The Development of the Principle of Proportionality

A gLAWcal comment on

Global Law and Sustainable Development

As noted by the author Valentina Vadi, in the Chapter “A History of Success? Proportionality in International Economic Law,” of the book “The Reform of International Economic Governance”: “The main reason for proportionality’s success in the marketplace of ideas is its ability to: (1) restrain the exercise of public authority; (2) shape judicial review; and (3) manage private actors’ expectations.” Indeed, as noted by the author, despite the success of the principle, its legal status from an international law perspective is still unsettled as it is not clear if the concept of proportionality is a general principle of international law or not.

There are several definitions that were given to the principle of proportionality and still until now scholars did not manage to come up with a common definition or to at least have a consensus over the main elements that constitute the principle. The German constitutional scholar Robert Alexy has attempted to provide a definition to the principle from a constitutional perspective. Indeed, according to Alexy: “Constitutional judgments are only correct if they correspond to the outcome of an appropriate balancing of principles”. As such, one could easily notice how the proportionality principle is highly important for the issuance of constitutional judgments. Alexy further stated that: “The Law of Balancing requires the increasing intensity of interference with liberty to be matched by an increasing weight of reasons justifying the interference.” Hence, it is clear from this statement that the principle of proportionality could be used to justify the interference in the liberty of individuals. The European Court of Human Rights (ECHR) has further stressed on the importance of this principle in particular for striking the necessary balance between individual rights and the interests of the society through the interpretation that was given to the principle. According to the ECHR: “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.” Hence, again, it is clear that all scholars and judges both agree on the importance of the proportionality principle in striking the balance that was mentioned above. Things get more interesting in the European context as it was noticed by the scholars Richard Frase and Thomas Sullivan. In that situation, the principle of proportionality has been given three meanings “(1) ends-benefits,(2) alternative means, and (3) limiting retributive proportionality principles: Retributive proportionality strives to ensure a proportional relation between the punishment or award of damages and the actor‘s blameworthiness ... Ends proportionality usually involves a comparison of a single measure to its expected benefits, whereas means proportionality involves comparison of the costs and burdens imposed by equally effective alternative measures . . . But assessments of alternative measures can also involve a form of ends proportionality; if one of the measures imposes higher costs or burdens but is also more effective, the question is whether the greater benefits of that measure justify the added costs or burdens it imposes.” In the Chapter “A History of Success? Proportionality in International Economic Law”, of the book “The Reform of International Economic Governance,” the author Valentina Vadi examined the main elements that are covered by the principle of proportionality. According to the author, “The main reason for proportionality’s success in the marketplace of ideas is its ability to: (1) restrain the exercise of public authority; (2) shape judicial review; and (3) manage private actors’ expectations.” Yet, despite the success of the principle, its legal status from an international law perspective is still unsettled.

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