro E. Op. cit., p. 898.

317Gabčikovo-Nagymaros, p. 150. Separate Opinion of Judge Koroma.

318Ibid., p. 225. Dissenting Opinion of Judge Vereschetin.

319Ibid.

320Ibid.

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than its abandonment. This is in line with Judge Vereschetin’s formulation of the aim of countermeasures that stresses in-kind performance of an obligation: “[T]he very idea and purpose of a countermeasure is to induce the wrongdoing State to resume performance of its obligations. The sooner it does so the less damage it will sustain as a result of the countermeasure” (emphasis added. – G.V.).321 Conversely, a claim by Judge Géza Herczegh that the financial losses of Slovakia were not too great to justify the diversion of the Danube was already premised on an assumption that the aim underlying the unilateral action of Slovakia – to complete the project, even if not in its original shape – was unacceptable.322 Thus, the quantitative approach was not self-sufficient and inevitably moved the discussion into the domain of values. Both parties to the dispute would then need to articulate and substantiate their respective visions of the aim of Slovakia’s countermeasure – of what it was necessary and appropriate for Slovakia to do with the GabčikovoNagymaros project. They would have to do it by going beyond the abstract terms of the treaty at hand and “shaping” those terms in a particular substantive manner so as to tailor them to the specifics of the situation at hand. But the accomplishment of this task would require return to the facts (quantities), once again. And so on.

Conclusion: proportionality of countermeasures as an argumentative practice Air Service and Gabčikovo-Nagymaros cases illustrate the basic characteristics of proportionality as a circular argumentative practice, which I have identified

above323 and have now tested in the law of countermeasures.

First, the referents that structure proportionality argument in countermeasures

– “quantity” and “quality” – acquire their meanings only by reliance on their

321Ibid., p. 224.

322Ibid., p. 194. Dissenting Opinion of Judge Herczegh (arguing that “Hungary, by abandoning the construction of the Nagymaros dam … [and] by suspending the works at Dunakiliti … inflicted financial losses on its partner whereas Czechoslovakia … by building on its territory a dam unilaterally diverting the waters of the Danube, violated a provision essential to the accomplishment of the object and purpose of the Treaty”) (emphasis added. – G.V.).

323See above, p. 53-63 of this study.

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opposites. The weighing of quantities is outsourced to qualities. The weighing of qualities is outsourced to quantities. This makes problematic the mainstream assumption that proportionality of a given countermeasure is objectively ascertainable – even if by way of “approximation”324 and “with a certain degree of subjectivity”.325 In other words, the mainstream believes that while proportionality of countermeasures might well be the subject of reasonable disagreement in borderline cases, still a “manifestly disproportionate” countermeasure would be evident to everyone or almost everyone. Yet, the preceding analysis has demonstrated that the indeterminacy of proportionality is absolute, not relative, since neither the quantitative nor the qualitative approaches contain a common, selfsufficient standard which proportionality of countermeasures could strive to be

“approximate” to. Thus, in the Gabčikovo-Nagymaros case the International Court of Justice found Slovakia’s countermeasure disproportionate by taking as its frame of reference (1) a particular ratio of sharing of the Danube waters between Slovakia and Hungary and (2) a particular vision of a “balance” between the rights of two states (based on a more conservative theory of countermeasures which would not allow the use of a countermeasure to restore a victim state’s rights if that would change the original shares in a joint water resource). But the Court could just as well reach an opposite conclusion by using the same criteria of proportionality and by merely changing the frame of reference. For example, Judge Vereschetin did exactly this when he (1) chose to compare the respective losses of Slovakia and Hungary resulting from the non-implementation of the Gabčikovo-Nagymaros project treaty and (2) applied a more coercive theory of countermeasures that would favor in-kind performance of an initial obligation as a primary aim of a countermeasure and would allow significant changes to original shares in a joint water resource in order to fulfill that aim).

324Air Service, p. 443, § 83.

325Gabčikovo-Nagymaros, p. 224. Dissenting Opinion of Judge Vereschetin.

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The idea of a “middle-ground”, as a substantive standard of balancing between the interests of a victim state and a responsible state in the law of countermeasures, turns out to be impossible (“middle” as related to what?). This, in turn, undermines proportionality’s “autonomy”.

Second, proportionality argument in countermeasures unfolds as a process in which parties alternately challenge each other’s quantitative or qualitative comparisons as either “irrelevant” or “non-autonomous”:

(1) Quantity can be used as “objective” evidence against an “arbitrary” value assessment (e.g., Slovakia’s reference to the amount of its own sustained and projected losses in response to Hungary’s argument about the violation of its fundamental rights under the treaty);

(2) Quality can be constructed as a guarantee of “fairness” as opposed to “rigid” quantities (e.g., Judge Koroma’s criticism of the 50-50 ratio of use of the Danube);

(3) Quantity can be portrayed as a “meaningful” expression of context against an “abstract” norm (e.g., arbitrator Reuter’s argument about the respective economic strengths of France as compared to the United States);

(4) Quality can be deployed as a guarantee of “legality” as opposed to “manipulable” facts (e.g., US’ argument about the necessity to protect its rights in response to France’s argument about non-equivalence of the respective losses suffered by the US and French air carriers).

This dynamics of proportionality argument in countermeasures negates the idea of proportionality’s “relevance”, since it masks the real interests of disputants. The crux of the respective matters – the political differences between France and the United States in the area of air transport policies (the Air Service case) or the political dispute between Hungary and Slovakia about the fate of a joint construction project (the Gabčikovo-Nagymaros case) – remains unaddressed, since neither the quantitative nor the qualitative approaches could offer criteria for the court to overrule France’s (Slovakia’s) political vision in favor of the United States’

(Hungary’s) or vice versa. Of course, the courts ultimately had to choose, but –

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contrary to the mainstream perception of proportionality – those choices remained non-transparent.

Third, proportionality argument in countermeasures is circular. It follows a familiar stereotypical structure, pictured on Chart 4. Its design is analogous to the one explained above in Chapter 1.326

State А	State B
(Hungary)	(Slovakia)
(US)	(France)
Facts	Facts
2(R)	4(A)

1(A)
3(R)
Values	Values
State А	State B
(Hungary)	(Slovakia)
(US)	(France)

Chart 4. How proportionality of countermeasures works:

A deconstruction.

Within this structure, closure to argument can only be provided by adopting an

“underjustified” quantitative comparison coupled with an “underjustified” qualitative interpretation. This, in turn, challenges the idea of finality of any legal decision that passes judgment on (dis)proportionality of a particular countermeasure. The mutual dependence of the quantitative and the qualitative approaches makes any such decision both legally correct and legally problematic, and renders the very

326 See above, p. 61-63 of this study.