{"id":4547,"date":"2015-08-10T00:00:00","date_gmt":"2015-08-10T04:55:15","guid":{"rendered":"https:\/\/staging.voelkerrechtsblog.org\/articles\/towards-an-integrated-predictable-and-coherent-international-legal-system-a-defence-of-proportionality-balancing\/"},"modified":"2020-12-09T13:44:25","modified_gmt":"2020-12-09T12:44:25","slug":"towards-an-integrated-predictable-and-coherent-international-legal-system-a-defence-of-proportionality-balancing","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/towards-an-integrated-predictable-and-coherent-international-legal-system-a-defence-of-proportionality-balancing\/","title":{"rendered":"Towards an integrated, predictable and coherent international legal system"},"content":{"rendered":"

A response\u00a0to Su\u00e9 Gonz\u00e1lez Hauck<\/a><\/strong><\/p>\n

In her post Su\u00e9 Gonz\u00e1lez 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 Su\u00e9 Gonz\u00e1lez Hauck. In my conclusion I will provide a positive perspective on proportionally analysis and reflect upon the way in which proportionality can contribute to the defragmentation and harmonization of the international legal order.\u00a0<\/p>\n

Proportionality: Four Normative Decisions and Neutral Decision-making Procedure<\/strong><\/p>\n

The understanding of \u2018proportionality balancing\u2019 that underlies this comment builds up on the third prong of the Verh\u00e4ltnism\u00e4<\/em>\u00dfigkeitspr\u00fcfung<\/em> applied in German constitutional law \u2013 the so called proportionality in the narrow sense (stricto\u00a0<\/em>sensu<\/i>). This implies that the process of balancing is not an isolated exercise but is part of a comprehensively structured scheme for the rationalization of legal arguments which can be commonly broken down into four prongs: the legitimate aim test, the \u2018suitability\u2019 test, the \u2018necessity\u2019 test, and the \u2018proportionality\u2019 test in the strict or narrow sense \u2013 the balancing.<\/p>\n

Three main features characterize this test from a more theoretical point of view: the principle of proportionality includes four normative decisions on a rather high level of abstraction, beyond these normative decisions it is a mere neutral decision making procedure which sets a metric for the rationalization of external<\/em> reasons.<\/p>\n

As the first normative decision the requirement of a legitimate purpose implicates that certain legislative purposes are filtrated out. The suitability test encompasses as the second normative decision that means that foster the ends are valued higher than means that do not. As the third decision the necessity test entails that less restrictive means are preferable than more restrictive means. Finally, the balancing stipulates that two colliding interests shall be put in context and both shall be accomplished to the greatest extent possible. It is important to emphasize that proportionality does not, however, determine more concrete normative decisions (M\u00f6ller<\/a>).<\/p>\n

Once this basic normative framework is established the proportionality test becomes a neutral decision-making procedure \u2013 without fully predetermining any outcomes (Nolte<\/a>). This neutral formal structure then sets the metric for the following internal justification<\/em> (within the proportionality test) which is the inferential deduction of a result from premises that are external <\/em>to the test (Klatt and Meister<\/a>).<\/p>\n

These external premises<\/em> for example define standards for the evaluation of facts as the background for the suitability test and the necessity test (such as the burden of proof and the standard of proof) as well as the factors that are processed by the balancing (such as moral and political considerations).<\/p>\n

On Fallacies: Deformalization of Legal Discourse?<\/strong><\/p>\n

Contrary to what Su\u00e9 Gonz\u00e1lez Hauck argues proportionality balancing does not imply a normative decision to the effect that every right is to be turned into a principle and be made an object of weighting. Insofar proportionality cannot be taken and should not be understood as a \u2018pure principles model\u2019 (reines Prinzipienmodell<\/em>) \u2013 a fact that is also acknowledged by Alexy<\/a> himself.<\/p>\n

The character of a norm, whether it is a right or a trump, as well as its weight, is defined by external reasons<\/em> that are to be found outside of the test. From this follows that balancing itself does not leave the legal form aside altogether. The proportionality test \u2013 including the balancing phase \u2013 is per se<\/em> neutral with regard to the formal qualification of a norm. It is not inconsistent with the idea of \u2018absolute\u2019 rights or \u2018trumps\u2019. Though of course, balancing that involves a \u2018trump\u2019 has a limited advantage: it merely serves as a method by which the primary value of the trump is clearly expressed within an argumentative structure \u2013 without simply denying or ignoring conflicting interests.<\/p>\n

Even if one assumes that balancing fosters international judicial bodies to frame normative conflicts as conflicts of principles rather than conflicts of rules, the concerns expressed by Su\u00e9 Gonz\u00e1lez Hauck, namely that his would go at the expense of the benefits of rules (such as transparency, predictability and equality) can be \u2013 at least partly \u2013 mitigated. It would go beyond the scope of this comment to engage in a thorough reflection on the relationship between the interpretation of rules and the interpretation of principles. It is here enough to highlight that also any process of rule- interpretation \u2013 taking complex hermeneutical implications into consideration \u2013 most likely (if not necessarily) involves balancing in a way that is not per se<\/em> open. Hence it is \u2013 at least \u2013 very questionable whether any interpretation of a rule by its very nature promises a higher level of transparency and predictability.<\/p>\n

Intransparency and Perpetuation of Structural Bias?<\/strong><\/p>\n

Any failure with regard to the assessment of the precise content of principles is not to be attributed to the balancing but to the external justification<\/em> of the premise. The assessment of the content of a principle is first and foremost part of the determination of the premises that constitute the external reasons<\/em> \u2013 not of the proportionality balancing.<\/p>\n

As the balancing process requires clear premises, rather to the opposite of what Su\u00e9 Gonz\u00e1lez Hauck suggests, it is likely to foster clarification of the content of the principles in question. Contextualizing\u00a0the\u00a0premises \u2013 as part of the balancing \u2013 is a process that is especially suited for revealing flaws in the determination of principle\u2019s content. Moreover, as pointed out above, the alternative \u2013 mere interpretation without open contextualization \u2013 is more likely to obscure underlying premises than the forthright process of balancing.<\/p>\n

Furthermore, I would not subscribe to the proposition that balancing tends to negate the controversial nature of the conflicting principles in question, which goes hand in hand with the claim that proportionality pretends to be independent of moral reasoning and policy considerations (see the critique by Tsakyrakis<\/a>). Proportionality rather discloses which components of the argument are made on the \u2013 narrow \u2013 normative premises internal<\/em> to the proportionality analysis, and which are based on moral considerations and alike in the context of the determination of the external<\/em> premises (Klatt and Meister<\/a>).<\/p>\n

Shifting the Burden of Justification?<\/strong><\/p>\n

Finally, I only agree partly with Su\u00e9 Gonz\u00e1lez Hauck\u2019s last observation that proportionality balancing would lead to shifting the burden of justification in international legal discourse.<\/p>\n

It is true that if one exposes human rights to proportionality balancing this well might go at the expenses of human rights. In assessing this risk, however, one has to distinguish between instances in which human rights courts take into account non-human rights (Article 31 (3) (c) VCLT<\/a>) and instances in which non-human rights judicial bodies take into account human rights. In the first case, the other relevant rules remain justifications for the limitation of human rights without shifting the burden of justification.<\/p>\n

Only in the latter instance, human rights would be introduced as (potential) justifications for limitations of non-human rights. Yet, it is preferable \u2013 from a human rights law perspective \u2013 that those judicial bodies take human rights into account at all (even as a mere justification), rather than, what would be the realistic alternative, blatantly ignore human rights altogether.<\/p>\n

And again, these considerations on the burden of justification are not predetermined by proportionality balancing. They are external<\/em> reasons.<\/p>\n

A Positive Concept of Balancing as a Device for Defragmentation and Harmonization<\/strong><\/p>\n

Against this background, how then does a positive concept of balancing as a device for defragmentation and harmonization look like?<\/p>\n

The general benefit of proportionality analysis is that it helps courts to distinguish factual evaluation (necessity and suitability) from normative arguments (legitimate aim and balancing stricto sensu<\/em>). Understood as a mere neutral decision making procedure beyond the four basic normative decisions outlined above, it assists with identifying the premises and the context that underlie the legal argument, more than mere interpretation of rules and principles can provide for.<\/p>\n

Understood as another \u2018relevant rule of international law\u2019 within the meaning of Article 31 (3) (c) VCLT<\/a> \u2013 to be precise as a general principle of international law according to Article 38 (1) (c) of the ICJ-Statute<\/a> \u2013 it offers an operational tool that makes the principle of systemic integration applicable as a helpful concept for overcoming defragmentation. It should be considered a complementary instrument for courts which determines how to take into account other rules of international law when applying Article 31 (3) (c) VCLT<\/a>.<\/p>\n

From a broader systemic perspective proportionality \u2013 if applied correctly \u2013 is likely to promote the creation of an integrated, predictable and coherent international legal system. It gives courts a tool at hand to give consideration to other norms of international law and to contextualize different norms. Most importantly it fosters an open discussion within judicial decisions about moral considerations and value preferences \u2013 a discussion that hopefully takes part in shaping an international substantive constitution in a more humanistic manner.<\/p>\n

 <\/p>\n

A rejoinder to this post by\u00a0Su\u00e9 Gonz\u00e1lez Hauck can be found here<\/a>.<\/p>\n

 <\/p>\n

Johann Ruben Leiss<\/a>, MLE, LL.M. (EUI), is a Ph.D. candidate at the Faculty of Law, University of Oslo. Email: j.r.leiss@jus.uio.no<\/em><\/p>\n

 <\/p>\n

\n

Cite as: Johann Ruben Leiss, \u201cTowards an Integrated, Predictable and Coherent International Legal System: A Defence of Proportionality Balancing\u201d,\u00a0V\u00f6lkerrechtsblog<\/em>,\u00a010 August 2015, doi: 10.17176\/20170920-121619.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

A response\u00a0to Su\u00e9 Gonz\u00e1lez Hauck In her post Su\u00e9 Gonz\u00e1lez 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 […]<\/p>\n","protected":false},"author":5,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[3950],"article-categories":[6000],"doi":[3951],"class_list":["post-4547","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-johann-ruben-leiss","article-categories-article","doi-10-17176-20170920-121619"],"acf":{"subline":"A defence of proportionality balancing"},"meta_box":{"doi":"10.17176\/20170920-121619"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4547","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=4547"}],"version-history":[{"count":0,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/4547\/revisions"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=4547"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=4547"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=4547"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=4547"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=4547"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=4547"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}