vaipan_g_v_disser

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d) dash-dotted lines reflect moments when the parties switch from a factual mode of argument to a value mode of argument and back, while the crux of the dispute – the choice between the white points on each spectrum (between competing interpretations of facts and of values) – remains unaddressed in the arguments of the parties and the court.

The principle of proportionality is unable to preserve the “third space” between law and politics as it cannot be at once “relevant” and “autonomous”. Yet, the suggested circular structure of proportionality argument explains why it would also be wrong to think of the use of proportionality as a “purely political” (subjective, arbitrary) process. This point has two aspects: one theoretical, the other practical.

From a theoretical standpoint, proportionality as an argumentative practice absorbs both law and politics. Not only rules and principles but also various ideologies, strategic interests and expert vocabularies become elements in a structured, interminable sequence of arguments expressed through facts or values. In fact, the preceding analysis renders meaningless the very question about the

“essence” of the principle of proportionality, about what it “is” and what it “is not”

(law? politics? both?). The essence of this principle is its lack of any permanent essence, as it keeps oscillating between the two opposing approaches. As a pragmatic concept, proportionality is interesting because, by striving to combine international law’s “relevance” with its autonomy, or law with politics, it creates a potential for legal argument. As the Oil Platforms case shows, these opposites (“law” – “politics”, “relevance” – “autonomy”, “facts” – “values”) also do not have their own meanings but rather serve as “markers” within proportionality argument.

Practically speaking, the principle of proportionality may be used to validate any decision. But that same principle, due to logical interdependence of its elements, always leaves any argument incomplete and any decision “underjustified”. So, it is possible to challenge the decision at any time, to re-open the conversation and to reconsider the established balance.

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A typology of proportionality

Proliferation of the principle of proportionality across diverse areas of international law raises a question: are the characteristics of proportionality, as identified above, common to all these areas? If yes, is there nonetheless anything peculiar in how proportionality works in different areas – in other words, can we make a case for distinct types of proportionality? Barely anyone has ever raised this question, be it a Russian or a foreign legal scholar, let alone studied it in detail.205

Yet, an answer to this question is of great interest for understanding international law in the era of pragmatism, specifically whether it is going to retain its normative unity and whether we are witnessing a new generation of systemic principles emerging in place of older, formalist ones.206

Those who study proportionality tend to emphasize that all versions of this principle share some conceptual commonality.207 In general, this finding seems justified and is confirmed by the analysis above. The basic ideas behind proportionality are its function of striking a balance between interests of parties to a dispute while taking into account the social objectives of international law and individual circumstances of specific cases.208 These ideas amount to a “common denominator” that distinguish this principle as an embodiment of contemporary pragmatic mode of legal thought. Another common feature of proportionality is its ambivalence – the inbuilt opposition between proportionality as a proportion between benefit and harm and proportionality as a proportion between means and

205For rare exceptions, see Cannizzaro E. Il Principio della Proporzionalità nell'ordinamento Internazionale (Op. cit.);

Kennedy, Duncan. A Transnational Genealogy of Proportionality in Private Law (Op. cit.), p. 217-220.

206It is a frequently made point in international law scholarship that international law is undergoing fragmentation, whereby it loses its unity and disintegrates into specialized legal regimes. See I.L.C. Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law. U.N. Doc. A/CN.4/L.682 (2006); Koskenniemi M., Leino P. Fragmentation of International Law? Postmodern Anxieties // Leiden Journal of International Law. 2002. P. 553-579.

207See, e.g.: Franck T.M. On Proportionality of Countermeasures in International Law (Op. cit.), p. 715-719; Kennedy, Duncan. A Transnational Genealogy of Proportionality in Private Law (Op. cit.), p. 217-219.

208See above, p. 30-39 of this study.

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ends.209 At the same time, international lawyers cannot help noticing, at least as an intuitive feeling,210 significant differences between versions of proportionality in different areas of international law – such as in the law on the use of force, on the one hand, and in human rights law, on the other.

I will now sketch a typology of proportionality and will highlight some of its criteria. My hypothesis is that proportionality in international law comes in three types: “horizontal”, “vertical” and “mixed”.

“Horizontal” proportionality deals with (а) a conflict of interests between international legal subjects of the same kind (states); where (b) interests of disputants are of a priori equal standing; and (c) there is a single objective of international legal regulation, and it is just unclear how that objective should be interpreted in the light of parties’ interests (as in the above case on self-defence, everyone agrees that international law should aim at “maintenance of security”, even though we still need to reconcile one state’s “security” with another state’s “security”). “Horizontal” proportionality is present in such areas of international law as law on the use of force (proportionality of self-defence), law of international responsibility (proportionality of countermeasures), World Trade Organization (“WTO”) law (in part relating to proportionality of countermeasures), maritime law (proportionality of maritime delimitation).

“Vertical” proportionality deals with (а) a conflict of interests between different kinds of international legal subjects (e.g., state vs. individual; international organization vs. state); where (b) the interest of one party is accorded special status (weight), so that the interest of another may be given priority only in special cases; and (c) there is a clash between different objectives of international legal regulation which are seen as antagonistic (e.g., “liberty” vs. “security” in human rights law).

“Vertical” proportionality is present in such areas of international law as human

209See above, p. 49-53 of this study.

210See Franck T.M. On Proportionality of Countermeasures in International Law (Op. cit.), p. 718 (noticing a difference between the design of proportionality as applied to interstate disputes, on the one hand, and disputes between a state and an individual, on the other).

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rights law, investment law, WTO law (in part relating to internal measures affecting a state’s international obligations under WTO law), European Union law. In the former two areas, the issue is whether it is proportionate to limit human rights / rights of a foreign investor. In the latter two areas, the issue is whether a state may be exempt from its obligations undertaken as part of membership in an international organization.

Finally, there is a special case of international humanitarian law, where proportionality has features of a “mixed” type: it is unclear who the subjects are (state vs. state or state vs. individual); as in the vertical type, there is a clash between two values (objectives) – “military necessity” and “humanity”; yet, unlike in the vertical type, these objectives and the corresponding interests are regarded as equal. In short, the principle of proportionality in international humanitarian law is perhaps the most confusing one.

The above classification shows that a typology of proportionality using the vertical/horizontal dichotomy largely corresponds to a well-known typology of national law into public and private.211 Future studies of proportionality’s typology will have to, among other things, confirm or rebut this analogy, and also address the following questions:

(1)Is the distinction between “vertical”, “horizontal” and “mixed” proportionality consistent? Do “private” elements infiltrate the “public” model and vice versa?

(2)Does a difference in proportionality types lead to any tendencies in actual decision-making (e.g., does special status of one of the interests in the

“vertical” model of proportionality mean greater legal protection of this interest)?

211 Cf. a distinction between “public law” and “private law” proportionality: Kennedy, Duncan. A Transnational Genealogy of Proportionality in Private Law (Op. cit.), p. 217-219.

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***

In this chapter, I have looked at the assumptions behind the principle of proportionality and its origins in international law. I have shown that its content is incoherent and the mainstream understanding of proportionality as the “third space” between law and politics is illusory. I have offered a new understanding of proportionality as a circular legal argumentative practice.

I will further consider the principle of proportionality in three areas of international law which correspond to “horizontal”, “vertical” and “mixed” types of proportionality: law of international responsibility; humanitarian law; human rights law. I will use those areas as exemplary, testing both the “common denominator” of proportionality and the specifics of each type.

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Chapter 2. The principle of proportionality in the law of international

responsibility

In this chapter, I consider the principle of proportionality in the law of international responsibility where it is applied to countermeasures. I use the principle of proportionality in the law of international responsibility as an example of a

“horizontal” type of proportionality.212 Taking as a starting point the key characteristics of proportionality as identified in Chapter 1, I look at how they play out in doctrinal disputes about proportionality of countermeasures and in the practice of international courts applying this principle to countermeasures.

§ 1. Proportionality of countermeasures: “quantity” vs. “quality”

The principle of proportionality is commonly considered an indispensable precondition for the lawfulness of countermeasures213 taken by a state in response to an (allegedly) wrongful act against it.214 It is immediately noticeable that the way lawyers assert the importance of proportionality for the law of countermeasures reflects proportionality’s dual promise of ensuring both “relevance” and “autonomy” of international law.

On the one hand, proportionality is perceived as a socially meaningful instrument of balancing between the interests of an injured state and the interests of a responsible state.215 It is supposed to ensure not only vindication of the rights of the former but also respect for the rights of the latter: while permitting a “social

212See above, p. 64-66 of this study.

213Other terms that were or still are used to refer to countermeasures include “self-help”, “reprisals”, “sanctions”. For a review of how terminology has evolved over the years and how these terms relate to each other, see: Lukashuk I.I. Pravo mezhdunarodnoy otvetstvennosti. M., 2004. S. 309-312, 325; Keshner M.V. Ekonomicheskiye sanktsii v sovremennom mezhdunarodnom prave. M., 2015. S. 19-39.

214I.L.C. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries // Report of the International Law Commission on the Work of its Fifty-Third Session (23 April – 1 June and 2 July – 10 August 2001). U.N. Doc. A/56/10. Official Records of the General Assembly, Fifty-Sixth Session, Supplement No. 10. P. 341 (Art. 51); International Court of Justice. Gabčikovo-Nagymaros Project (Hungary/Slovakia). Judgment of 25 September 1997 // I.C.J. Reports 1997. P. 56. § 85; Air Service Agreement of 27 March 1946 between the United States of America and France // 18 R.I.A.A. 417, 443. § 83 (1978).

215See Lukashuk I.I. Op. cit., s. 327.

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sanction against the wrongdoer”, proportionality also “protect[s] the subjective interest of the wrongdoer against over-reaction”.216 As Vladimir Vasilenko points out, the principle of proportionality is “founded on the ideas of reciprocity, equity and expediency”.217 The very fact of its use already suggests a focus on the social consequences of countermeasures and a search for reasonable and mutually acceptable solutions. According to Roger O’Keefe, proportionality aims at “net equity”, so “that the harm which results from the response to a wrong does not outweigh the harm occasioned by the wrong in the first place”.218 Similarly, during the work of the International Law Commission (“ILC”) on the topic of state responsibility, Special Rapporteur Gaetano Arangio-Ruiz remarked that proportionality constitutes “a relationship between the two evils represented by the breach and the reaction thereto”.219 The socially focused concept of proportionality sets contemporary countermeasures apart from their historic predecessor – reprisals under classical international law. The latter entitled a victim state to enforce its rights unilaterally without taking into account the interests of a wrongdoer state and of the international community.220

On the other hand, proportionality is seen as a restraint on a reacting state’s exercise of discretion in the choice of a countermeasure. From this perspective, proportionality is a binding rule that determines – even if “roughly”221 – the limits of permissible interference with the liberty of a responsible state, “draws a clear line

216Cannizzaro E. The Role of Proportionality in the Law of International Countermeasures // European Journal of International Law. 2001. P. 889-916, 890.

217Vasilenko V.A. Mezhdunarodno-pravovyye sanktsii. Kiev, 1982. S. 166.

218O’Keefe R. Proportionality // The Law of International Responsibility / Ed. by J. Crawford, A. Pellet, S. Olleson. N.Y., 2010. P. 1157, 1160.

219I.L.C. Fourth Report on State Responsibility, by Mr. Gaetano Arangio-Ruiz, Special Rapporteur. U.N. Doc. A/CN.4/444 and Add. 1-3 (1992). § 56.

220See Ulyanitskiy V. Mezhdunarodnoye pravo. Tomsk, 1911. S. 373-374; Tunkin G.I. Teoriya mezhdunarodnogo prava. M., 1970. S. 439-441; Suvorov V.K. Retorsii i repressalii po sovremennomu mezhdunarodnomu pravu. Dis. … kand. yurid. nauk. M., 1982. S. 58-60.

221Cannizzaro E. Op. cit., p. 890.

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between lawful and unlawful actions of states”.222 It thereby “secures a certain predictability of the response”223 and “plays a prominent role in limiting the power of taking countermeasures”.224 As scholars commonly argue, through the principle of proportionality international law is able to prevent abuse by states resorting to countermeasures,225 to maintain international rule of law226 and to contain interstate conflicts by precluding “an indefinitely spiraling process of reprisal, counterreprisal and countercounterreprisal”.227

The combination of these two perspectives has made the principle of proportionality a “center of gravity” in the contemporary law of countermeasures. If pragmatic international law is expected to ensure a legally guided achievement of a socially optimal balance between the interests of a responsible state and an injured state, then proportionality is elevated into an ultimate test of legality of a countermeasure.228 A lawful countermeasure is a proportionate countermeasure. If so, figuring out a clear standard of proportionality becomes crucial for the distinction between permissible and impermissible countermeasures. As Elisabeth Zoller observes, “a definition of proportionality is a prerequisite to draw a precise framework for countermeasures”.229

Yet, on the issue of proportionality content, despite all its importance, international law scholarship has made little progress. The most consistent statement in this regard has been a statement of failure: “There is surprisingly little agreement

222Sharmazanashvili G.V. Pravo mira. Tbilisi, 1961. S. 137.

223Cannizzaro E. Op. cit., p. 890.

224Ibid., p. 889.

225See Lukashuk I.I. Mezhdunarodnoye pravo: Osobennaya chast’. M., 2008. S. 406.

226See Vasilenko V.A. Op. cit., s. 167.

227McDougal M., Feliciano F. Op. cit., p. 680-681. In the Air Service case, the arbitral tribunal remarked that “recourse to counter-measures involves the great risk of giving rise, in turn, to a further reaction, thereby causing an escalation which will lead to a worsening of the conflict”, and it was therefore crucial that proportionality endow countermeasures “with a spirit of great moderation” (Air Service Agreement of 27 March 1946 between the United States of America and France // 18 R.I.A.A. 417, 445. § 91 (1978)). See more below, p. 82-86 of this study.

228See Lukashuk I.I. Op. cit., s. 406 (noting that “[p]roportionality is of primary importance when it comes to determining the lawfulness of countermeasures”).

229Zoller E. Peacetime Unilateral Remedies: An Analysis of Countermeasures. N.Y., 1984. P. 127.

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on the role and content of proportionality in the system of state responsibility”.230

More specifically, scholars are profoundly divided over what criteria to use when measuring proportionality of a given countermeasure. As Arangio-Ruiz has summarized, while everyone seems to agree that the principle of proportionality is applicable, there is still confusion about “whether proportionality is required with reference to the wrongful act per se, to the effects thereof, to the specific – mediate or intermediate – aim of the measure, or to a combination of two or more of those elements”.231 Yet a closer look shows that all existing views belong either to the facts approach or to the values approach.232 In what follows, I will demonstrate that the

“facts vs. values” dichotomy in the law of international responsibility manifests itself in the opposition between the quantitative and the qualitative approaches, and that the inability of proportionality discourse to come up with a both “relevant” and

“autonomous” standard of a lawful countermeasure is “programmed” in the relationship between these two approaches, their logical dependence upon each other.

The quantitative approach

The quantitative approach defines proportionality by reference to the factual parameters of an original wrongful act that has prompted resort to countermeasures. Reliance on facts is supposed to guarantee that the response by an injured state is commensurate with the “real” social harm caused by a wrongful act. But facts are also needed to restrain a reacting state, to serve as “hard” evidence that is used as a yardstick of permissible reaction. In other words, quantitative proportionality means

230 Cannizzaro E. Op. cit., p. 890. See also: International Court of Justice. Gabčikovo-Nagymaros Project (Hungary/Slovakia). Judgment of 25 September 1997 // I.C.J. Reports 1997. P. 223. Dissenting Opinion of Judge Vereschetin (noting that “the test of proportionality … is very uncertain”); 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). § 65 (observing that

“[t]here is no uniformity … either in the practice or the scholarship as to the exact concept of proportionality”);

Vasilenko V.A. Op. cit., s. 164 (noting that “in contemporary international law, there is a lack of precise rules which would determine content of the principle of proportionality”).

231I.L.C. Third Report on State Responsibility, by Mr. Gaetano Arangio-Ruiz (Op. cit.). § 67.

232See above, p. 49-53 of this study.

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equivalence between a wrongful act and a countermeasure, so as both to keep countermeasures in touch with real social needs (“relevance”) and to prevent them from lapsing into unchecked coercion (“autonomy”).

A paradigmatic example of the quantitative approach is a 1928 arbitral award in the Naulilaa case. In response to a frontier incident between German and Portuguese military forces in South West Africa during the First World War, in which three German officers were killed, Germany attacked and destroyed a number of forts in the Portuguese territory. In what was one of the first judicial statements on the principle of proportionality in the law of countermeasures, an arbitral tribunal defined the standard of proportionality as follows:

[O]ne must certainly consider as excessive, and consequently illegal, reprisals out of all proportion to the act which has motivated them. [In the present case,] there was an evident disproportion between the incident of Naulilaa and the six acts of reprisals which have followed it (emphasis added. – G.V.).233

The writings of Hans Kelsen who argued that “reprisals must be in proportion to the delict against which they are taken”,234 and Roberto Ago who defined proportionate reprisals as those “commensurate with the injury suffered”,235 also express the quantitative approach. In Russian scholarship, the qualitative standard of proportionality has been used by G.V. Sharmazanashvili,236 Yu.V. Petrovskiy,237

V.A. Vadapalas,238 S.V. Chernichenko.239

However, the quantitative approach cannot be consistently followed since it comes under attack from both sides. From one perspective, it is criticized for being

233Responsabilité de l’Allemagne à raison des dommages causés dans les colonies portugaises du sud de l’Afrique (sentence sur le principe de la responsabilité) (Portugal c. Allemagne) // 2 R.I.A.A. 1011, 1028 (1928).

234Kelsen H. Principles of International Law. N.Y., 1952. P. 24.

235I.L.C. Eighth Report on State Responsibility by Mr. Roberto Ago, Special Rapporteur – the Internationally Wrongful Act of the State, Source of International Responsibility. U.N. Doc. A/CN.4/318 and Add. 1-4 (1979). § 82.

236Sharmazanashvili G.V. Op. cit., s. 131.

237Petrovskiy Yu.V. Mezhdunarodno-pravovaya otvetstvennost’ gosudarstv. Dis. … kand. yurid. nauk. L., 1968. S.

238Kurs mezhdunarodnogo prava v 7 t. T.3. Osnovnyye instituty mezhdunarodnogo prava / Avakov M.M., Boguslavskiy M.M., Vadapalas V.A. i dr. M., 1990. S. 228.

239Chernichenko S.V. Kontury mezhdunarodnogo prava. Obshchiye voprosy. M., 2014. S. 508.