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formal and thus “irrelevant”. Insistence on strict equivalence is completely mechanical; it does not leave room for evaluation of social benefit and social harm in each given case, and does not allow a decision-maker to tailor a countermeasure to each wrongful act and to each lawbreaker.240 From the social ends perspective, a tit-for-tat response might be insufficient to restore the interests of an injured state241 and, in fact, might even cause more harm to that very state (for example, to an economically weaker one)242 – but it might as well be excessive243 and might tend to escalate rather than help resolve a dispute.244 Eduard Skakunov has quite succinctly expressed these shortcomings of quantitative proportionality:

Indeed, the essence of coercion is not in the chivalrous crossing of swords chosen for a duel, where the winner is a stronger side but quite often not the righteous side, but rather in the restoration of legal order that preceded wrongdoing.245

A purely quantitative approach is anti-social: as Enzo Cannizzaro observes, under this approach “the respondent state would be bound to follow the trespasser in the same course of unlawfulness [even if there] can be good reasons for not doing this” (for example, to pollute in response to pollution).246 Being inflexible and unable to take into account the equities of individual cases, quantitative proportionality has

240See Zoller E. Op. cit., p. 137.

241See I.L.C. State Responsibility, Comments and Observations Received by Governments. U.N. Doc. A/CN.4/488 and Add. 1–3. P. 160 (observing that “in some circumstances, a degree of response greater than the precipitating wrong may be appropriate to bring the wrongdoing State into compliance with its obligations”); Cannizzaro E. Op. cit., p. 908 (arguing that “[t]he right of the victimized state to secure respect for its legal rights and interests is seriously thwarted if the response to the wrongful conduct is limited on the basis of its needing to be equivalent to the wrong”).

242See Elagab O.Y. The Place of Non-Forcible Counter-Measures in Contemporary International Law // The Reality of International Law: Essays in Honour of Ian Brownlie / Ed. by G.S. Goodwin-Gill, S. Talmon. Oxford; N.Y., 1999. P. 125, 133; Lukashuk I.I. Pravo mezhdunarodnoy otvetstvennosti. M., 2004. S. 341.

243See Zoller E. Op. cit., p. 136.

244See I.L.C. U.N. Doc. A/CN.4/488 and Add. 1–3 (Op. cit.). P. 160.

245Skakunov E.I. Samopomoshch’ kak forma prinuditel’nogo obespecheniya sub’yektivnykh prav gosudarstva. Dis. … kand. yurid. nauk. L., 1970. S. 174. For a critique of “mechanical equivalence”, see also Vasilenko V.A. Op. cit., s. 166.

246Cannizzaro E. Op. cit., p. 905.

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been stigmatized as an extension of the principle summum jus summa injuria247 and as “an adventitious survival of lex talionis”.248

But there is an opposite line of criticism against the quantitative approach, too. It stigmatizes the quantitative approach as substantively open-ended and thus “nonautonomous”. Quantitative proportionality itself does not explain how to measure equivalence. This is a common point about “incommensurable” facts: for example, in cases involving non-reciprocal countermeasures, proportionality, according to some scholars, “is like comparing apples with oranges”.249 As has been pointed out by ILC member Awn Al-Khasawneh during the discussion on the topic of countermeasures, in such cases “proportionality [i]s a misnomer because it [gives] the impression that there [i]s a yardstick against which the reasonableness of action and reaction could be accurately measured, whereas, in fact, there [i]s none”.250 But the problem is deeper. Even if there were a common metric, we still would not know which facts to include in the calculus: as Special Rapporteur William Riphagen has remarked on the issue of quantity in proportionality, “questions arise as to the elements to be taken into account”.251 Without an external criterion which would distinguish between relevant and irrelevant facts and evaluate them, quantitative proportionality remains too subjective as it liberates a decision-maker to use his/her own appreciation of the factual equation in each case.

247See Zoller E. Op. cit., p. 137.

248McDougal M., Feliciano F. Op. cit., p. 682.

249Zemanek K. Op. cit., p. 42.

250I.L.C. Summary Records of the 2278th Meeting // Yearbook of the International Law Commission. 1992. Vol. I. P. 159.

251I.L.C. Preliminary Report on the Content, Forms and Degrees of International Responsibility (Part 2 of the Draft Articles on State Responsibility), by Mr. Willem Riphagen, Special Rapporteur. U.N. Doc. A/CN.4/330 and Corr. 1-

3(1980). § 95. For example, for a review of several different ways to calculate equivalence in the practice of WTO Dispute Settlement Body, see: Ispolinov A.S. Ekvivalentnost’ sanktsiy v VTO: ponyatiye i praktika opredeleniya //

Zakon. 2014. No. 11. S. 80-85.

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The qualitative approach

The quantitative approach to proportionality is unsatisfactory because it appears both mechanical and subjective. Therefore, another doctrinal strand insists instead on the qualitative approach – the one which measures proportionality in relation to purposes that a countermeasure is supposed to achieve. The essence of the qualitative approach has been aptly expressed by Myres McDougal:

[Reprisals] should be adapted and related, not so much to the past illegality but rather and primarily to the future purpose sought. … [T]he legitimate purpose of reprisals is not the infliction of retribution but the deterrence of future lawlessness. … [T]he kind and amount of permissible reprisal violence is that which is reasonably designed … to induce the termination of and future abstention from [unlawful acts].252

In Russian scholarship, purposeor rights-related definitions of proportionality have been suggested by D.B. Levin253 and R.R. Batrshin.254

Reliance on purposes and values is supposed to make sure that proportionality is not reduced to a rigid “mathematical” ratio255 but rather that it “treats each situation as a particular case”.256 According to this version, coercion is proportionate only if it is really necessary to fulfill the social functions of countermeasures – ensuring cessation of a wrongful act, vindication of affected rights, return to status quo ante.257 But purposes and values are also needed to serve as a check on power and to safeguard the rights of affected states. Values permit only as much compulsion as is necessary to protect them, even if this would mean that a

252McDougal M., Feliciano F. Op. cit., p. 682.

253Levin D.B. Sanktsii v mezhdunarodnom prave // Pravovedeniye. 1981. No. 1. S. 40-48, 44.

254Batrshin R.R. Otvetstvennost’ gosudarstva i primeneniye kontrmer v sovremennom mezhdunarodnom prave. Dis. … kand. yurid. nauk. Kazan, 2005. S. 171.

255Zoller E. Op. cit., p. 131.

256Ibid., p. 137.

257Scholars and practitioners usually recognize that countermeasures may only serve restorative, not retributive, purposes (with the exception of response to international crimes). See I.L.C. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. P. 328-329 (Commentary to Article 49, § 1); Tunkin G.I. Op. cit., s. 478; Skakunov E.I. Op. cit., s. 86; Kurs mezhdunarodnogo prava v 7 t. T.3. S. 198-199; Lukashuk I.I. Op. cit., s. 328-330.

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countermeasure be milder than the original wrongful act.258 In short, the qualitative approach relies on necessity instead of equivalence, seeking – just as the quantitative approach – to make international law both “relevant” and “autonomous”.

However, the qualitative approach is insufficient, too. On the one hand, it is just as formal and therefore “irrelevant” as the quantitative one. Construed by reference to purposes of a countermeasure, proportionality becomes, to quote Karl

Zemanek, an “empty formula”,259 because such purposes are themselves abstract. To invoke “cessation of wrongdoing” or “protection of rights” would not help define the limits of a countermeasure where the very question is how to take account of both wrongs (initial action and response) and the rights of both states. As Riphagen reminds, a countermeasure is “itself either a limitation of rights [of a responsible state] or a breach of an obligation under international law [towards that state]”.260

For example, to try to measure proportionality by what is necessary to restore

“economic freedom” of a state would be fruitless where economic freedoms of both states are at stake.261 The social mission of proportionality is precisely to be able to relate the two to each other. But to argue that proportionality must be measured vis- à-vis the aim of restoring a balance in the relations between the two states262 would be a petitio principii and would “simply leave[] the question fully open”,263 because the very notion of an aim was initially invoked to determine what a balanced (proportionate) countermeasure would look like.

On the other hand, the qualitative approach cannot prioritize between competing interpretations of a countermeasure’s aims in specific cases. It is a common point that in the law of countermeasures, as elsewhere, “the relative

258Zoller E. Op. cit., p. 136.

259Zemanek K. Op. cit., p. 42.

260I.L.C. Preliminary Report on the Content, Forms and Degrees of International Responsibility, by Mr. Willem Riphagen (Op. cit.). § 79.

261On this, see my analysis of the Air Service case below, p. 82-86 of this study.

262Cannizzaro E. Op. cit., p. 907-908.

263I.L.C. Preliminary Report on the Content, Forms and Degrees of International Responsibility, by Mr. Willem Riphagen (Op. cit.). § 98.

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importance of different rights to different states is a matter of subjective appreciation”.264 But the qualitative approach does not offer any criteria that would allow us to distinguish one subjective appreciation of a proper balance of rights or of proper status quo ante (a legally correct one) from another such appreciation (a legally incorrect and impermissible one). This leads to loss of “autonomy”. Proportionality becomes a matter of self-judgment: “By determining the aim of its action, the responding state would impose its own standard for assessing the proportionality of its action”.265 The qualitative approach is therefore criticized as vague and malleable, entailing high risk of abuse, and is contrasted with the determinacy of facts: “[Value-laden] proportionality is not safe, for its meaning is unspecific and rather dangerous, whereas equivalence is deemed to refer to a more precise legal concept”.266 As long as the qualitative approach, being abstract, is unable to curtail discretion of a decision-maker in reaching specific substantive solutions, it is said to “feature an inherent subjectivism” and render the principle of proportionality “practically meaningless”.267

Attempted reconciliation

Neither the quantitative nor the qualitative approaches are able to stand on their own. Each is vulnerable to the critiques of “irrelevance” and “non-autonomy”. It is therefore not surprising that the mainstream approach to proportionality in the law of countermeasures is an attempt to combine the two. From classics to contemporaries, the recurring idea is a “two-tier criterion of proportionality”,268 an amalgam of both quantity and quality. Thus, in Lassa Oppenheim’s International

264O’Keefe R. Op. cit., p. 1165.

265Cannizzaro E. Op. cit., p. 895.

266Zoller E. Op. cit., p. 127. See also: I.L.C. Report of the International Law Commission on the Work of its FortyFourth Session (4 May – 24 July 1992). U.N. Doc. A/47/10. P. 31 (during the discussion of proportionality criteria in the law of countermeasures, some ILC members argued that the criterion of “equity” was “too vague and uncertain”).

267Cannizzaro E. Op. cit., p. 895.

268Elagab O.Y. Op. cit., p. 134.

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Law we find that “reprisals … must be in proportion to the wrong done and to the amount of compulsion necessary to get reparation”;269 in W.E. Hall’s – that reprisals must be “limited to such acts only as are the best for enforcing redress” but what is

“best” should be determined “under the circumstances of the particular case”

(emphasis added. – G.V.).270 Oscar Schachter stated that “reprisals must not be disproportionate to the violations to which they respond” but they must also be “in proportion to the nature and gravity of the offence” and its impact on the values at stake.271 Many Russian scholars also argue for a mix of quality and quantity in proportionality analysis.272 For instance, Vladimir Vasilenko insists that, in its choice of a countermeasure, a state not only must compare the degrees of harm caused respectively by a wrongful act and a coercive response, but also must “not exceed a reasonable relation between the intensity of coercion and protected values”.273

Equally, codifications of the law of countermeasures have invariably defined proportionality through the original wrongful act and its consequences – but have also consistently expressed those referents in evaluative terms, such as “gravity of wrongful act”, and have related them to a countermeasure’s purposes.274 The

269Oppenheim L. International Law. Vol. II. 2nd ed. L.; N.Y., 1912. P. 44.

270Hall W.E. A Treatise on International Law. 8th ed. Oxford, 1924. P. 434.

271Schachter O. International Law in Theory and Practice // Collected Courses of the Hague Academy of International Law. Vol. 178. 1982. P. 178-179. The duality of Schachter’s approach is illustrated by his treatment of the Tehran Hostages case (International Court of Justice. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran). Judgment of 24 May 1980 // I.C.J. Reports 1980. P. 4). Schachter argued that the introduction of wide-reaching financial sanctions by the United States against Iran was a proportionate, even if a severe, countermeasure in the light of an especially important aim it pursued: “[T]he gravity of the hostage seizure was such that strong and effective counter-measures were justified in the effort to overcome the resistance of Iran”

(Ibid., p. 179).

272See, e.g.: Lukashuk I.I. Op. cit., s. 341-342; Mingazov L.Kh. Effektivnost’ norm mezhdunarodnogo prava: teoreticheskiye problemy. Kazan, 1999. S. 321; Skakunov E.I. Op. cit., s. 174, 194-196.

273Vasilenko V.A. Op. cit., s. 165.

274According to the 1934 resolution of Institut de Droit International, an injured State must proportion reprisals “to the gravity of the act denounced as illegal and extent of the injury suffered” (Régime des Représailles en Temps de Paix, Art. 6, § 2 // Annuaire de l’Institut de Droit International. Vol. 38. 1934. P. 710). Restatement (Third) of the Foreign Relations Law of the United States (§ 905(1)(b) (1987)) provides that a countermeasure must not be “out of proportion to the violation and the injury suffered” but also must be “necessary to terminate the violation or prevent further violation, or to remedy the violation”.

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codification work of the ILC on the topic of state responsibility has, too, been strongly influenced by the two-tier approach. Special Rapporteur Arangio-Ruiz has formulated it as follows:

[P]roportionality should be assessed by taking into account not only the purely

‘quantitative’ element of damage caused, but also what might be called ‘qualitative’ factors, such as the importance of the interest protected by the rule infringed and the seriousness of the breach.275

Two-tier proportionality runs through the drafts of the articles on state responsibility proposed and adopted by the ILC since 1980s. There, it has been variously defined by reference to an initial wrongful act and its qualitative characteristics (such as “seriousness”276 or “gravity”277) but also by reference to the

“effects” of a wrongful act on an injured state278 and the “effects” of a countermeasure on a responsible state.279 The view that draft articles should “reflect both trends identified … with respect to proportionality”280 has also been expressed by states. The final product of the drafting process, Article 51 of the Articles on Responsibility of States for Internationally Wrongful Acts, adopted in 2001, brings together all these elements and embodies the facts/values duality:

Countermeasures must be commensurate with the injury suffered, taking into account

the gravity of the internationally wrongful act and the rights in question.

275I.L.C. Fourth Report on State Responsibility, by Mr. Gaetano Arangio-Ruiz (Op. cit.). § 55. The terms “quantitative proportionality” and “qualitative proportionality” were first introduced by Special Rapporteur Riphagen in 1980. See I.L.C. Preliminary Report on the Content, Forms and Degrees of International Responsibility, by Mr. Willem Riphagen (Op. cit.). §§ 92, 94-95.

276I.L.C. Sixth Report on the Content, Forms and Degrees of International Responsibility (Part Two of the Draft Articles); and “Implementation” (Mise en Oeuvre) of International Responsibility and the Settlement of Disputes (Part Three of the Draft Articles), by Willem Riphagen, Special Rapporteur. U.N. Doc. A/CN.4/389 and Corr. 1 & 2 (1985). P. 11 (Art. 9, § 2).

277I.L.C. Report of the International Law Commission on the Work of its Forty-Seventh Session (2 May – 21 July 1995). U.N. Doc. A/50/10. P. 64 (Art. 13).

278Ibid.

279I.L.C. Sixth Report on the Content, Forms and Degrees of International Responsibility, by Willem Riphagen (Op. cit.). P. 11 (Art. 9, § 2).

280I.L.C. U.N. Doc. A/CN.4/488 and Add. 1–3 (Op.cit.). P. 160 (e.g.: “the countermeasure must be related to the principle implicated by the international wrong” (values) – but “the wrongful act may illustrate what kind of measure might be effective to bring the wrongdoing State into compliance with its obligations” (facts)).

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The ILC Commentary to Article 51 makes clear that proportionality must be measured by “taking into account not only the purely ‘quantitative’ element of the injury suffered, but also ‘qualitative’ factors such as the importance of the interest protected by the rule infringed and the seriousness of the breach”;281 “qualitative” factors in Article 51 are further defined through “the gravity of the internationally wrongful act” and “the rights in question”, while reference to the latter includes rights of both an injured state and a responsible state.282 The Commentary also expresses an understanding that neither of the two groups of factors is self-sufficient: on the one hand, proportionality is not reducible to mere necessity of achieving purposes of countermeasures;283 on the other hand, a quantitative comparison must be complemented by an analysis of “the importance of the issue of principle involved”284 in order to avoid “inequitable results”.285

However, the strategy of reconciliation fails precisely because the qualitative and the quantitative approaches must rely on each other. As a result, proportionality analysis turns into circular legal argument.

“Equivalence” needs an external evaluative standard to be measured against.

Otherwise, we would not know which facts to include in the comparison and what value to assign to each fact, and we would also be unable to overrule anyone else’s factual picture. Without a value-based frame of reference, “equivalence” would be both unhelpful and helpless. It is in this sense that we should understand the following comment by Riphagen:

[P]roportionality between wrongful act and legal consequence is always “qualitative”,

inasmuch as “the scales of justice” are involved. Indeed, the choice … will always be

281I.L.C. Draft articles on Responsibility of States for Internationally Wrongful Acts, with commentaries. P. 344 (Commentary to Article 51, § 6).

282Ibid.

283Ibid. (Commentary to Article 51, § 7) (the question of proportionality is “partly independent of the question whether the countermeasure was necessary to achieve the result of ensuring compliance”).

284Ibid.

285Ibid (Commentary to Article 51, § 6).

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influenced by the seriousness of the actual wrongful act as well as by the seriousness of the actually applied sanction, but there can never be an exact “weighing”...286

Scholarly attempts to rid proportionality of the qualitative element are futile, as they only reveal “importation” of values through the backdoor. For example, Roger O’Keefe re-characterizes the qualitative “gravity” and “rights” criteria in Article 51 as mere parts of the quantitative criterion of “injury suffered”. But this simply moves the problem of proportionality into the determination of the degree of “moral damage” caused to an injured state – hardly a value-free exercise.287

Yet, in order to apply the qualitative approach, we would need to refer to specific facts to substantiate our vision of “necessity”. Where is the line between necessary (and therefore proportionate) enforcement and unnecessary (and therefore disproportionate) punishment to be drawn? We would need facts to make these terms meaningful: “Punitive, protective and reparative elements are mixed in the considerations of the author State and in the perception of the object State”, so that the relative prevalence of one or another depends “on the circumstances of the particular case”.288 And we would also need facts to set clearly defined limits in order to constrain subjective appreciation of values: proportionality must curtail discretion of states to determine aims of their countermeasures “by requiring that the aim pursued is not manifestly inappropriate to the situation”.289 Qualitative approach, too, can avoid being both unhelpful and helpless only by turning to its opposite. Even consistent proponents of the values approach to proportionality ultimately have to describe their vision of proportionality in factual terms when they need to distinguish between permissible and impermissible countermeasures. For example, McDougal has acknowledged that “violence so gross as to have no

286I.L.C. Preliminary Report on the Content, Forms and Degrees of International Responsibility, by Mr. Willem Riphagen (Op. cit.). § 95.

287O’Keefe R. Op. cit., p. 1162-1163.

288Zemanek K. Op. cit., p. 35; Zoller E. Op. cit., p. 125 (arguing that “some actions are real countermeasures and some others are not because of other features which belong to other legal concepts… [and therefore e]very feature of the same action has to be weighed in order to determine which element supersedes the others”).

289Cannizzaro E. Op. cit., p. 897.

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reasonable relation to the postulated deterrent effect is appropriately characterized, not as a legitimate reprisal, but as a new and independent unlawful act” (emphasis added. – G.V.).290

Ultimately, if, as Arangio-Ruiz has noted, “the two kinds of proportionality [are] two sides, so to speak, of the same coin”,291 then proportionality discourse in the law of international responsibility can only be an endless flipping of that coin. I will now illustrate this by looking more closely at the two most prominent cases on proportionality of countermeasures – the Air Service case and the GabčikovoNagymaros case.

§ 2. Proportionality of countermeasures: the practice of international

courts

The Air Service case

In the Air Service Agreement of 27 March 1946 between the United States of America and France case (“Air Service case”) decided by an arbitral tribunal in 1978, the dispute concerned mutual regulatory measures taken in the area of air transport relations between the United States and France. In response to France’s refusal to allow a change of gauge in London on round trip flights from the US West Coast to Paris operated by Pan Am, a US airline, the United States fully suspended

Air France flights to Los Angeles. Addressing the issue of proportionality of the US countermeasure, the tribunal began with a purely quantitative approach:

It is generally agreed that all counter-measures must, in the first instance, have some degree of equivalence with the alleged breach; this is a well-known rule.292

The yardstick of a permissible countermeasure, according to the tribunal, was whether it “restore[d] in a negative way the symmetry of the initial positions”293 of

290McDougal M., Feliciano F. Op. cit., p. 682.

291I.L.C. Third Report on State Responsibility, by Mr. Gaetano Arangio-Ruiz (Op. cit.). P. 21 (fn. 140).

292Air Service Agreement of 27 March 1946 between the United States of America and France // 18 R.I.A.A. 417,

443.§ 83 (1978).

293Ibid., p. 445, § 90.