Constitutionalization, Not Democratization!

“Constitutionalization, Not Democratization: How to Assess the Legitimacy of International Courts”. In The Legitimacy of International Courts . N. Grossman, H. Cohen, A. Follesdal & G. Ulfstein. Cambridge, Cambridge University Press: 307-337.

Several authors – including Armin von Bogdandy and Ingo Venzke, Allan Buchanan and Robert Keohane, Gráinne De Búrca, and Nienke Grossman address the legitimacy deficits of international courts (ICs). They propose the ‘democratization’ of ICs, by which they often mean to increase their transparency, accountability or participation by various parties. There are other, better reasons to value transparency, accountability and participation concerning ICs than as building blocks of democracy, namely insofar as they contribute to valuable forms of constitutionalization of the global basic structure. Moreover, they can be valuable even when such changes do not advance democracy of the kind worth having. We should not assume that democracy is the touchstone for all legitimate modes of governance. TWe should distinguish between democratic institutions of decision-making, the normative principles that justify such institutions, and important features of such institutions that contribute to their justification, such as accountability, participation and transparency. It is only calls for the first of these – formalized institutions of decision-making – which should be considered democratication proper. [D0I/LINK] [SSRN] [WEB].

“Theories of Human Rights: Political or Orthodox – Why It Matters”

“Theories of Human Rights: Political or Orthodox – Why It Matters”. in Moral and Political Conceptions of Human Rights: Implications for Theory and Practice . R. Maliks &J. S. Karlsson. Cambridge, Cambridge University Press 2017: 77-96.
One important contribution by a philosophical theory of international legal human rights [ILHR] is to provide normative perspectives and standards to assess the current international human rights regimes. .. There is currently a discussion about how two families of theories may best be used to develop such a philosophical theory of ILHR. ..”Orthodox” philosophical accounts .. tend to hold that behind the human rights movement generally – including ILHR – there is a unitary, cogent notion of moral human rights. .. “Political” theories pursue another aim and justificatory strategy. They aspire to systematize the existing international legal human rights practice, and seek to end with a theory with sufficient critical standards, – without drawing on a prior concept of a human right. … The aim of this article is primarily to alleviate some of the alleged conflicts, in particular to defend at least one Political theory against charges that it is unduly constrained to actual consensus on premises in defense of ILHR, that it is too closely linked to the current state system to match the universal ambitions of human rights, and that it seeks to avoid normative premises. [D0I/LINK] [SSRN] [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].


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]

Subsidiarity and International Human Rights Courts: Respecting Self Governance and Protecting Human Rights – or Neither?

“Subsidiarity and International Human Rights Courts: Respecting Self Governance and Protecting Human Rights – or Neither?” in Law and Contemporary Problems 79 (2): 147-163. Several regional and international courts (ICs) and treaty bodies are empowered to review whether a state’s legislation and policies are consistent with the human-rights conventions it has signed. This article considers how subsidiarity may be brought to bear on the challenges the ECtHR and the IACtHR face. The article focuses on two politically salient, normative questions. First, should states— even well-functioning democracies—subject themselves to ICs with the authority to interpret and adjudicate alleged violations of relevant human-rights treaties? Second, is it is consistent with their mission of protecting human rights that ICs grant the states some discretion, that is, a “margin of appreciation,” or does such discretion nullify the human-rights protection the ICs were established to provide? The discussion of these ICs lends support to several of the assumptions concerning subsidiarity outlined by Markus Jachtenfuchs and Nico Krisch in this issue’s introduction. [WEB]

Getting to Justice? On Albert Weale: Democratic Justice.

in Critical Review of International Social and Political Philosophy. This article focuses on how Weale’s view in Democratic Justice (Oxford University Press 2013) fits into and responds to two strands of social contract traditions and their critics: the contractarian tradition as he claims to, which seeks to justify normative principles of justice from non-moral premises. The alternative is the contractualist tradition which assumes that individuals are also motivated by other-regarding moral considerations. The aim of the latter is often limited to systematize and specify vague and contested normative judgments concerning shared institutions. There are tensions in Weale’s book whether it addresses the question of concern to contractarians or that of contractualists. A second question concerns Weale’s attempt to extrapolate principles of justice from common property resource regimes within the basic structure of society to that basic structure of a ‘great society’ itself. The impact of the basic structure on individuals is so pervasive that the principle Weale proposes appears to be misapplied. A claim to the marginal product in complex modes of production supplemented by a social insurance scheme says little about the distributive principles for assessing how the basic structure should engender the distribution of marginal products among us. [D0I/LINK] [SSRN] [WEB]

“The Principle of Subsidiarity as a Constitutional Principle in the EU and Canada.”

Follesdal, A. and V. Muniz-Fraticelli 2015 “The Principle of Subsidiarity as a Constitutional Principle in the EU and Canada.” 10 (2): 89-206.
A Principle of Subsidiarity regulates the allocation and/or use of authority within a political order where authority is dispersed between a centre and various sub-units. Section one sketches the role of such principle of subsidiarity in the EU, and some of its significance in Canada. Section 2 presents some conceptions of subsidiarity that indicate the range of alternatives. Section 3 considers some areas where such conceptions might add value to constitutional and political deliberations in Canada. Section 4 concludes with some reminders of crucial contested issues not fully resolved by appeals to subsidiarity alone, exemplified by the protection of human rights. [D0I/LINK]

“Building Democracy at the Bar”

“Building Democracy at the Bar: The European Court of Human Rights as an Agent of Transitional Cosmopolitanism.” to appear in Transnational legal theory. “How, if at all, does the European Court of Human Rights (ECtHR) promote more just states which vary greatly in their democratic credentials? The article considers the ECtHR and its practices from the perspective of ‘non-ideal theory,’ namely how it helps states become more stable and just, and more compliant with the human rights norms of the European Convention on Human Rights. The article first sketches what is meant by ‘non-ideal theory,’ then considers aspects of the Council of Europe and the ECtHR, which promote transitions toward more just member states. The ECtHR’s practices suffer from at least two weaknesses in this regard: it assumes with insufficient argument that standards appropriate for ‘ideal theory’ conditions of full compliance also should apply to states that suffer from wide ranging noncompliance, or from unjust institutions. Secondly, the Court relies on an ‘emerging European consensus’ with insufficient empirical and normative justification. [SSRN]

International Human Rights Courts: Beyond a State of Nature?

Foreword in Fragmentation in International Human Rights Law: Beyond Conflicts of Laws. M. Ajevski, ed. London, Routledge 2015: xi-xviii. The subject of this fascinating volume is the fragmentation of international and regional human rights courts and treaty bodies (ICs), that is, tensions among courts which all address the same functional area, often bringing apparently similar norms to bear. The rights of concern here are widely regarded as belonging to the core of human rights: freedom of expression, right to privacy, freedom of assembly, and freedom of association. What are we to make of the conflicts that occur not only among such rights and other norms of international law – ranging from trade to the environment – but conflicts among the various human rights courts empower to adjudicate such rights – which courts and rights often conflict? [WEB][SSRN]