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Necessity and proportionality hold a firm place in the international law governing the use of force by states, as well as in the law of armed conflict. However, the precise contours of these two requirements are uncertain and controversial. The aim of Necessity and Proportionality in International Peace and Security Law is to explore how necessity and proportionality manifest themselves in the modern world under the law governing the use of force and the law of armed conflict, and how they relate to each other. The book explores the ways in which necessity and proportionality are applied in practice and addresses pressing legal issues in the law on the use of force, including the controversial "unwilling and unable" test for the use of force in self-defense, drones and targeted killing, the application of this legal regime during civil war, and the need for further transparency in states' justification for the use of force in self-defense. The analysis of the role of military necessity within the law of armed conflict on the modern battlefield focuses on the history and nature of the principle of military necessity, the proper application of the principle of proportionality, how commanders should account for mental harm in calculating proportionality, and the role artificial intelligence and autonomous weapons systems may play in proportionality analysis. The book concludes with a discussion of the potential role of proportionality in the law governing post-conflict contexts.

AbstractThis article presents a functional explanation of why proportionality has become one of the most successful legal transplants in contemporary constitutional law. It argues that proportionality helps judges mitigate what Robert Cover called the 'inherent difficulty presented by the violence of the state's law acting upon the free interpretative process'. More than alternative methods, proportionality calibrates the violence that the justification of state coercion inflicts on private (non-official) jurisgenerative interpretative processes in constitutional cases. The first three sections show, through an analysis of different constitutional styles which I label Doric, Ionic and Corinthian, how proportionality seeks to place a non-deontological conception of rights within a categorical structure of formal legal analysis. This method aims to synthesize fidelity to form and institutional structure (thesis) with 'fact-sensitivity' to contexts in which specific controversies arise (antithesis). Proportionality positions judges vis-à-vis the parties and the parties in relation to one another differently from other constitutional methods. The next sections distinguish between constitutional perception and reality. While the normative appeal of proportionality can be traced to the perception of its integrative aims, in reality, judicial technique does not entirely live up to those aims. Proportionality succumbs to pressures from the centrifugal forces of universalism and particularism that it seeks to integrate. The final section draws on the works of Kant and Arendt and discusses the implications of an approach to constitutional method such as that reflected in the advent of proportionality for the project of constitutionalism more generally.

This book seeks to clarify how soldiers must apply the proportionality rule during armed conflict, providing concrete examples for how this must be done. The book argues that a refocus of the interpretation of the proportionality rule in international humanitarian law is warranted to enhance the protection of civilians.

"This book seeks to clarify how soldiers must apply the proportionality rule during armed conflict, providing concrete examples for how this must be done. The book argues that a refocus of the interpretation of the proportionality rule in international humanitarian law is warranted to enhance the protection of civilians"--

The present era has seen an unprecedented fragmentation of the public sphere, a breakup of public imperium into separate pieces, not only left in the hands of supranational or subnational authorities, but also entrusted to private actors. With the abandonment of previously undisputed notions of strict legal verticality and the undivided general interest, the separation of powers doctrine as applied in most European systems of administrative law is in need of serious rethinking. Current debates on the judicial control of governmental discretion are still hampered by a discursive language and a legal grammar that tend to draw sharp lines between law and policy, awarding each of the three branches of government its own well-defined domain. Contrary to widespread belief, the trias politica as an ideology of disjointed powers and separate spheres cannot be traced back to Montesquieu's theory of law, but only from its philosophical rebuttal and inaccurate reception in subsequent times. Ironically, a proper analysis of Montesquieu's theory may indicate a viable way forward for a system of review of government actions that attunes to its modern social and institutional context.

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.

Not just since the corona crisis have financial instruments in the form of guarantees, loans, and equity witnessed a growing popularity as a form of state aid vis-à-vis 'regular' grants. This thesis investigated whether the European Commission designs financial instruments and applies their legal framework in accordance with the principles of proportionality and consistency under European Union (EU) law. It found that the Commission does not adhere to the requirements of financial instruments under the case law of the EU Courts in a consistent manner. Specifically, it does not conduct the required balancing exercise of positive and negative effects of instruments, but applies maximum amounts and screening methods as well as a checklist in its compatibility assessment under the proportionality principle. Thus, the thesis recommends the introduction of so-called manifest negative effects, which are applied in other state aid areas and are apt to solve these inconsistencies: They would indicate to stakeholders which potential negative effects could disproportionally distort competition and markets and therefore be incompatible with EU law.