The Use of Proportionality in the Recent Case-Law of the ICJ

Abstract

The paper explores the controversial role of proportionality as a method of judicial review of the actions of States in the recent case-law of the International Court of Justice. It moves from the hypothesis that the Court is improving the meaning and function of the requirement of reasonableness, in certain recent cases considering also the adequacy and necessity of the measures adopted by the States. In particular, the modern concept of reasonableness embodies not only the prohibition of the illogical and arbitrary exercise of powers, but also the duty to respect the core of other legal interests, whenever they may be impacted by the actions of States. The paper also stresses a certain convergence of the international practice in this field. This tendency calls for a more active role of the Court in a context where other international judges have already developed a similar method of review.