Lunch seminar with Kevin Crow
A Taxonomy of Proportionality in International Courts
If one defines a ‘global norm’ through international World Order trends rather than through domestic or even regional ones, proportionality’s claim to ‘near’ universality becomes problematic. In the international adjudication of individual rights, the use of ‘proportionality’ is clear and explicit, but the principle produces inconsistent results: 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. In international criminal law, 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 the ECCC, the ICTY, and the ICC, 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.
In international courts, the diversity of proportionality itself undermines any claim to its universality; it would be more accurate to identify a ‘global norm’ of emerging ‘proportionalites’ rather than ‘proportionality’. One may explain this diversity in part by categorizing the various World Order institutions in terms of ‘horizontal’ and ‘vertical’ adjudication, and by looking at whether the court in question is primarily ‘outcome’ motivated or ‘security and predictability’ motivated. In addition to these approaches, this paper argues, framing the problem in terms of ‘pluralism’ and ‘unity’ provides a particularly helpful prescriptive lens. While privileging either approach would create an instant hierarchy—a ‘better’ or ‘worse’ goal for World Order institutions—this conference paper will employ ‘pluralism’ and ‘unity’ as prescriptive tools: two ‘medicines’ to prescribe to different types of problems in international law. Following a broad literature on international constitutionalism, this paper rejects the notion that international lawyers need unity to combat fragmentation. However, following Koskenniemi, the paper will take issue with the implicit apathy of pluralism’s champions; specifically, that pluralism “ceases to pose demands on the world.”. By linking the degree of an international court’s effectiveness (and at times legitimacy) to the degree of state deference after the point of judgment, the paper builds the case that an increasing degree of deference (i.e. a pluralistic approach) both is and should be the emerging status quo for international courts.
All interested are welcome to attend. Registration is not necessary.