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In response to the Russian invasion of Ukraine, the European Union (EU) has adopted a vast range of unilateral sanctions (or 'restrictive measures') targeting almost every facet of the Russian economy. These events mark a turning point in the EU's approach to sanctions. In a brief timespan, the EU's sanctions practice has expanded significantly in its scope, reach, and hard-line political discourse, aligning more closely with the assertive stance of the United States. The collateral effects of these sanctions have reverberated globally, raising questions about their proportionality. This article explores the legal boundaries framing EU sanctions, examining the principle of proportionality across EU law, World Trade Organization (WTO) law, and customary rules on State responsibility. Through a detailed analysis of the various proportionality standards present in these legal regimes, it seeks to determine the adequacy of existing legal safeguards against a potential misuse of sanctions and addresses key challenges in regulating EU sanctions within the framework of proportionality. [ABSTRACT FROM AUTHOR]

It is inherent to the fundamental right to property that far from being absolute, the owners' rights may be limited in the general interest. As exemplified recently by unprecedented closures of restaurants and other businesses due to the COVID-19 pandemic, also large-scale and far-reaching limitations are broadly deemed justified. The outer boundary of these limitations appears to be the essence of the right, which may not be impinged upon. Yet, both this very term and its scope are fiercely contested. This article, thus, revisits the "essence" of a fundamental right in the context of the European Convention on Human Rights. Drawing on the example of the right to property under Art 1 of Protocol 1 (P1-1) to the ECHR, this contribution expounds the prevailing approaches to the essence of fundamental rights and highlights the discrepancies between the formally adopted absolute approach to the essence as a purportedly inviolable core and the relative understanding of this concept which sees it as part of the fair-balance test. As the ECtHR case law makes room for virtually any interference with P1-1 including expropriation without any compensation, it will be argued that an untouchable or pre-established essence is not a concept attributable to the right to property under the Convention. It is maintained, however, that the limited scope of the essence is consistent with the underlying principles of the Convention as well as the intrinsic social function of private property. [ABSTRACT FROM AUTHOR]

Developments in machine learning prompt questions about algorithmic decision-support systems (DSS) in warfare. This article explores how the use of these technologies impact practices of legal reasoning in military targeting. International Humanitarian Law (IHL) requires assessment of the proportionality of attacks, namely whether the expected incidental harm to civilians and civilian objects is excessive compared to the anticipated military advantage. Situating human agency in this practice of legal reasoning, this article considers whether the interaction between commanders (and the teams that support them) and algorithmic DSS for proportionality assessments alter this practice and displace the exercise of human agency. As DSS that purport to provide recommendations on proportionality generate output in a manner substantively different to proportionality assessments, these systems are not fit for purpose. Moreover, legal reasoning may be shaped by DSS that provide intelligence information due to the limits of reliability, biases and opacity characteristic of machine learning. [ABSTRACT FROM AUTHOR]

Indemnification of incurred damages does not depend on its advance securement, although the law provides the possibility of securing compensation for potential losses in advance. The institution of guaranteeing compensation for anticipated losses is one of the tools for protecting the defendant's rights in the procedural guarantees system. Procedural law doctrine and practice sometimes shift the emphasis to already incurred damages and, thus, call it the institution of compensation for damages caused by an unjustified provisional remedy. The law of civil procedure defines the rule for securing the anticipated losses and not already existing or proven damage. The misperception of the concepts of loss and damage causes the wrong approach to the essence of the mentioned institution. The criteria and rules for securing compensation for anticipated losses and incurred damages require different approaches. In relation to the incurred or expected damages, it would be more appropriate to talk not only about the compensation of damages caused to the defendant through an unjustified provisional remedy but also through the dismissed claimant's claim. Considering all that, securing compensation for anticipated losses should include not only expected losses incurred because of unjustified provisional remedy but also as a result of unjustified/dismissed claims. The defendant may incur various expenses or lose income due to an unjustified provisional remedy or a claim. Attention should be devoted to compensating for the damages caused by an unjustified claim to the extent that, firstly, the measure of provisional remedy is based on alleged facts, and secondly, it is only one of the procedural actions directed against the defendant. The provisional remedy itself and securing compensation for the anticipated losses to the defendant form one of the procedural guarantees of effectively using the right to a fair trial and, accordingly, it is a part of the area protected by Article 6 of the European Convention on Human Rights and the first Clause of Article 31 of the Constitution of Georgia. Based on the principle of equality before the law and the court, as well as the principle of the equality of the parties in civil proceedings, the claimant also has the right to claim compensation for damages from everyone who, through illicit actions, prevented the enforcement of provisional remedy issued by the court. [ABSTRACT FROM AUTHOR]

After comparing the preponderance and proportional approaches to adjudication by considering some cases susceptible to being decided in either way, the work develops an in-depth discussion of Lavie's stepwise approach, and points out some major concerns that it poses, namely concerns about conceptual resources, methodology and matters of principle. As to conceptual resources, the work addresses and clarifies what Lavie means by 'probability' and 'gradually increasing steps'; on methodology, it observes that reliance on Beckerian deterrence in this context is not convincing due to its reductionist motivational focus, which has also been challenged empirically by behavioural studies, and to its dismissal of the institutional function of trials; on matters of principle, finally, the work claims that the fundamental changes in the jural positions of claimant and defendant raise very high concerns in terms of the right to a fair trial. [ABSTRACT FROM AUTHOR]

This article outlines a model of proportionality analysis for the adjudication of positive constitutional economic and social rights. This model is the key for answering three questions: (i) First, to what extent constitutional courts hold the power to determine the substantive content of positive constitutional economic and social rights when the right- holders claim that their addressees have violated those rights by failing to comply with what they require? (ii) Second, how constitutional courts should ground the determination of that substantive content? (iii) Third, how constitutional courts should choose appropriate remedies when they have established a violation of one of those rights? Three distinctions are the basis of the above-mentioned proportionality model, namely, the differences: (i) between empirical and normative aspects of the adjudication of positive constitutional economic and social rights; (ii) between the level and mode of fulfillment of those rights; and (iii) between the competence of political authorities and courts to determine the appropriate level and mode of satisfaction. Using some elements of Wittgenstein methodology of family resemblance, this article adjusts the structure of proportionality analysis, which courts apply to adjudicate freedoms, and incorporates elements drawn from those three distinctions. The outcome is an analysis suitable for the specificities of the adjudication of positive economic and social rights. [ABSTRACT FROM AUTHOR]

This article sketches a case for the importance of allowing and protecting civil disobedience in a democratic society. There are weighty reasons for non-enforcement of certain laws under certain circumstances, which undermines the legalistic claim that justice requires police to faithfully (try to) enforce all laws at all times. Furthermore, questions about how the police should respond to disobedient demonstrations are not settled by popular theoretical treatments of civil disobedience. Police responses to disobedient demonstrations should be guided by a principle of proportionality. This proportionality requirement is more stringent in cases of self-generated needs for self-defense. Common police tactics like "skirmish lines" predictably escalate interactions and create a need for further defensive force, thereby violating the proportionality requirement. [ABSTRACT FROM AUTHOR]

I argue that a form of indirect utilitarianism can provide a sufficiently plausible justification for three crucial elements of the ECtHR's doctrine of proportionality to be taken seriously as an account of this doctrine. I show how indirect utilitarianism can account for the relation between moral rights and Convention rights, the resistance to trade-offs that is a particular property of Convention rights and the nature of the public interest against which rights must be balanced. I argue that the indirect utilitarian account provides a coherent interpretation of the Court's jurisprudence concerning: (i) aims that express moralistic external preferences and their legitimacy; (ii) balancing and the doctrine of the 'essence of rights'; and (iii) the Court's reasoning in Dickson v UK. I conclude by exploring the further work needed to establish more firmly this account's plausibility as an interpretation of the Court's doctrine of proportionality as a whole. [ABSTRACT FROM AUTHOR]

The dual use of satellite services raises the question about the legitimacy of the counter actions against their functionality during the armed conflict. This article focused on the examination of the content of the key principles of international humanitarian law, i.e. distinction and proportionality, concerning their application to the space activity. In this context, the criterions of pre and post evaluation of input of space services to the military operation were analysed. The risk of creation of a cloud of space debris because of a breach of humanitarian law was also observed. As a result, the suggestion to develop and ratify Additional Protocol IV that would distinguish what constitutes a civilian object from a military objective and determine the scope and extent of damage proportional to the attack, is argued as a means that able to save outer space resource and space services during the space and cyber wars. [ABSTRACT FROM AUTHOR]

The article examines methods of distinguishing positive and negative duties within the provisions of the European Convention of Human Rights as applied by the European Court of Human Rights. It highlights problems with tying positive duties to acts and negative duties to omissions, and sets out a supplemental delineation method when those problems lead to systematic classification errors: duties sort as positive if they have the capacity for multiple fulfilment options and negative if they only allow one fulfilment option. These delineation criteria allow for a more consistent reconstruction of case law and point to a causal mechanism for alleged asymmetries in proportionality review and margins of appreciation. Lastly, there are revisionary implications for human rights scholarship. Judgments have been sorted as positive rights cases because they feature a requirement that states commit to legislative amendment, yet performative acts of amendment may be continuous with underlying negative duties. [ABSTRACT FROM AUTHOR]

Philosophers of criminal punishment disagree about whether infliction of punishment for negligence can be morally justified. One contending view holds that it cannot be because punishment requires culpability and culpability requires, at a minimum, advertence to the facts that make one's conduct wrongful. Larry Alexander and Kim Ferzan are prominent champions of this position. This essay challenges that view and their arguments for it. Invoking a conceptual distinction between an agent's being blameworthy for an act and their deserving punishment (or suffering) for that act, it explains that an agent can be blameworthy for negligent conduct, and thus liable to reasonable blaming practices, even if negligence is not culpable, hence not sufficient to ground negative desert. Turning from conceptual inquiry to substantive questions of political morality, it then argues that a faulty actor's lack of culpability does not render them immune from just punishment, but does significantly limit the severity of punishment that may be inflicted, for punishment should not be disproportionately severe relative to an agent's culpability in relation to wrongdoing. [ABSTRACT FROM AUTHOR]

Electoral systems vary in terms of the choice and influence they offer voters. Beyond selecting between parties, preferential systems allow for choices within parties. More proportional systems make it likely that influence over who determines the assembly's majority will be distributed across relatively more voters. In response to systems that limit choice and influence, we hypothesize that voters will cast more blank, null, or spoiled ballots on purpose. We use a regression discontinuity opportunity in French municipal elections to test this hypothesis. An exogenously chosen and arbitrary cutpoint is used to determine the electoral rules municipalities use to select their assemblies. We find support for our reasoning—systems that do not allow intraparty preference votes and that lead to disproportional outcomes provoke vote spoilage. Rates of vote spoilage are frequently sufficient to change control over the assembly if those votes had instead been cast validly for the second-place party. [ABSTRACT FROM AUTHOR]

This commentary reviews Mr Omid T's legal challenge for a declaration of incompatibility under section 4 of the Human Rights Act 1998. Omid argued that section 2(1) of the Suicide Act 1961 is incompatible with his Articles 2 and 8 rights under the European Convention on Human Rights (ECHR). The Omid litigation considers whether it is appropriate and necessary that courts should hear primary oral evidence with cross-examination in determining the ethical, moral, and social policy issues that underlie the assessment of whether the Suicide Act is a disproportionate restriction on Omid's rights. The question of what type of evidence would need to be available to courts to determine section 2(1)'s proportionality is an important question left unresolved by Nicklinson v Ministry of Justice. The Omid litigation concludes it is inappropriate and unnecessary that courts should hear oral evidence and permit cross-examination in determining section 2(1)'s proportionality. The commentary analyses the reasoning in the Omid litigation regarding why it is inappropriate to hear oral evidence with cross-examination in determining section 2(1)'s proportionality. The commentary then argues a persuasive case can be made for the appropriateness of oral evidence and cross-examination in assisted suicide proportionality cases. [ABSTRACT FROM AUTHOR]

Introduction to The Problem: The use of criminal law to limit the freedom of citizens' civil rights must be done with caution since it intimately links to the infringement of such rights. Purpose/Objective Study: The present study aims to explore the criteria of criminalization based on the principle of limitations of human rights. Design/Methodology/Approach: This study employed doctrinal legal research using both conceptual and statutory approaches Findings: In the policy formation of illegal acts, the legislator frequently formulates rights constraints. The criminalization criteria specified in the human rights limitation can be used to apply this restriction. Restriction-containing offenses determined by the legislature must be by law, legitimate aim, and necessity in a democratic society. A consistent model of criteria for democratic society demands does not exist. This last criterion is linked to both the proportionality principle in human rights and the concept of criminal law as a last resort. Paper Type: Research Article [ABSTRACT FROM AUTHOR]

Philosophers of criminal punishment widely agree that criminal punishment should be "proportional" to the "seriousness" of the offense. But this apparent consensus is only superficial, masking significant dissensus below the surface. Proposed proportionality principles differ on several distinct dimensions, including: (1) regarding which offense or offender properties determine offense "seriousness" and thus constitute a proportionality relatum; (2) regarding whether punishment is objectionably disproportionate only when excessively severe, or also when excessively lenient; and (3) regarding whether the principle can deliver absolute ("cardinal") judgments, or only comparative ("ordinal") ones. This essay proposes that these differences cannot be successfully adjudicated, and one candidate proportionality principle preferred over its rivals, in the abstract; a proportionality principle only makes sense as an integrated part of a more complete justificatory theory of criminal punishment. It then sketches a proportionality principle that best fits the responsibility-constrained pluralist theories of criminal punishment that currently predominate. The proportionality principle it favors provides that punishments should not be disproportionately severe, in noncomparative terms, relative to an agent's culpability in relation to their wrongdoing. [ABSTRACT FROM AUTHOR]

Many philosophers have raised difficulties for any attempt to proportion punishment severity to crime seriousness. One reason for this may be that offering a full theory of proportionality is simply too ambitious. I suggest a more modest project: setting a lower bound on proportionate punishment. That is, I suggest a metric to measure when punishment is not disproportionately severe. I claim that punishment is not disproportionately severe if it imposes costs on a criminal wrongdoer which are no greater than the costs which they intentionally caused to others. I flesh out the implications of this Lower bound by discussing how to measure the costs of crime. Methodologically, I claim that different costs should be compared by considering preferences. Substantively, I claim that many proportionality judgements undercount the costs of crime by focusing only on the marginal and not the average cost. I suggest that we may hold defendants causally responsible for their contribution to the costs of that type of crime. [ABSTRACT FROM AUTHOR]

What is the proportionate punishment for conduct that is neither harmful nor wrongful? A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent. Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor. Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on. But practicing investment advising without registering is a crime for which one may be convicted and punished. When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different. But in what way? One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum. Some offenses, like murder, are wrongs "in themselves" ("in se") whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited ("prohibitum"). The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses. This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront. [ABSTRACT FROM AUTHOR]

The aim of the paper is to investigate how retributivists should respond to the apparent tension between moral desert and proportionality in punishment. I argue that rather than attempting to show that the term 'proportionate punishment' refers to whatever penal treatment the offender morally deserves, retributivists should maintain two things: first, that a punishment is proportionate when it is commensurate to the seriousness of the crime; second, that offenders morally deserve proportionate punishments. This view requires adopting a local theory of desert as opposed to a holistic one. In the second part of the paper, I argue that there are indeed good reasons to adopt a local theory of desert. Once retributivism is seen through the lens of local desert, there is no obvious mistake in saying that offenders morally deserve punishments that are proportionate to the seriousness of their crimes. [ABSTRACT FROM AUTHOR]

Criminal theorists struggle to account for the "totality principle"—the idea that no matter how many small crimes you commit, your punishment should not exceed that for a more serious offense. Andrew Ashworth, for instance, argues that "overall proportionality" should be preserved but that this is a "pragmatic" solution. This paper argues that a retributivist can accept overall proportionality without abandoning her retributivism. I offer two lines of defense. The first is to show that the unit that we are aggregating may be more complex than first appears. The second relies on insights from the headaches versus lives literature, and how we should rescue one person dying before preventing one million people from headaches. The harms that we impose on others, and the harms that defendants suffer because of punishment, do not exist on one single scale. Hence, the true problem, I maintain, is not how culpability functions, but how our particular mode of punishment does. When we only have one primary mechanism to punish (particularly once we start aggregating)—put people in prison—then aggregating offenses appears as though it must quickly lead to numerous acts of littering being punished more than arson. With a more nuanced punitive response, we can punish minor offenses every time without surpassing the kinds of punishment we impose on more significant offenses. [ABSTRACT FROM AUTHOR]

This article details the degree to which the ideal of punishment proportional to desert forces changes in how we think of deontological morality. More specifically, the proportionality ideal forces us to abandon the simple, text-like view of deontological moral norms, and it forces us to acknowledge that those norms are not uniformly categorical in their force. [ABSTRACT FROM AUTHOR]

Theorists treat liberty as a great equalizer. We can't easily distribute equal welfare, but we can purport to distribute equal liberty. In fact, however, nothing about "equal liberty" is meaningfully equal. To demonstrate, I turn not to familiar cases of distributing positive goods but to the distribution of a negative good, namely carceral punishment. Many theorists believe we should impose proportional punishment by depriving offenders of liberty in proportion to their blameworthiness. In this manner, equally blameworthy offenders are said to receive equal punishment when incarcerated for the same period of time. Equal periods of incarceration do not yield equal punishments, however, because liberty cannot serve as the great equalizer theorists hope for. Pretending it can prevents us from justifying the full harms of punishment or leads to such counterintuitive results that it makes proportional punishment an unattractive goal. [ABSTRACT FROM AUTHOR]

In this paper I argue that punishment should be proportional to desert; that desert turns solely on culpability and not on results: that culpability is a function of what the actor perceives are the risks of his act to others' interests and the reasons he perceives that might justify, excuse, or aggravate taking those risks; that because culpability is a complex function, ordinally ranking acts in terms of culpability is quite difficult; that converting the ordinal ranking into cardinal measures of deserved punishment must perforce be controversial; and that deserved punishment, which is deserved suffering, must somehow deal with the fact that the actor may have already suffered undeservedly (or may have benefitted undeservedly). [ABSTRACT FROM AUTHOR]

Efforts to apply the principle of proportionality to criminal sentences are notoriously problematic. But even though they are daunting, only a few legal philosophers believe we should give up trying to do so. Perhaps we can make progress overcoming some of the many legal difficulties by attending to how the principle is applied in non-legal contexts—that is, in contexts I call personal life. Proportionality, I believe, is an attractive principle in penal sentencing because it is an attractive principle in ordinary situations in which persons are sanctioned for wrongdoing. I briefly mention several familiar non-legal contexts in which sanctions have recently been imposed on celebrities or public figures for real or perceived wrongdoing. My hope is that sensitivity to how the principle of proportionality is interpreted in these contexts might facilitate efforts to apply this principle to sentencing domains. At first glance, proportionality as applied in non-legal contexts appears to differ from its penal analogue. I describe some of these alleged differences. Among the foremost is that judgments of proportionality in personal life often respond to how the transgressor has behaved apart from the particular incident that has attracted media attention. Penal sanctions, by contrast, are said to be imposed only for the particular crime(s) charged. I argue that this difference is more apparent than real. I conclude that we can reach a few modest insights about how to apply the principle of proportionality in criminal sentencing by attending to its counterpart in personal life. [ABSTRACT FROM AUTHOR]