Proportionality in International Law
- LAST MODIFIED: 30 March 2017
- DOI: 10.1093/obo/9780199796953-0147
- LAST MODIFIED: 30 March 2017
- DOI: 10.1093/obo/9780199796953-0147
In the most general terms proportionality requires a balance to be drawn between frequently conflicting values. Consequently, its application depends on a subjective value judgment and that very indeterminacy sometimes sits uneasily within law. Proportionality, nevertheless, is a pervasive and familiar concept within both the civil and criminal national legal systems of states. The norm first found expression in international law in the doctrine of the just war, the Christian version of which formed the basis of the secular just war writings of early commentators on the developing discipline of international law, such as Grotius and de Vattel. Nowadays the principle is reflected either explicitly or implicitly in several diverse areas of international law. It appears explicitly as either a treaty norm—as, for example, in the regulation of targeting decisions in International Humanitarian Law (IHL)—or as a customary norm in the case of self-defense and Countermeasures. In other situations, proportionality operates as a judicial mechanism of review implicit in the need to balance competing interests such as in European Union Law (EU Law), International Human Rights Law (IHRL), and the dispute settlement regime of the World Trade Organization (WTO). Proportionality is also a component of Maritime Law and Delimitation, the Law of Treaties, and International Criminal Law (ICL). The norm even has considerable support as constituting that elusive concept, a general principle of international law. The significance and scope of its role varies widely depending on the area of international law in question and determines to a considerable extent the amount of literature available on the topic. Despite its increasing importance in international law, exactly what proportionality requires of a particular decision maker in any given area of international law remains unsettled and is the subject of widespread judicial and scholarly debate. There is no one meaning of proportionality that is common in all contexts in which it operates or any consensus as to its application across the board. In order to provide some structure to the debate scholars have identified two major analytical approaches to the application of proportionality that they see reflected in state practice and jurisprudence: the so-called “quantitative” approach where the response is tailored or equivalent to the action against which it is to be measured, and the so called “qualitative” approach where other factors are to be taken into account. It is not suggested in the literature that all practice fits neatly into one or other category, but they are useful for the purposes of analysis and much of the material that follows incorporates these concepts.
Proportionality is an overarching principle of international law and not a discrete subject matter area. To date there is only one general work focusing on the topic by an acknowledged expert in the field: Cannizzaro 2000 (in Italian with a helpful but short English summary). An in-depth book review in English of Cannizzaro 2000, Mazzeschi 2002, provides a real sense of that work. Two excellent general coverages of the operation of proportionality in international law that very much reflect their authors’ common law and civil law backgrounds, respectively, are the article Franck 2008 and the book chapter Bardonnet 1994. Greig 1994, although not a general work as such, provides a lengthy and sophisticated analysis of the international legal system through the lens of reciprocity and proportionality in the law of treaties. Newton and May 2014 is a monograph that includes a chapter on the operation of proportionality in a number of contexts in international and domestic law and is interdisciplinary in nature. Finally, Higgins 1994, adopting the author’s preferred methodology of law as a process of decision making rather than a system of neutral rules, provides a concise overarching assessment of proportionality as part of the author’s General Course on International Law at The Hague Academy. All of these works take distinctive theoretical approaches to their topic and are useful to the reader who is searching for a sophisticated appreciation of the ways in which different scholars conceptualize the function of proportionality in international law. An introduction or overview to the topic can be found in Delbrück 1981–1991 that, although somewhat dated, is still informative, as well as in Crawford 2012. The majority of the general texts on international law contain brief references to proportionality, particularly when discussing the legal norms governing the Use of Force and IHRL. Any more detailed consideration of its application, however, is left to the growing but still relatively few specialist texts, monographs, and articles that consider the role of proportionality in their coverage of particular areas of international law and are detailed under the following headings: Countermeasures; European Union Law; International Criminal Law; International Human Rights Law; International Humanitarian Law; Maritime Law and Delimitation; Treaty Law; and the Use of Force.
Bardonnet, Daniel. “Quelques observations sur le principe de proportionnalité en droit internationale.” In Le droit internationale dans un monde en mutation: En Hommage au Professeur Eduardo Jiménez de Aréchaga. Vol. 2. Edited by Manual Rama-Montaldo, 995–1036. Montevideo, Uruguay: Fundación de Cultura Universitaria, 1994.
Adopting the quantitative/qualitative dichotomy, the author provides an insightful assessment of the measurement of proportionality in various areas of international law.
Cannizzaro, Enzo. Il principio della proporzionalità nell’ordinamento internazionale. Milan, Italy: Giuffré, 2000.
A thoughtful, in-depth study of the role that has been accorded to proportionality in international law generally by a prolific and distinguished writer on the topic.
Crawford, Emily. “Proportionality.” In The Max Planck Encyclopaedia of Public International Law. Edited by Rüdinger Wolfrum. Oxford: Oxford University Press, 2012.
Brief but useful overview of the development of proportionality as a principle of international law from the time of Aristotle up to the era of the 1949 United Nations Charter.
Delbrück, Jost. “Proportionality.” In The Encyclopedia of Public International Law. Vol. 3. Edited by Rudolf Bernhardt, 1140–1144. New York: New Holland, 1981–1991.
A succinct but informative overview that traces the historical origins and development of proportionality and its transition into domestic and international legal systems.
Franck, Thomas M. “On Proportionality of Countermeasures in International Law.” The American Journal of International Law 102.4 (2008): 715–767.
In a masterly, broad-ranging inquiry, Franck applies to proportionality his trademark methodology of the power of legitimacy in furthering compliance with legal norms.
Greig, D. W. “Reciprocity, Proportionality and the Law of Treaties.” Virginia Journal of International Law 34.2 (1994): 295–403.
A lengthy and sophisticated assessment of the role of proportionality (and reciprocity) in remedial actions for treaty breaches, which provides the reader with a real sense of the function of proportionality in international law generally.
Higgins, Rosalyn. Problems and Process: International Law and How We Use It. Oxford: Oxford University Press, 1994.
One chapter of this work applies the author’s hallmark methodology of treating international law as a decision-making process to demonstrate how proportionality (and equity) operate to “ease” the application of the norms of international law in “particular cases” (p. 219).
Mazzeschi, Ricardo Pissilo. “Review of ‘Il principio della proporzionalitá nell’ordinamento internazionale’.” European Journal of International Law 13.4 (2002): 1031–1036.
A succinct but useful assessment of the contribution of the cited monograph by Cannizzarro to the literature.
Newton, Michael, and Larry May. Proportionality in International Law. New York: Oxford University Press, 2014.
The primary focus of this work is proportionality in armed conflict and the discussion is explicitly “soldier-oriented” and matches theory against practice. It is a mix of philosophical, ethical, and legal concepts.
Users without a subscription are not able to see the full content on this page. Please subscribe or login.
- African Commission on Human and Peoples' Rights and the Af...
- Africa’s International Intellectual Property Law Regimes
- Agreements, Bilateral and Regional Trade
- Agreements, Multilateral Environmental
- Applicable Law in Investment Agreements
- Arctic Region
- Armed Opposition Groups
- Aut Dedere Aut Judicare
- Balance of Power
- Bandung Conference, The
- British Mandate of Palestine and International Law, The
- Children's Rights
- Civil Service, International
- Civil-Military Relations
- Collective Security
- Command Responsibility
- Common Heritage of Mankind
- Complementarity Principle
- Conspiracy/Joint Criminal Enterprise
- Constitutional Law, International
- Consular Relations
- Contemporary Catholic Approaches
- Continental Shelf, Idea and Limits of the
- Cooperation in Criminal Matters, Cross-Border
- Courts, International
- Crimes against Humanity
- Criminal Law, International
- Cultural Rights
- Cyber Warfare
- Debt, Sovereign
- Decolonization in International Law
- Development Law, International
- Disarmament in International Law
- Disputes, Peaceful Settlement of
- Drugs, International Regulation, and Criminal Liability
- Early 19th Century, 1789-1870
- Ecological Restoration and International Law
- Economic Law, International
- Effectiveness and Evolution in Treaty Interpretation
- Enforced Disappearances in International Law
- Enforcement of Human Rights
- Environmental Compliance Mechanisms
- Environmental Institutions, International
- Environmental Law, International
- European Arrest Warrant
- Extraterritorial Application of Human Rights Treaties
- Feminist Approaches to International Law
- Financial Law, International
- Forceful Intervention for Protection of Human Rights in Af...
- Foreign Investment
- Freedom of Expression
- French Revolution
- General Customary Law
- General Principles of Law
- Georgia and International Law
- Grotius, Hugo
- Habeas Corpus
- History of International Law, 1550–1700
- Hostilities, Direct Participation in
- Human Rights
- Human Rights and Regional Protection, Relativism and Unive...
- Human Rights, European Court of
- Human Rights, Foundations of
- Human Trafficking
- Hybrid International Criminal Tribunals
- Immunity, Sovereign
- Indigenous Peoples
- Institutional Law
- International and Non-International Armed Conflict, Detent...
- International Committee of the Red Cross
- International Court of Justice
- International Criminal Court, The
- International Criminal Law, Complicity in
- International Criminal Tribunal for Rwanda (ICTR)
- International Criminal Tribunal for the Former Yugoslavia ...
- International Fisheries Law
- International Humanitarian Law
- International Humanitarian Law, Targeting in
- International Investment Agreements, Fair and Equitable Tr...
- International Investment Arbitration
- International Investment Law, Expropriation in
- International Law, Aggression in
- International Law, Amnesty and
- International Law and Economic Development
- International Law, Anthropology and
- International Law, Big Data and
- International Law, Climate Change and
- International Law, Dispute Settlement in
- International Law, Espionage in
- International Law, Hegemony in
- International Law in Northeast Asia
- International Law, Marxist Approaches to
- International Law, Military Intervention in
- International Law, Monism and Dualism in
- International Law, Peacekeeping in
- International Law, Proportionality in
- International Law, Reasonableness in
- International Law, Recognition in
- International Law, Self-Determination in
- International Law, State Responsibility in
- International Law, State Succession in
- International Law, the State in
- International Law, the Turn to History in
- International Law, Trade and Development in
- International Law, Unequal Treaties in
- International Law, Use of Force in
- International Regulation of the Internet
- International Territorial Administration
- International Trade and Human Rights
- Intervention, Humanitarian
- Investment Protection Treaties
- Islamic International Law
- Islamic Law and Human Rights
- Jurisprudence (Judicial Law-Making)
- Jus Cogens
- Just War
- Landlocked Countries and the Law of the Sea
- Law of the Sea
- Law of Treaties, The
- Law-Making by Non-State Actors
- League of Nations, The
- Lebanon, Special Tribunal for
- Legal Status of Military Forces Abroad
- Liability for International Environmental Harm
- Liberation and Resistance Movements
- Mandates in International Law
- Maritime Delimitation
- Martens Clause
- Medieval International Law
- Mens Rea, International Crimes
- Middle East Boundaries and State Formation
- Military Necessity
- Military Occupation
- Modes of Participation
- Most-Favored-Nation Clauses
- Multinational Corporations in International Law
- Nationality and Statelessness
- Natural Law
- New Approaches to International Law
- New Haven School of International Law, The
- Non liquet
- Nonstate Actors
- Nuclear Non-Proliferation
- Nuremberg Trials
- Organizations, International
- Pacifism in International Law
- Palestine (and the Israel Question)
- Peace Treaties
- Political Science, International Law and
- Private Military and Security Companies
- Protection, Diplomatic
- Public Interest, Human Rights, and Foreign Investment
- Rational Choice Theory
- Recognition of Foreign Penal Judgments
- Rendition, Extraterritorial Abduction, and Extraordinary R...
- Russian Approaches to International Law
- Sanctions, International
- Soft Law
- Space Law
- Spanish School of International Law (c. 16th and 17th Cent...
- Sports Law, International
- State of Necessity
- Superior Orders
- Teaching International Law
- Territorial Title
- Theory, Critical International Legal
- Tokyo Trials, The
- Transnational Corruption
- Treaty Interpretation
- Ukrainian Approaches
- Underwater Cultural Heritage
- Unilateral Acts
- United Nations and its Principal Organs, The
- Universal Jurisdiction
- Uti Possidetis Iuris
- Vatican and the Holy See
- Victims’ Rights, International Criminal Law, and Proceedin...
- War Crimes
- Watercourses, International
- Western Sahara