Towards a more constructive analysis of the identity of special regimes in international law—the case of proportionality

Abstract

This article inquires into the defining features of special regimes in international law. It starts from the assumption that a special regime, rather than simply a collection of rules and principles, is a variety of language. If international legal scholars wish to come to grips with the identity of special regimes in international law, as the author suggests, they should be less concerned with phenomena such as the resolution of normative conflicts and the systemic interpretation of treaties. Instead, they should study carefully the effect on the communication of legal propositions of transferring a piece of language from one particular part of international legal discourse to another. The argument proceeds in three steps. First, as the author argues, proportionality is a term that may be used to express many different meanings. Because of this, utterers may wish to bolster proportionality propositions in language tailored specifically to support an understanding of their intended meanings. Second, the author provides examples of the usage by international lawyers of the term proportionality in discussions of three different areas of regulation, namely state responsibility law, the law of maritime delimitation, and the law of the European Convention on the Protection of Human Rights and Fundamental Freedoms. As the examples go to show, the supporting language used by utterers in communicating proportionality propositions varies greatly with the particular law discussed. Third, the author explains how such differences help in clarifying the different defining features of different areas of regulation.