Proportionality and force in international law
In: American journal of international law, Band 87, Heft 3, S. 391-413
ISSN: 0002-9300
In: American journal of international law, Band 87, Heft 3, S. 391-413
ISSN: 0002-9300
World Affairs Online
In: Legal issues of economic integration: law journal of the Europa Instituut and the Amsterdam Center for International Law, Universiteit van Amsterdam, Band 35, Heft 3, S. 283-294
ISSN: 1566-6573, 1875-6433
In: Schriften zum internationalen und öffentlichen Recht 69
In: Maastricht Faculty of Law Working Paper
SSRN
Working paper
In: The Judge and the Proportionate Use of Discretion (Routledge, 2015)
SSRN
In: The Cambridge yearbook of European legal studies: CYELS, Band 15, S. 439-466
ISSN: 2049-7636
AbstractThe proportionality principle plays a key role in constitutional review of public acts. Its use legitimises the constitutional claims of EU law in the context of a multi-level polity system. The application of proportionality in the EU differs based on whether legal acts of the EU or of its Member States are concerned. In the former case, a manifestly disproportionate test is usually applied, while in the latter case, a least restrictive means test (LRM) is normally used. Both are conditioned by the degree of integration achieved. In future, the use of the principle may involve increasing attention being paid to individual rights.
In: ANDRAŠKO, J., HAMUĽÁK, J.: THE MILESTONES OF LAW IN THE AREA OF CENTRAL EUROPE. Collection of Papers From the International Academic Conference of Ph.D. Students and Young Researchers. Bratislava: Univerzita Komenského v Bratislave, Právnická fakulta, 2018, pp. 39-46, 2018
SSRN
This text is an inquiry into how the international community is understood in and through international law. My prism for this inquiry shall be the principle of proportionality in international humanitarian law, relating expected civilian losses to anticipated military advantage. To properly understand proportionality, I have to revert to the structure of analogical thinking in the thomistic tradition. Proportionality presupposes a third element to which civilian losses and military advantage can be related. In a first reading, I develop how this tradition of thought might explain the difficulties contemporary IHL doctrine has in understanding proportionality. If military commanders misconceive the third element as the sovereignty of their own state, they will invariably apply the proportionality principle in a paternalistic manner. This would obviate the most rudimentary idea of equality among states and do away with the common of an international community. In a second reading, I shall explore whether this third element could instead be thought of as a demos, while retaining the existing framework of analogical thinking. My argument is that this secularizing replacement is possible. Practically, its consequence would be a radical change in the task of the responsible military commander determining proportionality. That commander would now need to rethink civilians endangered by an attack as a demos whose potentiality must be preserved.
BASE
In: TILEC Discussion Paper No. 2013-003
SSRN
Working paper
In: European Review of Private Law, Band 15, Heft 2, S. 255-263
ISSN: 0928-9801
In: Nordic journal of international law, Band 75, Heft 3-4, S. 451-472
ISSN: 1571-8107
AbstractThe principle of proportionality constitutes a complex principle that could be seen as the keystone of the general principles of Community law and ECHR. The aim of this article is to demonstrate the influence of European Community (EC) law and the European Convention of Human Rights (ECHR) on the definition and application of the principle of proportionality in Swedish public law from 1996 to 2006. The Supreme Administrative Court has given some indications as to the application of the principle of proportionality, notably as to the importance of the balancing of interests. Interestingly, this Court has also been proactive as to the application of the principle of proportionality in internal law, e.g. concerning environmental law, tax law, administrative licenses. Moreover, the principle has influenced national legislation in many fields. It is argued, finally, that these jurisprudential and legislative developments increase the judicial protection of the individual and also modifies the structure of traditional judicial review by attributing a new role to Swedish national courts.
In: European journal of international law, Band 12, Heft 5, S. 889-916
ISSN: 1464-3596
In: The Geneva Conventions Under Assault, S. 42-73
In: Nijhoff studies in EU law 8
In: Yearbook of European law, Band 13, Heft 1, S. 105-150
ISSN: 2045-0044