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Proportionality in public international law

Dr. Matar Hamid Al-Neyadi

06 September 2020

Proportionality is a legal principle that has its roots in the criminal law, and aims to ensure that the punishment for committing a specific crime is equal in severity to the type, gravity and effects of the crime.

Proportionality is a principle used by the legislator and the judge when choosing the type of punishment to be imposed on the perpetrator to ensure that there is some kind of equality and justice between the punishment as a tool to redress the harm that occurred as a result of the crime and the wrong act.

In public international law, the concept of Proportionality has evolved and assumed different roles and tasks that differ in the different branches of public international law.

The role of proportionality is evident in international humanitarian law or the law of armed conflict, the international law of the sea, the international economic law, and the international responsibility for committing mistakes or breaching an international obligation.

In international humanitarian law, proportionality has a pivotal role in evaluating the decisions of the parties to the conflict when they choose the type of weapons to be used on the battlefield, and is there a justification for using a more lethal weapon alone and the size of the harm that is supposed to be inflicted on the enemy in order to force it to stop its aggressive actions, or to exercise its right. Self-defense to protect the interests of the state.

In the advisory opinion of the International Court of Justice in the issue of the legality of the use of nuclear weapons, the court stated that there are no rules prohibiting the use of nuclear weapons for self-defense in cases of necessity in which the survival of the state is threatened with extinction, and accordingly, in other than cases of necessity, the use of the right to self-defense is restricted by the provisions of the law International standards, including the proportionality criterion, to assess the legality of this use.

In the international law of the seas, especially in the rules for determining the maritime boundaries, the role of proportionality emerges to ensure the fairness of the proposed midline and the extent of the influence of a particular island or group of islands, or a difference in the length of coasts between the parties to the dispute, or the existence of fisheries or natural resources in the area of ​​dispute on the fairness of the midline. And the need to amend it to meet the requirements of justice.

Likewise, proportionality has a role in evaluating the measures that states impose to protect the marine environment and their compatibility with freedom of passage or the right of innocent passage.

In international trade agreements, the criterion of proportionality or necessity has a set of uses, including the evaluation of the preventive measures that countries take to protect their markets from the phenomenon of dumping by other countries, and the extent to which these preventive measures are compatible with the need to combat dumping without prejudice to the freedom of global trade.

Proportionality also has a role in evaluating the right to use the countermeasures rule that the affected state uses in confronting the country causing the damage.

In investment laws, the role of proportionality is prominent to settle disputes that occur between the supervisory bodies in a country and the foreign investor who adheres to the general framework for the protection of foreign investment stipulated in international investment agreements.

The proportionality criterion plays a role in evaluating these national measures and the extent of their need to achieve a national interest or prevent a specific harm from occurring without prejudice to the right of the foreign investor to the protection stipulated in international investment agreements, on the basis of which he invested in that country.

The criterion of proportionality in general international law is one of the principles that the international judiciary uses in cases where a dispute is referred to it, to evaluate a specific act, procedure or choice made by one of the parties to the conflict to achieve a specific goal and the extent to which this action, procedure or choice matches the legal obligations of that party Established under international conventions or general legal rules.

Proportionality in this way is considered a balance test to ensure that abuse of the right is avoided, by evaluating the measures or choices taken and their compatibility with the principles of justice.

Adviser in public international law

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"In investment laws, the role of proportionality is prominent for settling disputes between regulatory agencies."