A Taxonomy of Proportionality in International Courts

Abstract

If lawyers seek to define a 'universal' or 'global' norm through the trends of international courts rather than through domestic or even regional ones, the arguments of proportionality's champions who claim its 'near' universal appeal as a judicial tool become problematic. In the international adjudication of individual rights, the 'principle of proportionality’ is often clear and explicit, but 'proportionality as a judicial tool' produces inconsistent results. For example, the ECtHR, through cases such as Behrami and Saramati, employs a proportionality that elevates institutional conceptions of rights over individual ones, whereas the ICJ, in adjudicating the human right to self-determination, has debatably done just the opposite in recognizing the 'unilateral' form of that right. Moreover, the ECtHR and the ECJ both tend to avoid proportionality altogether when it is 'hierarchy inhibiting'. In international humanitarian law, the notion of proportionality is infused with outdated assumptions about symmetry of capacity and ends that are justifiable, and in ICL, while the ICC and hybrid tribunals claim to recognize a plurality of retributive or expressive punishment, the principle of proportionality disintegrates this claim through practice (this is evident through sentencing at various ICL tribunals, for example). In international economic law, meanwhile, the WTO's proportionality based the 'General Exceptions' of GATT Art. XX produce inconsistent 'proportions' with respect to 'public morals'; and in international investment law (IIL), arbitral tribunals such as the ICSID asymmetrically apply proportionality to the actions of states and not to investors.

Keywords: Proportionality, universality, legitimacy, international constitutionalism, ECtHR, ICJ, WTO