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].

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].

 

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]

The European Court of Human Rights and transitions

“Building Democracy at the Bar: The European Court of Human Rights as an Agent of Transitional Cosmopolitanism.” Transnational Legal Theory (special issue, 2016, ed. Claudio Corradetti).

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. [D0I/LINK] [WEB]

Subsidiarity to the Rescue for the European Courts?

“Subsidiarity to the Rescue for the European Courts? Resolving Tensions between the Margin of Appreciation and Human Rights Protection”. in Join, or Die – Philosophical Foundations of Federalism. D. Heideman & K. Stoppenbrink, de Gruyter (2016) : 251-272.
Protests against how the European Court of Human Rights manages the dilemma between protecting human rights and respecting sovereignty led to Protocol 15, which includes references to ‘subsidiarity and a ‘margin of appreciation’ in the Preamble to the European Convention on Human Rights. The article argues that a ‘Principle of Subsidiarity’ can alleviate some of the challenges posed by the margin of appreciation doctrine, in particular that it sacrifices human rights protection on the altar of respect for state sovereignty. Section 1 presents the Margin of appreciation doctrine and some criticism raised against it, section 2 sketches versions of the principle of subsidiarity relevant for this discussion. Section 3 seeks to bring subsidiarity to bear on the question of which authority the ECtHR should enjoy within a multi-level European legal order, and in particular why it should grant states a certain margin of appreciation. Section 4 considers how these arguments concerning a margin of appreciation applies to the European Union—leaving the many other aspects of accession aside. [D0I/LINK] [WEB].