Proportionality In International Law Research Articles

Content and practical application of the principle of proportionality in international law

The presence of the principle of proportionality in separate branches of international law indicates that it affects its fundamental, ideological foundations and is related to international law as a whole. At the same time, despite the importance that the principle of proportionality has in international law, disputes regarding its content, the essence of the role of proportionality in theory and practice are still the subject of discussions. The article is devoted to the analysis of the practical application of the principle of proportionality in international law.
 In the course of the conducted analysis, it was established that the principle of proportionality in international law manifests itself in various forms and contexts. At a time when it plays a decisive role in the protection of human rights, in certain areas of international law the principle does not have clear boundaries, and the possibility of applying the three-stage verification causes reasoned discussions. Like the principle of justice, the principle of proportionality does not involve the mechanical application of norms and rules, but is primarily aimed at achieving reasonable and fair results in each individual case.
 It was established that the use of the principle of proportionality makes it impossible to refer to precedent judicial practice, since the result of its use depends on the specific context, existing circumstances and established factors. Basically, discussions about the application of the principle of proportionality revolve around spheres, the subjects of which disputes are not regulated by special agreements. This makes a uniform and simplified application of the principle of proportionality impossible, without canceling the need for its application. The above causes a general scientific interest in the peculiarities of the implementation of the principle in practice, namely: analysis of sanctions policy and reprisals in response to violations of international law; assessments of the role of proportionality in maritime disputes and disputes related to trade relations within the framework of the World Trade Organization, as well as bilateral protection of international investments; features of the application of the principle by arbitration courts and tribunals during the analysis of the actual circumstances of cases, etc.
 Despite the fact that the principle of proportionality has significant potential, its main drawback remains the dependence on the evaluation judgments of the subjects who apply it in practice. A significant flaw in the implementation of the principle of proportionality lies in the definition of the independence and independence of international judicial and other bodies in international law, their material, financial and other dependence on different states (for example, on the position of the countries in which the headquarters of these structures are located); dependence of judges and arbitrators on the countries in which they live or whose citizens they are, etc.

Proportionality in International Law: Whose Interests Count?

Proportionality in International Law: Whose Interests Count?

The Principle of Proportionality in International Law: Foundations and Variations

Originally based upon the principle of equity, proportionality is predominantly used in the field of human rights protection, the use of force and countermeasures, humanitarian law, maritime boundary law, trade law and investment protection. The article finds that components of proportionality are shared and variably applied in these areas. The main challenge relates to weighing and balancing of interests in judicial review, reflecting upon the varied status and authority of international tribunals. The article submits that proportionality or necessity in terms of assessing the relationship of means and end, seeking least intrusive measures, is well-established and qualifies as a self-standing rule of customary international law. It should be termed strict proportionality. However, the component of weighing and balancing interests amounts to a general principle of law and applies in context. It informs the interpretation of the law at hand and is subject to varying standards of review.

The Principle of Proportionality in International Law

AbstractWhilst the principle of proportionality indisputably plays a crucial role in the protection of fundamental rights, it is still unclear to what extent it applies to other fields in international law. The paper therefore explores the role it plays in selected fields of public international law, beyond human rights. The examination begins in the classical domain of reprisals and in maritime boundary delimitation and continues to analyse the role played in the law of multilateral trade regulation of the World Trade Organization and in bilateral investment protection. In an attempt to explain differences in recourse to proportionality in the various fields, we develop in our conclusions a distinction between horizontal and vertical constellations of legal protection.

Choosing among the Shades of Nuance: The Discourse of Proportionality in International Law

AbstractProportionality has been largely misunderstood both by its proponents and by its critics. On the one hand, it has been wrongly regarded as a more transparent and at the same time a more controllable alternative to other types of legal discourses. On the other hand, it has been incorrectly viewed as a realm of unlimited subjectivity and pure politics. In fact, proportionality oscillates between law and politics, trying to reconcile the two yet constantly falling into one or another. The article studies the dialectical structure of proportionality and explores proportionality as an argumentative practice.

Gay Rights in Russia? Russia's Ban on Gay Pride Parades and the General Principle of Proportionality in International Law

The Russian Federation, along with several of its constituent republics and regions, has recently enacted laws prohibiting Gay Propaganda and restricting the adoption of children to countries which recognize same sex marriage. The Russian laws have been adjudicated and found constitutional, as reasonable restrictions on fundamental rights necessary to secure state interests in protecting the family and ensuring reproduction. At the same time, the Russian laws are violations of Russia's international obligations to respect the fundamental right of free speech under the European Convention of Human Rights and the International Covenant on Civil and Political Rights. This article examines the application of the proportionality principle in Russian constitutional law and international human rights law to explain why the results differ. It also explains the political dynamics which shape and will shape the construction of LGBT rights in Russia.

Proportionality in International Law

Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters.The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments.If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle.