Revisiting Proportionality in International and European Law Interests and Interest-Holders

Half Title
Title Page
Copyright Page
Contents
Notes on Contributors
Chapter 1 Introduction
Chapter 2 Revisiting Proportionality in Internal Market Law: Looking at the Unnamed Actors in the cjeu’s Reasoning
1 Introduction
2 The Limits of the Formal and Institutional Approach of Proportionality
3 The Proportionality Assessment as a Social Narrative
4 Looking under the Invisibility Cloak: The Part of Archetypal Figures in the Proportionality Control
5 Conclusion
Chapter 3 Federal Proportionality Review in EU Law: Whose Rights Are They Anyway?
1 Introduction
2 The Principle of Proportionality in EU Law
2.1 Protecting Liberal Values
2.2 Proportionality as a Safeguard of Federalism?
3 The Political Safeguards of Federalism
4 The Role of Individuals in Articulating “Member States’ Rights”
5 Recent Developments in EU Federalism: Whose Rights Are Being Articulated, Identified and Balanced?
5.1 Federal Proportionality and the Tobacco Products Litigation
5.2 A Novel Approach to Subsidiarity Review
5.3 Invoking the National Identity of the Member States in Federalism Disputes
6 Conclusion
Chapter 4 Proportionality and the Human Rights of Companies under the echr—Whose Interests Are at Stake?
1 Introduction
2 The Company as Legal Person
3 The Rights of Companies under the echr
3.1 The Right to Property of Companies
3.2 The Right to Free Expression
3.2 The Right to Respect for the Home
4 Conclusion
Chapter 5 Proportionality and Human Rights Protection in International Investment Arbitration: What’s Left Hanging in the Balance?
1 Introduction
2 On Balancing in International Investment Arbitration: Is a ‘Balance’ Possible?
3 Rights-friendly iia Clauses: On the Dubious Desirability of ‘Guided’ Proportionality
4 Conclusion
Chapter 6 Do the Interests of Individuals Count before the World Court?
1 Introduction
2 The World Court’s Seminal Rulings on the Position of the Individual in the International Legal System
2.1 The Permanent Court of International Justice
2.1.1 Jurisdiction of the Courts of Danzig
2.2 The International Court of Justice
2.2.1 1949: Reparations for Injuries
2.2.2 2001: LaGrand
3 The icj’s Rulings Pertaining to Human Rights
4 Conclusion
Chapter 7 The Discourse of Proportionality and the Use of Force: International Law and the Power of Definition
1 Introduction
2 The Turn to Proportionality in Jus ad Bellum
3 Assessing Proportionality in Practice
4 Problems with Proportionality
4.1 The Limits of Formalism
4.2 International Legal Pluralism
5 Narratives of Proportionality
6 Conclusion
Chapter 8 Who Is Targeted by the Council’s Sanctions? The UN Security Council and the Principle of Proportionality
1 Introduction
2 Proportionality in the Normative and Policy Framework Regulating UN Sanctions
3 Proportionality in Sanctions Practice
3.1 Addressing Illegal Exploitation of Natural Resources
3.2 Countering the Proliferation of Nuclear Weapons
4 Reassessing Proportionality in Sanctions Practice
Chapter 9 The Proportionality of Unilateral ‘Targeted’ Sanctions: Whose Interests Should Count?
1 Introduction
2 The Quest for Proportionate Sanctions
2.1 From Comprehensive to Targeted Sanctions
2.2 Problematic ‘Targeted’ Sectoral Sanctions
3 The Proportionality Principle’s Current Application to Unilateral Targeted Sanctions under International Law
3.1 Retorsions
3.2 Countermeasures
3.3 Collective Countermeasures
4 Moving Forward: Whose Interests Should Count?
Chapter 10 Proportionality and International Legal Pragmatics
1 Introduction
2 Good Faith Is a Principle of International Legal Pragmatics
3 Proportionality Is a Special Case of Good Faith
4 A Theory of the Function of Proportionality
Chapter 11 Balancing Interpretative Arguments in International Law—A Linguistic Appraisal
1 Introduction
2 Means of Interpretation, Interpretative Arguments and Balancing
3 Balancing and Assigning Weight to Interpretative Arguments—The Contribution of Linguistics
3.1 The Semantics-Pragmatics Distinction
3.2 Dictionaries and Corpus Linguistics
4 Conclusion
Chapter 12 The Role of Proportionality in International Investment Law and Arbitration: A System-Specific Perspective
1 Introduction
2 Proportionality Tests in International Law: The Example of Human Rights Courts
3 The Role of Proportionality in International Investment Law
3.1 Investment Law as a Naturally Imbalanced System
3.2 A Dispersed Regime
4 Proportionality Assessments in the Practice of International Investment Law
5 Conclusions
Index