vaipan_g_v_disser

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The described dynamics undermines proportionality’s “relevance”, the idea that it makes the ordering of interests an open and easy-to-follow process.

Third, the idea of the linear, step-by-step “proportionality test” is untenable. Instead, the use of the principle of proportionality in human rights law turns into circular legal argument where elements rely on each other. The structure of argument looks like this (Chart 6).

Chart 6. “Proportionality test”:

A deconstruction.

Figures (1) – (3) here reflect typical moves within proportionality argument about human rights limitations, as discussed above: (1) – arguments that transfer the analysis of an aim’s legitimacy (the Mural Vural case) or necessity (Beit Sourik and

Murat Vural cases) into balancing; (2) arguments that transfer the analysis of

“factors” back into rights and aims (the Mural Vural case); (3) arguments about a

“proportionate alternative” (the Beit Sourik case).

The “proportionality test” is an analytical structure that is being used to get answers. My proposed structure of proportionality as circular argument is a “deep structure” that explains why and how any answers that the “proportionality test” yields can be undermined. My structure shows that the way proportionality argument unfolds and the way its participants challenge each other’s propositions is in fact a

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rather predictable, rather than a haphazard, process. It also makes clear that although the principle of proportionality allows for any human rights limitation, that same principle, due to logical interdependence of its methods, leaves any rights-restrictive decision “underjustified”. It thereby always leaves room for re-opening the argument and challenging the status quo.

Fourth, the principle of proportionality in human rights law belongs to the

“vertical” type. It deals with a conflict of interests between different kinds of international legal subjects (state vs. individual) and a clash between antagonistic values (objectives) of international legal regulation (e.g., freedom of movement and right to property vs. national security in the Beit Sourik case). Also, in a “vertical” fashion, proportionality here gives one interest – a right – special status (weight) vis-

à-vis other interests, which can be overruled only as an exception. “Vertical”-type proportionality therefore embodies the “structural biases”616 built into different regimes of international law as their intellectual predispositions. Such a “bias” is exemplary in the way lawyers define proportionality’s priorities in human rights law:

Proportionality’s nature does not suggest a neutral approach towards … rights. The concept of proportionality is not indifferent to the limitations of rights. On the contrary, it is based on the need to protect them.617

At the same time, we have seen that “horizontal” elements (e.g., reversibility of rights and public interests; conflicts between rights) actually infiltrate the

“vertical”-type model of proportionality in human rights law. So at the end of the day, the separation of a distilled “public law” version of proportionality, such as the one considered in this chapter, is hardly possible. This fact also helps us understand why the declared privileged status of human rights under the principle of proportionality leaves the question of whose rights will enjoy de facto greater legal protection fully open.

616 Koskenniemi M. From Apology to Utopia: The Structure of International Legal Argument. 2nd ed. N.Y.; Cambridge, 2005. P. 600-615.

617 Barak A. Op. cit., p. 4.

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Conclusion

The history of legal thought is a history of disenchantment. One after another, modes of legal thought have been losing their intellectual appeal in the eyes of lawyers. Previous modes of “thinking like a lawyer” continue to remain in use, but just no longer enjoy their professional legitimacy, as lawyers have already lost faith in the ability of those modes to ensure law’s relevance and autonomy.618

Today, international lawyers, as lawyers in general, are enchanted with the principle of proportionality. Publicly and in private conversations, colleagues call proportionality a success story for law in the XX – early XXI centuries: they talk about its “triumphant advance”,619 its “fantastic career”,620 and even name it “the ultimate rule of law”.621 They see the principle of proportionality as more than simply a criterion of international legality. Rather, they think of it as an embodiment of pragmatism; as a universal method of dispute resolution; even as an intellectual foundation of entire regimes of international law.

But even if we were to accept that proportionality marks the “end of history” for legal thought, it would hardly be the happy end we would wish to see. As before, the world today is full of violence, suffering and injustice. Moreover, every day we witness how the principle of proportionality, instead of solving these problems, is being deployed for purposes that international lawyers have always dissociated themselves from: weakening human rights, harming civilians in war, backing economic pressure by powerful states against weaker ones, legitimizing occupation of territories, and so on (some of the cases discussed above may serve as examples).

618See Kennedy, Duncan. The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought // Hastings Law Journal. 2003-2004. P. 10311076.

619Arnold R. Yevropeyskaya konventsiya o zashchite prav cheloveka i osnovnykh svobod i yeyo vliyaniye na gosudarstva Tsentral’noy i Vostochnoy Yevropy // Rossiya i Sovet Yevropy: perspektivy vzaimodeystviya. Sbornik dokladov. M., 2001. S. 60-68, 63.

620Schlink B. Proportsional’nost’. K probleme balansa fundamental’nykh prav i obshchestvennykh tseley // Sravnitel’noye konstitutsionnoye obozreniye. 2012. No. 2. S. 56-76, 74 [Translated from: Schlink B. Proportionality

(1) // The Oxford Handbook of Comparative Constitutional Law / Ed. by M. Rosenfeld, A. Sajó. Oxford, 2012. P. 718-737, 736].

621Beatty D. The Ultimate Rule of Law. Oxford; N.Y., 2004. P. 159-188.

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To this picture, one should add the persistence of heated debates showing the lack of consensus within the profession about what proportionality means and how it should be interpreted in actual contexts. Mutual critiques have something in common: all of them betray an overall professional anxiety about the fate of law in an “age of proportionality”. Lawyers feel concerned about the ability of legal discourse to offer socially adequate ways of dispute resolution without sacrificing its identity vis-à-vis other, extralegal discourses (political, economic, sociological, etc.). One gets an impression that, in search for new foundations of contemporary legal thought, the legal mainstream has embraced an idea whose meaning and consequences it does not fully understand.

In this study, I did not intend to argue either for or against any one of numerous interpretations of proportionality as well as equally numerous suggested alternatives to proportionality. Trying to figure out which of those would be better for contemporary international law was just not my task. Instead, I wanted to challenge the very possibility of a “right” choice between all these options, in other words – to show the limits of both the mainstream thinking about proportionality and its existing critiques.

The mainstream imagines the principle of proportionality as the “third space” between law and politics. In this paradigm, the use of proportionality is a search for a compromise between opposite political positions, carried out within boundaries set by law. Compromise-seeking involves discretion, indeterminacy and arbitrariness, and these are all qualities believed to be inherently threatening for law’s autonomy.

Yet, the mainstream believes that while such indeterminacy is inevitable, it may and should be “tamed”, that is, be kept in check and made more predictable. Also, the risk for autonomy of law is here compensated by introducing relevant extralegal considerations into legal discourse. This seems to make law more transparent, understandable and socially responsive. The principle of proportionality, as commonly understood, is a tiger in a cage: attractive, dangerous, but controllable.

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The preceding analysis has shown that the “third space” is an illusion. Since two basic approaches to proportionality – the facts approach and the values approach

– logically rely on each other, it turns out there is no common frame of reference (spectrum, “scales”, etc.) that could be used to “measure”, even if approximately, proportionality of any particular action. The deconstruction of proportionality has demonstrated that its indeterminacy is not relative (as the mainstream thinks) but absolute. At the same time, the mutual dependence of the facts and the values approaches reduces the administration of proportionality to a series of stereotypical arguments whereby the two approaches merely refer to each other. This dynamics is interrupted by a “strategy of evasion” that masks the crux of the matter. How the court came to this rather than any other balancing formula, remains unexplained.

The principle of proportionality is unable to sustain the “third space” between law and politics as it cannot be at once “relevant” and “autonomous”.

It follows from this study that there are basically two kinds of proportionality critique – one internal, the other external. The various versions of internal critique all challenge a particular approach to the interpretation of proportionality (e.g., a debate between “qualitative”, “quantitative” and various combined approaches to proportionality of countermeasures). The internal critique of proportionality is weak, because a critic occupies one of the positions inside the “relevance” vs. “autonomy” dilemma that destroys the “third space”. To put it differently, scholars who contribute to the internal critique all strive to identify their own, “right” formula

(standard, test) of proportionality, while the analysis above has shown that such a formula does not and cannot exist. Any attempt to argue in favor of this or that approach or to “improve” one of the existing approaches immediately faces objections of “irrelevance” or “non-autonomy”. Instead of solving the conundrum of proportionality interpretation, the internal critique effectively fuels circular argument, as described in this study.

The external critique, to the contrary, challenges the principle of proportionality as a whole. The critic disputes proportionality’s “relevance” or

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“autonomy” and then suggests to abandon this principle altogether in favor of some other, supposedly better option. Examples of the external critique, featured above, include claims that proportionality is harmful to human rights and objections against codification of proportionality in IHL. The external critique is also weak. While it postulates itself outside of the “third space”, this kind of critique, in fact, fundamentally shares the same idea of separate “spaces” – legal, political, etc.

Thus, claims that proportionality undermines human rights protection assume that rights can be sufficiently protected within some other, properly legal space, separated by a “fire wall” from the realm of political expediency. Equally, claims that proportionality in IHL unjustifiably narrows the range of choices in warfare already assumes the existence of an area of “pure discretion”. Yet, the analysis above has demonstrated that proportionality argument absorbs both law and politics. Just as proportionality, by its very design, may be used to decide anything, it also – due to interdependence of its elements – leaves any decision “underjustified”, open to challenge using the same proportionality vocabulary. Consequently, the outcome of proportionality assessment is neither just “application of the law” nor just a “choice”, since both these notions presuppose that the outcome would be, in a sense, infallible (as it would reflect either a legal rule or a decision-maker’s will). What I want to say is that the search for “more” or “less” legal (meaning also “less” or “more” political) alternatives to proportionality is meaningless. “Law” and “politics” (reflected in claims about “formalism” or “arbitrariness”, respectively) turn out to be just

“markers” in the process of argument that can be pursued using not only the grammar of proportionality, but also other legal dialects, or “professional styles”.622

The mainstream understanding of proportionality and both kinds of its critique have more in common than that which divides them. They share an abstract approach to problem-solving that looks for an abstractly optimal solution (a proportionality formula or an alternative to proportionality) in the paradigm of

622 Koskenniemi M. Letter to the Editors of the Symposium // American Journal of International Law. 1999. P. 351361, 355-359.

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abstract “spaces” (legal, political, “third”). Apart from being descriptively flawed, these approaches are also unacceptable from a normative perspective. They leave out of sight the actual consequences of the use of proportionality in specific contexts. Whom does it empower, and whom deprive of an opportunity to have a say and be heard? For whose benefit does it redistribute resources? What prejudices and against which social groups does it help reproduce? It is in these nuances that the principle of proportionality can show itself “better” or “worse”, but the existing approaches leave these issues outside the scope of analysis. Moreover, to the extent that some of the abovementioned approaches are closely linked to an apology of particular institutions (including national courts), such approaches themselves become, as

David Kennedy would say, “part of the problem”.

A new approach to proportionality, suggested in this study, opens up a perspective where, instead of nonexistent solutions to abstract problems of proportionality, there is a vocabulary for solving specific problems in specific contexts. Instead of a search for “better” or “worse” formulae and tests of proportionality, this vocabulary is ready to be deployed to challenge “worse” outcomes of proportionality use and create “better” ones, both through critical studies and practical engagement (including in the context of adjudication). The

“deep structure” of circular proportionality argument that I have outlined describes a process whose outcome is neither predetermined not arbitrary. Rather, it is a result of legal work623 that relies on the structure of argument to challenge the status quo and come up with new legal solutions affecting people’s lives (in turn, challengeable as well).

Unlike the abovementioned “procedural” approaches to proportionality, my view of proportionality as a circular argumentative practice does not imply a belief that the process will by itself culminate in conciliation, help find right answers or offer a range of possible solutions. Instead, proportionality argument develops under

623 On the notion of “legal work” as an activity that seeks to destroy certain meanings and create other ones, see: Kennedy, Duncan. A Critique of Adjudication (Fin de Siècle). Cambridge (MA), 1997. P. 157-179.

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the conditions of absolute indeterminacy, and this indeterminacy is a source of both professional opportunities and professional responsibility for lawyers. On the one hand, indeterminacy gives hope and a chance to act: “When you recognize uncertainty, you recognize that you may be able to influence the outcomes—you alone or you in concert with a few dozen or several million others”.624 On the other hand, indeterminacy makes choice inevitable. A lawyer, and not an abstract rule, shares responsibility for actions (omissions) or decisions that he proposes or defends. Half a century ago, Hersch Lauterpacht said that “guns are propelled by ideas” and “[e]xcept in military language there are no self-propelling guns”.625 This remark remains valid today. Yet, in whose interests and with what consequences lawyers have deployed the idea of proportionality, and in what direction they have propelled the world using proportionality vocabulary in the past several decades, remains mostly unaddressed. This study is an attempt to suggest this new, critical research perspective.

624Solnit R. Hope in the Dark: Untold Histories, Wild Possibilities. 3rd ed. Chicago, 2016. P. xiv.

625Lauterpacht H. On Realism, Especially in International Relations // International Law, Being the Collected Papers of Hersch Lauterpacht / Ed. by Elihu Lauterpacht. Vol. 2. Cambridge, 1975 [1953]. P. 52-66, 65.

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