Toward a General Margin of Appreciation Doctrine in International Law?

Three recent International Court of Justice decisions –Oil Platforms, Avena and Wall in the Occupied Palestinian Territory– highlight the uncertain status of the margin of appreciationdoctrine in the Court’s jurisprudence. The purpose ofthis article is to evaluate, in the light of contemporary practiceof other courts, the current status under international lawof the margin of appreciation doctrine, which encourages internationalcourts to exercise restraint and flexibility when reviewingthe decisions of national authorities, and to offer preliminaryguidelines for future application. The article also discussesa variety of policy arguments concerning the legitimacy andeffectiveness of international courts, which can be raised insupport of the development of a general margin of appreciationdoctrine with relation to some categories of international lawnorms governing state conduct, and it examines potential criticism.Eventually, it argues that the same considerations which haveled to the creation of ‘margin of appreciation type’doctrines in the domestic law of many states and in the contextof specific international regimes (for instance, the EuropeanConvention on Human Rights) also support the introduction ofthe doctrine into general international law. The position ofthe ICJ towards the application of the doctrine therefore meritsreconsideration.     

A Development of Modest Proportions: The Application of the Principle of Proportionality in the Targeted Killings Case

The comment critically discusses the application of the principleof proportionality by the Israeli Supreme Court in the TargetedKillings case. While the judgment confirms the customary statusof the principle and its applicability to all Israel DefenseForces (IDF) military operations during armed conflicts, itssubstantive contents remain, as might have been expected, unclear.In particular, the application of the ‘least-injuriousalternative’ subtest with regard to all civilians takinga direct part in hostilities is unsubstantiated and perhapstoo sweeping. However, the reference by the Court to ex anteand ex post review mechanisms to monitor the application ofthe proportionality principle constitutes a positive contributionto its development under international humanitarian law, whichmight also have some implications for criminal prosecutionsof soldiers and commanders involved in unlawful targeted killingoperations.