Proportionality as a legal concept

The legal(isitic) concept of proportionality does not exist in a vacuum, for it is a term for the relationship between means and objectives

There is an old line shared by English lawyers that, for the High Court, domestic law is a matter of law, foreign law is a matter of fact (on which the court may take expert evidence), and international law is a matter of fiction.

And for those who take the (not entirely unreasonable) view that law needs to be capable of enforcement so as to be termed “law”, the nature of international law is problematic.

(Here we mean what is called “public international law” - the law which in general applies to state and international actors, rather than “private international law” which is about cross-border transactions and other private law relationships.)

One can say [A] or [B] is in breach of international law, but unless there is a court or tribunal of competent jurisdiction available and capable of determining the question, statements about international law can just seem like many assertions and expressions of opinion.

But, even if there is no likelihood of any case ever reaching a court, states often say they have regard to international law in what they do.

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The current news from Israel and Gaza raises the question of compliance with international law.

Many have strong views on what is happening in Israel and Gaza.

The best explainer I have come across (via David Anderson on X/Twitter) on the application of international law to what is happening in Israel and Gaza is this one.

And you will see that the key concept here is one of that most tricky of all legal notions, proportionality.

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The only point this general legal blog can add is that the legal(istic) concept of proportionality does not exist in a vacuum - a thing is not, at law, proportionate or disproportionate in and of itself, for the concept describes a relationship between things.

The concept of proportionality makes legal sense (if it makes any legal sense at all) when it is applied to the relationship between means and an objective.

The legal concept of proportionality will then provide a way of assessing whether particular means go further than necessary in meeting particular objectives.

Of course, this tells you nothing about the merits of a proposed action and of the legitimacy of an objective.

And so it is a legal concept, in public international law and other areas of law, which can raise questions rather than answer them.

But if one has a view on whether what any state actor is doing is proportionate or disproportionate under international law then one also has to be as precise as possible as to the actual means and specific objectives to which the concept is being applied.

And some will say that some means may never be proportionate to any legitimate objective.