Utfordre for å forbedre, eller for å rive ned?

Hvordan bør norske og andre lands myndigheter forholde seg til de internasjonale menneskerettighetene de er uenige i? Partiene bør avklare om de vil foreslå endringer som kan undergrave den skjøre oppslutningen om menneskerettighetene i Norge og i resten av Europa? Og er det en beklagelig ulempe for å oppnå viktige mål for Norge – i såfall hvilke? Eller er det partier som mener at slike internasjonale ordninger ikke virker, eller at menneskerettighetsvern i resten av Europa eller i verden ikke er noe vi skal ha noe ansvar for? med Geir Ulfstein, Klassekampen 9. september 2017 [WEB].

Democracy and Regional Human Rights Courts

In ICON – International Journal of Constitutional Law 15 (2). The regional human rights courts in Europe and the Americas have a complex relationship with democracy. On the one hand, they were established to protect democracy (and the fundamental rights on which democracy depends) and to serve as “alarm bells” to facilitate detection and early intervention if tyranny nevertheless threatened. On the other hand, however, specific procedures and practices of these courts, or certain forms of adjudicative activity, may threaten or undermine stable democratic self-governance. History has shown that the work of the European and Inter-American courts has, at times, both augmented and challenged democracy in their respective member jurisdictions. This symposium addresses certain aspects of this tension…. [D0I/LINK] [WEB].

Truer menneskerettighetene demokratiet?

Den europeiske menneskerettighetsdomstolen skaper ikke inflasjon av menneskerettigheter. Professor Ole Gjems-Onstads kritikk av menneskerettighetsdomstolen er dels skivebom, dels for sneversynt, og dels tuftet på et for magert demokratiideal… Andreas Føllesdal og Geir Ulfstein, Dagens Næringsliv. 13. juli 2017 [LINK] [WEB].

“Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights?”

“Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights?” in International journal of constitutional law 15 (2): 359-371. What might the Inter-American Court of Human Rights (IACtHR) gain from a ‘judicial dialogue’ with the European Court of Human Rights (ECtHR) in the form of borrowing the ECtHR’s margin of appreciation doctrine? Arguably, a favorable interpretation of the vague margin of appreciation doctrine allows the ECtHR to provide both human rights protection and deference to domestic democratic decision-making. This may guide the IACtHR’s attempt to respect both the American Convention on Human Rights and its sovereign creators. In particular, the ECtHR’s Doctrine may illustrate how these regional courts can interact with states that violate the respective conventions after less than fully democratic processes—in the eyes of the courts. The same margin of appreciation doctrine may justify more or less sovereignty-invading stances by both the IACtHR and by the ECtHR, depending on to the different levels of entrenchment of a democratic culture and rule of law in the state of concern, and depending on the actual deliberations carried out in the particular case. [D0I/LINK] [SSRN][WEB].


Tracking Justice Democratically

Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with – and even a recommended component of – an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy making. Section 1 offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of concern – in particular the European Court of Human Rights (ECtHR). Section 2 develops some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted in section 3. Section 4 considers the case(s) for international judicial review, arguing that such review helps secure those premises and scope conditions. The section goes on to consider the scope such review should have – and some objections to such an account. “Tracking Justice Democratically.” Social Epistemology 2017 (3): 324-339. [D0I/LINK] [SSRN][WEB].


The margin of appreciation in Europe and beyond

with Nino Tsereteli, special issue of The International Journal of Human Rights 2016 20 (8): 1055-1057. — Is the margin of appreciation doctrine of the European Court of Human Rights (ECtHR) a promising model of deference by a regional human rights court towards democratic states? Or does this doctrine amount to an abdication by such courts from their proper tasks of protecting human rights against violations by states? This special section contributes to the ongoing scholarly debate about the margin of appreciation doctrine, originally developed by the ECtHR. It also explores the emergence of similar doctrines of deference in human rights adjudication outside Europe. The four articles also raise issues relevant for a broader debate about legitimacy and effectiveness of international courts. The authors cover a number of courts, well-established as well as relatively young ones, operating in different legal and political contexts. It allows reflecting on common as well as courtspecific reasons for exercising or avoiding deference. [D0I/LINK]

Implications of Contested Multilateralism for Global Constitutionalism

What are the implications of Morse and Keohane’s claims about ‘contested multilateralism’ (CM) – competitive regime creation – for global constitutionalism? This article, in Global Constitutionalism 5 (3): 297-308, first specifies some salient features of ‘Global Constitutionalism’ and of ‘constitutional pluralism’ – before turning to implications. The focus is on CM regarded as a mode of constitutional change, considering what to make of such a form of ‘extra-constitutional’ procedure. Challenges by CM to the stability of international law are argued to be overdrawn. Of greater concern is that CM lends itself to piecemeal adjustments rather than reforms with an eye to the systemic effects. However, these worries must be tempered by the non-ideal nature of the present legal structure which should make us wary of imposing normative standards drawn from settings where institutions are fully just and generally complied with. [D0I/LINK] [WEB]