Pdf the principle of proportionality in international law. The code of hammurabi, a babylonian law code dating from about 1722 bc, incorporated the principle of an eye for an eye, and a tooth for a tooth. The main objective of this study is to present a comparative legal analysis of proportionality. Edited by catherine barnard and steve peers, european union law draws together a range of perspectives from experienced academics, teachers and practitioners to provide a comprehensive introduction to eu law. The principle of proportionality in european law, a.
Your chance to have a onetoone lesson with bestselling language expert. Proportionality in international law michael newton and larry may the first comprehensive treatment of proportionality to combine abstract philosophical and legal analysis with highly emotive contemporary combat cases discusses how proportionality applies to the history of the just war tradition, and emerging human rights issues. However, eu law is guided by the principle of proportionality 20, which allows. Within municipal domestic law it is used to convey the idea that the punishment of an offender should fit the crime. Proportionality and the rule of law edited by grant huscroft. The principle of proportionality ordains that administrative measures must not be drastic than is necessary for attaining the desired result.
Proportionality glossary of summaries eurlex european union. The second section argues that juvenile courts in the united states have been a recognized part of a punishment system for at least a generation. Proportionality is often depicted as an ideal mechanism for balancing opposing interests and thus creating equilibrium between different public goods. The third section first distinguishes between two separate reasons for lower levels of punishment of the immature. How to improve the necessity test of the european court of. Proportionality is a principle in law which covers two distinct although related concepts. While the principle of conferral governs the limits to eu competences, the use of those competences is governed by the principles of subsidiarity and proportionality.
In this regard, the principle of proportionality has become one of the cornerstones of the eu law and provided muchneeded clarification with regards the division of competences. We must bear in mind the question of proportionality. Proportionality legal definition of proportionality. Proportionality is a general principle of eu law, enshrined in article 54 of the treaty on european union teu and reflected elsewhere in the eu treaties, for example in article 36 teu. In plain english it means that the eu should not get involved in matters which do not concern it. Oakes 1986,9 when the supreme court of canada interpreted s. The introduction and development of this principle by the court of justice represents one of the most striking examples of the interaction between the community and national legal systems. Proportionality disambiguation legal definition of. This book compares proportionality with its counterpart in american constitutional law, balancing. The principle of proportionality in the laws of europe. The application of proportionality in the eu differs based on whether eu legal acts or legal acts of the member states are concerned.
The exact nature of the proportionality test that should be applied to eu and hra cases is also subject to confusion. The doctrine of proportionality would call 1 the definition of the legitimate aim, and. Alongside the principles of subsidiarity and proportionality, sits the principle of conferral article 5 of the treaty on european union teu. Although widely discussed, it has not been the subject of a thorough cultural and historical examination until now. For this reason, the union had to explicitly mention specific principles that must be respected by both parties in order to ensure the separation of power. Therefore, although not presenting something entirely new in substance, this chapter lays down the state of the art of proportionality analysis. What does proportionality disambiguation mean in law. Chapter 5 of this book on decisionmaking and competence will apply only. These competences are defined in articles 26 of the treaty on the functioning of the eu. The legal concept of proportionality is recognised one of the general principles of european union. The meaning of proportionality is examined in a number of different contexts, including those of ec law, the domestic law of the member states of the eu and the law of. Proportionality a basic concept of fairness in eu law tells us, as legal rulemakers, when we may act and how we may act, so.
In his book, he discusses a broad range of positive, comparative, theoretical, and normative aspects of proportionality. Under the civil procedure rules, it is the duty of the court to make decisions proportionate to the issues involved. Proportionality in international law hardcover michael. Proportionality definition of proportionality by the free. The principle of proportionality in european law, a comparative study european monographs series set emiliou, nicholas on. This book of essays,the product of a conference held at the university of birmingham in the spring of 1998, contains contributions from a group of extremely distinguished scholars in the fields of both public and private law.
Forming a relationship with other parts or quantities. Newton and may confront the danger that familiarity with the term makes its use formulaic and often flawed. Proportionality in international economic law, of the book the reform of. The author argues that its rigorous application is premised on. Since the uk joined the european union in 1973, judges have been required to apply the proportionality test in cases with a european dimension and increasing pressure has been placed upon the judiciary to incorporate the test into domestic administrative law. Competences not conferred on the eu by the treaties thus remain with eu countries.
Proportionality in international law provides the reader with a unique interdisciplinary approach, offering practitioners and policymakers alike greater clarity over how proportionality should be understood in theory and in practice. Jul 16, 20 my conclusion is that this book by benedikt pirker is a timely and important work which well deserves a wide readership among all those interested in legal theory, in comparative law as well as perhaps closer to home for the readership of this blog, in eu law. The general principle of legal certainty is particularly stringently applied when european union law imposes financial burdens on private parties. The concept of proportionality in the context of rules of court or court rules, was discussed in saunders v williams as follows.
A short history 1 judicial origins 3 emerged in the case law of the court of justice nearly 50 years ago, inspired by german administrative law case 1170 internationale handelsgesellschaft. Proportionality definition of proportionality by the. The principle of proportionality is a central feature of international law regulating modern military engagements. The book then offers an indepth analysis of the application and impact of the principle of proportionality in ec law. Cafaggi, fabrizio and iamiceli, paola, the principles of effectiveness, proportionality and dissuasiveness in the enforcement of eu consumer law. The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation. Proportionality and constitutional culture cambridge. Proportionality principles in american law controlling excessive government actions e. The principle of proportionality and european contract law.
The value of this constant is called the coefficient of proportionality or proportionality constant. Whilst the principle of proportionality indisputably plays a crucial role in the protection of fundamental rights, it is still unclear to what extent it applies to other fields in international law. Proportionality in international law international law. Proportionality in international law is not about equality of death or civilian suffering, or even about firepower returned being equal in sophistication or lethality to firepower received.
This enables judges to decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs. International environmental law development and environment atmospheric protection and climate change biological diversity hazardous activities and substances desertification chapter xv. Supreme court on eu and echr proportionality back to basics. General principles of european union law wikipedia. Jan 17, 2017 the principles of effectiveness, proportionality and dissuasiveness in the enforcement of eu consumer law. Amongst others the european court of justice has recognised fundamental rights, proportionality, legal certainty, equality before the law and. Proportionality is currently the most important constitutional doctrine worldwide, spreading to every democracy apart from the usa.
The principle of proportionality in european law wolters. Principles 5 and 6 on balancing and proportionality are primarily concerned with methodological questions. The impact of a triad on the choice of civil remedies and administrative sanctions january, 2017. The function of the proportionality principle in eu law. This chapter highlights some important aspects of the structure of the proportionality test. It has had a dramatic effects on cost recovery and the conduct of litigation. Under this fundamental principle of eu law, laid down in article 5 of the treaty on european union, the eu acts only within the limits of the competences that eu countries have conferred upon it in the treaties.
European union action shall not exceed what is necessary to achieve the objectives of the treaties. Biblically, the eye for an eye, tooth for tooth principle. The doctrine is applied by both the ecthr and ecj, and so it has infiltrated uk law to a significant extent. To speak of human rights in the twentyfirst century is to speak of proportionality. Yet the legal status of proportionality in international law is far from clear.
Having identified proportionality as the main tool for limiting constitutional rights, aharon barak explores its four components proper purpose, rational connection, necessity and proportionality stricto sensu and discusses the relationships between proportionality and reasonableness and between courts and legislation. The principle of proportionality fundamental principles. In the eu it legitimizes the constitutional claims of eu law in the context of a multilevel legal system. General principles of european union law may be derived from common legal principles in the various eu member states, or general principles found in international law or european union law. It is already clear from this provision that the eu has defined its. In r on the application of lumsdon and others appellants v legal services board respondent 2015 uksc 41, 2015 3 wlr 121, the supreme court lord reed and lord toulson with whom lord neuberger, lady hale and lord clarke agreed delivered a helpful analysis of how the principle of proportionality applies in eu law. The principles of effectiveness, proportionality and. Therefore, the general principle of european union law of proportionality is often.
The proportionality test in uk administrative law a new. The treaty of lisbon clarifies the division of competences between the eu and its member countries. There have been statements of intention but not a full judicial ruling. A product of interpretation of platonic and cicerian theory, the concept was first applied in prussia in the late 18th. Proportionality is a general principle in criminal law used to convey the idea that the severity of the punishment of an offender should fit the seriousness of the crime. Each chapter has been written and updated by an expert in the field to provide students with access to a broad range of ideas while offering a solid foundation in the institutional and. Nonetheless, the clarification that the supreme court give in its summary of the principle of proportionality as it applies in eu law draws upon a wide range of examples from the case law of the court of justice which illustrates how the principle is applied in practice.
Like the principle of subsidiarity, the principle of proportionality regulates the exercise of powers by the european union eu. Frase advance a general theory of proportionality for the american legal system. The concept of proportionality originates in german administrative law. The principle of proportionality in english law constitutional administrative essay. The proportionality principle has become ever more important in european law and elsewhere. Discusses how proportionality applies to the history of the just war tradition, and emerging human rights issues. In the context of fundamental rights, such as the right to the protection of personal data, proportionality is key.
Proportionality is intimately linked to the overarching concepts of selfdefense, lawful force, and the controlled application of violence. Definition of proportionality disambiguation in the legal dictionary by free online english dictionary and encyclopedia. Therefore, in the light of daly and alconbury the current position of proportionality in domestic common law is confused. The book provides a comprehensive overview of proportionality in global constitutional law, for the benefit of scholars of constitutional law worldwide and of constitutional lawyers and judges involved in the practical. In r daly v secretary of state for the home department, lord steyn adopted a threelimb definition of proportionality. The career of the principle has attracted considerable attention from legal practitioners, legal theorists and political scientists alike, but the debate so far has been quite fragmented. It varies between echr and eu law, and the tests of eu proportionality then vary. The principle of proportionality in eu law glawcal. In the context of fundamental rights, such as the right to the protection of personal data, proportionality is key for any limitation on these rights. Iaa risk book chapter 16proportionality, materiality, etc. The doctrine of proportionality in its present form is of european origin. Meaning of proportionality disambiguation as a legal term. The principle of proportionality prohibits attacks against military objectives which are expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
Remember, the principle of proportionality applies in all fields of eu law. Proportionality is a legal principle that allows or requires balancing between competing values. The principle of proportionality is the idea that an action should not be more severe. Proportionality has been described as meaning, in plain english, you must not use a steam hammer to crack a nut, if a nutcracker would do. Proportionality is a pervasive concept in modern law and philosophy. Proportionality is a general principle of eu law, enshrined in article 5 4 of the treaty on european union teu and reflected elsewhere in the eu treaties, for example in article 3 6 teu. Proportionality has been received into the constitutional doctrine of courts in continental europe, the united kingdom, canada, new zealand, israel, south africa, and the united states, as well as the jurisprudence of treatybased legal systems such as the european convention on human rights.
The function of proportionality analysis in european law brill. The function of proportionality analysis in european law. Psychology definition of principle of proportionality. In mathematics, two varying quantities are said to be in a relation of proportionality, if they are multiplicatively connected to a constant, that is, when either their ratio or their product yields a constant. The general principles of european union law are general principles of law which are applied. Proportionality in international law michael newton and larry may. Proportionality a german approach by yutaka araitakahashi this article briefly discusses the nature and character of the principle of proportionality in relation to administrative discretion in german public law. How to improve the necessity test of the european court of human rights. Proportionality in international economic law, of the book the reform of international economic governance. The principle of proportionality in the case law of the european court of human rights. The first comprehensive treatment of proportionality to combine abstract philosophical and legal analysis with highly emotive contemporary combat cases. Cambridge core jurisprudence proportionality by aharon barak.
As a matter of fact, article 5 teu stipulates an obligation for the eu to respect the principle of proportionality when it exercises its competence. Pnina alonshenker and guy davidov labour law research. A relatively simple judicial philosophy that states the punishment should fit the crime. The impact of a triad on the choice of civil remedies and administrative sanctions. The principle of proportionality and subsidiarity is extremely important because it underlies everything the european union does in areas where it does not have the right of exclusive competence. In the relationship between the principle of proportionality and european contract law two dimensions can be distinguished. These are relevant as a basis on which the more detailed analyses in this book are built upon. Proportionality in international law newton, michael, may, larry on. The application of proportionality in the eu differs based on whether legal acts of. Law of the sea united nations convention on the law of the sea and related instruments maritime disputes chapter xiv. The principle of proportionality and the concept of margin of. Proportionality definition and meaning collins english. It restricts authorities in the exercise of their powers by requiring them to strike a balance between the means used and the intended aim. The concept of proportionality is used as a criterion of fairness and justice in statutory interpretation processes, especially in constitutional law, as a logical method to assist in discerning the correct balance between.
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