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].


Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty over, or Has It Just Begun?

How should the European Court of Human Rights best ‘balance’ respect for the sovereignty of states with protection of the human rights of their citizens? The Court’s theory of subsidiarity must inform its margin of appreciation doctrine when Protocol 15 includes these two concepts in the Preamble of the European Convention on Human Rights. Issues for the Court and for researchers include aspects the doctrine of the margin of appreciation: the proportionality test and the ‘European consensus’; and a more justifiable conception of subsidiarity.

“Squaring the Circle at the Battle at Brighton: Is the War between Protecting Human Rights or Respecting Sovereignty over, or Has It Just Begun?” in Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders. O. M. Arnardóttir &A. Buyse. London, Routledge: 189-204. [ABSTRACT] [SSRN] [WEB].

Curb, Channel and Coordinate: The Constitutionalisation of International Courts

“Curb, Channel and Coordinate: The Constitutionalisation of International Courts and Tribunals”. in The Contribution of International and Supranational Courts to the Rule of Law . G. D. Baere &J. Wouters. Cheltenham, Elgar Publishing, 2015: 355-369. From the vantage point of normative political philosophy the preceding chapters in this volume offer several lessons and further research questions of how to assess and promote the legitimacy of these ICs. Several proposals amount to measures of constitutionalisation of ICs. Section I identifies some of the hitherto understudied arenas where the authors remind us that the perceived legitimacy of the ICs matters if they are to secure their various objectives. Section II addresses one central standard of legitimacy: the content of the concept of the Rule of Law, which remains contested both as an objective of ICs, and as a requirement on their operation. I stipulate that two central underlying values justify several if not all rule of law norms: non-domination and stable legitimate expectations. Respect for human rights is a further substantive value which many but not all contributors include in the concept. I then consider two main challenges to the legitimacy of ICs from rule of law standards. One is the possible fragmentation and the legal uncertainty that may ensue. Section III thus summarizes the chapters’ insights about the alleged fragmentation wrought by so many ICs. Section IV considers some further challenges to the objectives and performance of ICs by these rule of law standards. Their multiple objectives require that the judges and arbitrators enjoy a wide berth of discretion in interpretation and adjudication. The following two sections responds to these fears. Section V elaborates how the power of ICs is constrained by their complex interrelationship with domestic authorities and Subsidiarity. Section VI considers several ways to regulate the discretion of the ICs to reduce the risks of fragmentation and domination. [SSRN][WEB].

Mye riktig, mest irrelevant om TTIP

Europaparlamentariker Christofer Fjellner har mye rett i det han skriver om internasjonale investeringsavtaler og -tribunaler (DN 27.6), men det meste er irrelevant for TTIP mellom EU og USA. … Frihandelsavtalen kan også indirekte endre styrkeforholdet mellom myndigheter og selskaper ved at selskapene kan true med tvisteløsning når interessene deres nedprioriteres. Eksempler kan være endringer av kommuneplaner, strengere krav til forurensende utslipp, kriseberedskap eller arbeidstakerrettigheter, eller skatteskjerpelser. Fjellner har rett i at den sterkestes rett ikke bør gjelde i internasjonal handel. Investeringsbeskyttelse kan være en del av både løsningen og problemet.  Med Ole Kristian Fauchald i Dagens Næringsliv 2. juli.[WEB] [PDF]