DiscussionResponse

The Proportionality Critique Still Stands

A Rejoinder to Johann Ruben Leiss Johann Ruben Leiss critically remarks that the perception underlying my original post “overburdens proportionality balancing with assumptions and expectations that do not reflect its character”. This rejoinder aims at resolving some apparent misunderstandings about both the object and the thrust of my critique. My aim is to once again highlight the dangers inherent in the overuse of the prevalent concept of proportionality balancing in …

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Towards an Integrated, Predictable and Coherent International Legal System: A Defence of Proportionality Balancing

A response to Sué González Hauck In her post Sué González Hauck provides a thoughtful and critical perspective on proportionality balancing as a means to overcome fragmentation in international law. In my view, however, her perception overburdens proportionality balancing with assumptions and expectations that do not reflect its character. I will first lay out the understanding of proportionality which this comment relies on, before then discussing the arguments brought forth by …

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DiscussionKick-off

A Critique of Proportionality Balancing as a Harmonization Technique in International Law

Since the publication of the Fragmentation Report by the International Law Commission, international legal scholars and practitioners alike seem to be less concerned about the theoretical questions raised by the fragmentation debate. Instead, they have turned to identifying and examining tools which could avoid or resolve normative conflicts between norms of different specialized areas of international law (also referred to as “regimes”). Proportionality balancing is one of these tools of …

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Discussion

Why Proportionality struggles when it comes to Power

Testing proportionality appears to be a thoroughly theorized method for legal problems of all kinds. It pervades domestic, European and international law, and the Treaty of the EU even extended this principle to matters of competences by Article 5 (4) TEU (see already Article 3b [3] EC Treaty). Accordingly, Advocates General and courts have begun to rely more often on proportionality in powers cases, recently for instance in the OMT-case …

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Identifying even more Common Ground: Autonomous Weapons must not be Exploited to their Full Potential!

A response to Sebastian Wuschka and Rebecca Crootof Felix Boor and Karsten Nowrot In order to avoid the undesirable consequence of becoming outmoded by newly invented methods and means of combat, the normative regime of the ius in bello has always been and is currently even more so dependent upon the ability to anticipate future technological developments in the area of weaponry. Against this background one can indeed readily agree with the widely …

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Autonomous Weapon Systems and Proportionality

A response to Sebastian Wuschka and Rebecca Crootof Recently, two statements on autonomous weapon systems have been published on this blog. In his post, Sebastian Wuschka argues that, because they are not human, autonomous weapon systems “can never be entrusted with the performance of proportionality assessments under IHL”. In her response, Rebecca Crootof states that this is not even necessary, given that it is incumbent on the human commander alone to carry …

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Autonomous Weapon Systems and Proportionality

A response to Sebastian Wuschka An autonomous weapon system is “a weapon system that, based on conclusions derived from gathered information and preprogrammed constraints, is capable of independently selecting and engaging targets.” In his recent post, Sebastian Wuschka argues that the use of such weaponry will necessarily violate the law of armed conflict—specifically, the proportionality requirement. Wuschka and I agree that, because artificial intelligence is not now capable of human-like reasoning, we …

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DiscussionKick-off

Proportionality Assessments under IHL – A Human Thing?

The employment of drones for targeted killings has triggered a debate on the use of lethal force without direct human presence at the battlefield. Regarding the legal framework for today’s remotely-piloted drone systems, this debate must be considered settled. Their conduct’s legal evaluation depends on the execution of each specific strike. Generally, their employment will only be legal under the law of armed conflict, IHL, and if IHL is complied …

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