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specifically for a case under consideration. Where the “right balance” itself is disputed, the values approach has no means to oppose any subjective appreciation of values and their balance in any given case. This results in the loss of “autonomy” for proportionality. The values approach alone also ends up being unhelpful and helpless.

The proportionality formula in “The Merchant of Venice” exemplifies this duality of proportionality. Facts need an external evaluative standard to be measured against (what wrong should we consider “little”? what right should we consider “great”?). Values need context to get reconciled (how far can this wrong claim to be justified by the pursuit of this right?). Both the facts approach and the values approach seek to bring together international law’s “relevance” and “autonomy”. But as it turns out, the initial contradiction between “relevance” and “autonomy” reemerges within each of these approaches. The two approaches lose their selfsufficiency and must rely on each other. What follows in actual cases is a proportionality discourse that weighs neither facts against facts nor values against values – instead, it constantly outsources the weighing of facts to values and vice versa. How do these dynamics affect the “third space”? And how does it help us understand the principle of proportionality?

Proportionality as an argumentative practice: the Oil Platforms case

The internal contradictions of the above approaches to proportionality open up an alternative perspective on this principle. Proportionality turns out to be a dynamic concept, not a static one. It is not reducible to a rule, or to discretion, or to any other

“optimal” combination of the two. Instead, these qualities of proportionality fuel a logically interminable process of legal argument about proportionality in which they serve as referents. What follows is my attempt to provide an overall description of the structure and basic characteristics of this argumentative practice as it unfolds in actual international law cases, and thereby set the ground for a new understanding of the principle of proportionality.

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Let me take the Oil Platforms186 case between Iran and the United States before the International Court of Justice as an example. This case concerns the limits of lawful self-defence. Article 51 of the United Nations Charter recognizes an inherent right of individual or collective self-defence if an armed attack occurs against a state.187 Yet, its lawful exercise, as follows from the Court’s case law, is subject to a number of binding criteria, including the principle of proportionality.188

In the Oil Platforms case, the Court dealt with the issue of whether the destruction of Iranian offshore oil production installations in the Persian Gulf by the United States was a proportionate exercise of its right of self-defense. In each of the two instances examined by the Court, military action against the platforms took place days after attacks on the US-flagged ships. In the proceedings before the Court, Iran claimed that proportionality should be interpreted as a relation between these (allegedly Iranian) attacks on the US ships and the US attacks on the platforms:

Proportionality of a counter-action means that it is not excessive, it must, in other words be commensurate to the act triggering it, i.e., to the first use of force.189

Because the platforms suffered more damage than the ships, the US response was disproportionate, according to Iran.190 This is the facts approach, pure and simple. As such, however, it seemed mechanical: a strict tit-for-tat military response may accomplish more as well as less than needed to defend oneself. Instead, the United States argued, proportionality must be measured in terms of the social function of self-defense:

186International Court of Justice. Oil Platforms (Iran v. United States of America). Judgment of 6 November 2003 // I.C.J. Reports 2003. P. 6.

187Charter of the United Nations // Sbornik deystvuyushchikh dogovorov, soglasheniy i konventsiy, zaklyuchonnykh SSSR s inostrannymi gosudarstvami. Vyp. XII. M., 1956. S. 14-47.

188International Court of Justice. Militarv and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits. Judgment of 27 June 1986 // I.C.J. Reports 1986. P. 14. §§ 194, 237; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). Judgment of 19 December 2005 // I.C.J. Reports 2005. P. 168. § 147.

189Oil Platforms. Verbatim Record. CR 2003/7. P. 48. § 61. URL: http://www.icj-cij.org/docket/files/90/5137.pdf.

190Ibid., §§ 61, 64.

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What matters in this respect is the result to be achieved by the “defensive” action, and not the forms, substance and strength of the action itself. ... Its lawfulness cannot be measured except by its capacity for achieving the desired result.191

This is the values approach at its basic. But how do we define the “result”?

What may a state acting in self-defense seek to achieve?192 On the one hand, references to aims such as maintenance of “peace” or protection of “security” would not be persuasive: being formal, these concepts were of little assistance and were unable to justify any particular course of counter-action where the security of one State (the United States) was put against the security of another (Iran). On the other hand, trying, as the United States did, to give substance to these abstract concepts and translate them into some kind of more or less determinate aim – such as “do what [was] necessary to deter, prevent or reduce Iranian attacks”193 – would also have been insufficient. Such an approach would have assumed that the substance of a lawful aim of self-defence in that case was self-evident, that line-drawing between preventive (and thus necessary) and punitive (and thus excessive) military action was a matter of common sense and could not cause any reasonable disagreement. It would have meant that there was, in fact, an obvious “right” balance between the interests of the parties. That assumption, however, was excluded by the very existence of Iran’s objection to the proposed US interpretation of values.

In order to support its understanding of “security”, the United States must have abandoned the values approach and must have turned to the facts of the case. It argued that Iran’s factual equation formula was arbitrary: the destruction of the

191Oil Platforms. Verbatim Record. CR 2003/12. P. 51-52. § 18.58. URL: http://www.icjcij.org/docket/files/90/5157.pdf (citing I.L.C. Addendum - Eighth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur (Part 1). U.N. Doc. A/CN.4/318/Add.5-7 (1980)). § 121.

192David Kretzmer discusses at length the existing cacophony in international law scholarship and practice on the issue of legitimate ends of self-defence. See Kretzmer D. The Inherent Right to Self-Defence and Proportionality in Jus Ad Bellum // European Journal of International Law. 2013. P. 235-282. Kretzmer concludes that proportionality of using force in self-defence depends on what we include in the scope of its legitimate ends. The legitimate ends of self-defence may differ depending on the circumstances of a particular situation – “the nature and scale of the armed attack, the identity of those who carried it out, and the preceding relationship between the aggressors and the victim state” (Ibid., p. 240).

193Oil Platforms. Verbatim Record. CR 2003/12. P. 51-52. § 18.58. URL: http://www.icjcij.org/docket/files/90/5157.pdf.

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platforms was a reaction not against two isolated attacks on US ships but against a pattern of previous Iranian missile and mine attacks against commercial and military vessels in the Persian Gulf, in which Iranian offshore oil installations served as coordinating bases.194 The United States therefore re-described the factual standard of proportionality as the relation between the preventive “limited action”195 against two such platforms and “the loss of United States life and property that would have resulted if Iran had continued those attacks”.196

In order to defend its position, Iran needed to challenge the legal significance of the US (re-)description of the facts. Faced with two competing factual perspectives and the lack of any legal criteria within the facts approach to justify a choice between them, the only way for Iran to support the superiority of its own (initial) perspective was to leave the facts approach altogether and turn to values. As Iran argued, the United States could not include prior Iranian attacks into the calculus because the protection of “security” only allowed measures that were limited to

“halting and repelling the attack,”197 and several attacks may not have been treated cumulatively as a general armed attack.198 Since no Iranian attacks were taking place at the time of US action, the latter was carried out not for the sake of security but for the sake of retribution, “to teach Iran a lesson”.199

However, like the United States, Iran could not consistently rely on the values approach either. On the one hand, an interpretation that limited the right of selfdefence to the narrow time frame of each individual attack looked mechanical: to

194Ibid., § 18.59. See also: Oil Platforms. Counter-Memorial and Counter-Claim submitted by the United States of America. §§ 4.10, 4.33, 4.35. URL: http://www.icj-cij.org/docket/files/90/8632.pdf.

195Oil Platforms. Verbatim Record. CR 2003/12. P. 52. § 18.59. URL: http://www.icjcij.org/docket/files/90/5157.pdf.

196Oil Platforms. Verbatim Record. CR 2003/18. P. 28. § 28.17. URL: http://www.icjcij.org/docket/files/90/5181.pdf.

197Oil Platforms. Memorial submitted by the Islamic Republic of Iran. § 4.21. http://www.icjcij.org/docket/files/90/8622.pdf (citing I.L.C. Addendum - Eighth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur (Part 1). U.N. Doc. A/CN.4/318/Add.5-7 (1980)). § 121.

198Oil Platforms. Verbatim Record. CR 2003/7. P. 38-39. § 27. URL: http://www.icj-cij.org/docket/files/90/5137.pdf.

199Ibid., p. 17, § 28.

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insist that the principle of proportionality did not allow the United States to protect its security in the face of what amounted to, as the United States claimed, “the demonstrated intent of Iran to continue [its] attacks”200 would make proportionality oblivious to military and political realities. On the other hand, the values approach could not provide any reasons as to why Iran’s interpretation of the boundary between “security” and “retribution” in the case at hand was any better than that of the United States. So, in order to demonstrate that US action went beyond the purpose of the protection of its “security”, Iran needed to turn back to the point from which it started its argument – the facts. It would have needed to redesign the factual perspective to support its interpretation of the values – to demonstrate that the US action was not kept within the limits of necessity and was thus disproportionate to the perceived threat. So, for example, Iran emphasized that the US military response was much more massive than just the attack on the oil platforms – it was, in fact, a full-scale military operation named “Operation Praying Mantis”.201

These lines of argument (“…facts-values-facts-values…”) could be continued further. The parties would continue to build their factual matrices and would challenge each other’s matrices as disproportionate from the standpoint of particular purposes of self-defence – purposes which would, however, immediately require factual support to avoid the same challenge of disproportionality. The opposition between “relevance” and “autonomy”, built into the facts approach as well as into the values approach, enables and fuels the dynamics of proportionality argument in which facts and values are alternately used to portray one’s opponent’s description of facts or values as either “irrelevant” or “non-autonomous”. The overall structure of the discourse looks like this:

200 Oil Platforms. Verbatim Record. CR 2003/12. P. 52. § 18.58. URL: http://www.icjcij.org/docket/files/90/5157.pdf. The United States also pointed out that an interpretation suggested by Iran would render the right of self-defence “illusory” in situations where, as in the case at hand, “the armed attacks [with mines and missiles] lasted only a few seconds”, and therefore “the status quo ante could not be restored simply by driving an attacking force back across the border from whence they came” (Oil Platforms. Counter-Memorial and CounterClaim submitted by the United States of America. § 4.29. URL: http://www.icj-cij.org/docket/files/90/8632.pdf).

201 Ibid., p. 10-11, § 4.

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(1) Values can be constructed as a guarantee of “fairness” as opposed to “rigid” factual comparisons (e.g., US’ criticism of Iran’s tit-for-tat approach to proportionality);

(2)Facts can be used as “objective” evidence against “arbitrary” value assessment (e.g., Iran’s emphasis on the actual scale of US response);

(3)Values can be deployed as a guarantee of “legality” as opposed to “manipulable” facts (e.g., US’ appeal to the necessity of protecting its security in

response to Iran’s restrictive delineation of original attacks);

(4) Facts can be portrayed as a “meaningful” expression of context against “abstract” values (e.g., US’ criticism of Iran’s formalistic temporal interpretation of self-defence in the face of Iran’s hostile intentions).

This going in circles can be interrupted only by leaving the “third space” between law and politics, since any factual or value perspective turns out to be

“underjustified” – it can be challenged as either “irrelevant” or “non-autonomous”.

The same holds true for the Court’s conclusions in the Oil Platforms case. For example, with regard to the second US attack the Court concluded:

As a response to the mining, by an unidentified agency, of a single United States warship, which was severely damaged but not sunk, and without loss of life, neither

“Operation Praying Mantis” as a whole, nor even that part of it that destroyed the

Salman and Nasr platforms, can be regarded, in the circumstances of this case, as a proportionate use of force in self-defence.202

This conclusion is vulnerable to criticism as an arbitrary combination of facts coupled with an arbitrary choice of a particular theory of self-defence. Such a solution falls beyond the “third space” between law and politics. However, it is important to note that such an outcome is not a consequence of any defect in a particular adjudication (such as incompetence or bad faith of judges). Rather, it follows logically from the very framework of the principle of proportionality. Reflecting the basic ideas of international legal pragmatism that date back to

202 Oil Platforms. Judgment of 6 November 2003 // I.C.J. Reports 2003. P. 161. § 77.

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Lauterpacht and Morgenthau,203 the principle of proportionality claims to exist in order to (a) further the social function of international law (b) through balancing of conflicting interests (c) given the individual circumstances of specific disputes. However, as follows from the analysis above, all three notions are themselves ambivalent. In each case, parties strongly disagree about (a) how precisely to define those objectives that international law should promote in their dispute as well as (c) how to delimit the relevant context of the dispute. There is no juridical means to prioritize between the opposing interpretations of those objectives and contexts, since the facts and the values approaches merely refer to each other. As a result, (b) balancing exercise lacks established referents – it is unclear which facts are to be measured and using which values.

Let me now outline the basic characteristics of proportionality as an argumentative practice.

First, it is a process where the referents (facts and values), because of their logical interdependence, have no meanings of their own – they acquire meanings only by reliance on their opposites. The weighing of facts is outsourced to values. The weighing between competing interpretations of values is outsourced to facts. This precludes the very existence of an imaginary “middle-ground”, a midpoint against which proportionality could be measured, since neither the facts approach nor the values approach can offer a self-sufficient frame of reference. As a result, proportionality by its very nature allows a decision-maker to find any reviewed action to be proportionate or not. Thus, in the Oil Platforms case, the International Court of Justice essentially made a choice in favor of Iran, but it could just as well reach an opposite conclusion and find US military action proportionate, all the while remaining within the vocabulary of proportionality and merely changing a frame of reference (for example, (1) by portraying the factual situation as a comparison between isolated military actions by the United States and a pattern of systematic

203 See above, p. 30-39 of this study.

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naval attacks by Iran, and (2) by applying a more liberal theory of self-defence to this factual matrix, a theory that stresses prevention and favors a cumulative assessment of several isolated assaults as a single attack). There are no substantive criteria within the principle of proportionality that could restrict a range of choices for a court, making proportionality’s “autonomy” illusory.

Second, the emptiness of facts and values, coupled with their logical opposition, enables their use in proportionality argument in order to portray one’s opponent’s description of factual or value picture as arbitrary (either formal or subjective). Each standpoint here is merely a projection towards its opposite: terms like “formal” or “subjective” do not inherently belong to either the facts approach or the values approach, but rather are deployed alternately within both approaches. However, through this repetitive projection proportionality loses its “relevance”: instead of comparing and evaluating actual interests of parties to a dispute, it becomes a repetition of formulaic clichés and masks the real subject-matter of the dispute. For example, in the Oil Platforms case a dispute about self-defence was a surface manifestation of deeper political differences between the United States and Iran concerning the extent of permissible US interference with the Iran-Iraq war of the 1980s. The International Court of Justice never tackled those issues directly because the principle of proportionality offered no legal criteria which would allowed it to overrule the US’ political views on those issues in favor of Iran’s or vice versa. Since they could make this choice openly within the vocabulary of proportionality, the Court and the parties converted the issues at the heart of the dispute into an endless sequence of conceptual oppositions.

Courts interrupt this process using a so-called “strategy of evasion”:204 they formulate a conclusion on proportionality in such a way as to avoid dealing with the crux of the dispute. Instead of dealing with factual and value disagreements on their merits, courts rely on a postulated combination of facts and values that makes the

204 Koskenniemi M. From Apology to Utopia (Op. cit.), p. 342-345.

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outcome of balancing seem obvious (cf. the Court’s approach in the Oil Platforms case). Such an approach predetermines the outcome of proportionality assessment already during the initial setting of the scales. It does not explain why that particular formula of proportionality has been chosen over its alternatives, leaving the real dispute between the parties unresolved.

Third, the structure of proportionality argument is circular. It is a “deep structure” in relation to the mainstream understanding of how proportionality works.

The mainstream view, as applied to law on the use of force, is shown on Chart 2:

Chart 2. How proportionality of self-defence works:

The mainstream view.

The mainstream imagines a single spectrum where we balance conflicting interests of two states (in this case – state B, acting in self-defence, and state A, affected by B’s actions) and thereby specify the content of the corresponding principles of international law (in this case – the principle of non-use of force and the principle of territorial integrity) depending on the facts of the case. The boundary between proportionate and disproportionate conduct is relatively indeterminate, yet the very idea of a single spectrum with known endpoints necessarily means that such a boundary is determinable, so that we would be able to see at least manifestly proportionate (far right side of the spectrum) and manifestly disproportionate actions (far left side of the spectrum) in self-defence.

The above analysis alters the picture, though (Chart 3, next page):

Chart 3. How proportionality of self-defence works:

A deconstruction.

As it follows from this chart:

а) rather than being a single spectrum, proportionality splits into two spectra (a

“facts” spectrum and a “values” spectrum);

b) white points on each spectrum represent positions of the parties about the

“right” balance of either facts or values; the spectra do not have endpoints, since the parties construe them differently, and the vocabulary of proportionality offers nothing to justify a choice between these conflicting interpretations;

c) solid lines show arguments about “irrelevance” (R) and “non-autonomy” (А) of an opponent’s factual or value vision; numbers correspond to examples of such arguments used above in the analysis of the Oil Platforms case; notably,

“irrelevance” and “non-autonomy” arguments are not tied to either facts or values, nor even to one of the two states (applicant or respondent), but are rather used alternately by both parties to challenge factual or value characteristics of proportionality suggested by their adversaries;