Follesdal, Andreas: In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. (Type: Journal Article | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation, Publications)@article{RN52180,Member states of the Council of Europe subject themselves to judicial human rights review by the European Court of Human Rights. That Court in turn defers sometimes to the judgments of domestic courts about compliance, granting them a margin of discretion, more so when it sees a European consensus. This complex practice can be justified based on arguments about comparative epistemic expertise, respect for democratic decision making, and the need to avoid undue judicial discretion – juristocracy. While this account supports the general practice, it points to certain weaknesses and areas of improvement: the rules to nominate and elect judges and members of the Registry of the Court, the doctrine of the margin of appreciation, and the rationales for a European consensus. |
Follesdal, Andreas: Add international courts to The Idea of Human Rights and stir … on Beitz’ The Idea of Human Rights after 10 years. In: Álvarez, David; Rosas, João Cardoso (Ed.): The Idea of Human Rights Revisited: Charles Beitz and the Political Turn in the Philosophy of Human Rights, Routledge, 2023. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, International courts, Publications)@inbook{RN52229,These reflections elaborates the theory of The Idea of Human Rights by addressing a topic that theory attempts to bracket: international and regional judicialization in the form of international courts and tribunals. Using the method of reflective equilibrium, the article argues that this exclusion is inconsistent. Including these international courts and tribunals (‘ICs’) prompts several changes to the original theory, and opens new research questions. The original theory is on the one hand too narrow regarding both the objectives and tools of international mechanisms of corrective concern. The account should consider further subsidiary modes of support. On the other hand the theory is too broad, in that it gives insufficient guidance to the judges of ICs and others able to effect changes. This leaves the theory incomplete, and open to similar criticism as the book raised against others. Accounts of the theory presented in The Idea of Human Rights,and of ICs and their roles regarding human rights allow us to explore some implications of ICs for The Idea of Human Rights.We then consider how if at all The Idea of Human Rights can guide international judges. |
Follesdal, Andreas: Add international courts to The Idea of Human Rights and stir … on Beitz’ The Idea of Human Rights after 10 years. In: Critical Review of International Social and Political Philosophy, vol. 25, no. 1, pp. 66-86, 2022. (Type: Journal Article | Abstract | Links | Tags: Human Rights, International courts, Publications)@article{RN51709,These reflections elaborates the theory of The Idea of Human Rights by addressing a topic that theory attempts to bracket: international and regional judicialization in the form of international courts and tribunals. Using the method of reflective equilibrium, the article argues that this exclusion is inconsistent. Including these international courts and tribunals (‘ICs’) prompts several changes to the original theory, and opens new research questions. The original theory is on the one hand too narrow regarding both the objectives and tools of international mechanisms of corrective concern. Reprinted 2023 in David Álvarez and João Cardoso Rosas (eds) The Idea of Human Rights Revisited: Charles Beitz and the Political Turn in the Philosophy of Human Rights, Routledge |
Follesdal, Andreas: International human rights courts and the (international) rule of law: Part of the solution, part of the problem, or both?. In: Global Constitutionalism, vol. 10, no. 1, pp. 118-138, 2021. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights, International courts, Publications)@article{RN50110,The present article seeks to shed some light on the central relationships between international rule of law norms and international human rights courts, whilst identifying some of the central normative concerns. The aim is partly theoretical, to lay out aspects of how to ‘extend’ or ‘extrapolate’ normative standards such as the rule of law from the domestic setting to international law and organizations; and to explore some modes of interaction between rule of law standards and international courts. The article also draws together relevant empirical findings to shed light on how some of these courts actually work to challenge and bolster rule of law standards. Section 1 sketches one way to ‘transpose’ domestic rule of law norms to international law and institutions – in particular, international human rights courts (IHRCs). We then move to consider two relationships between such standards and IHRCs – in particular, the European Court of Human Rights (ECtHR). Section 2 considers whether IHRCs themselves live up to such standards, in particular as regard selection of judges to secure both independence and accountability. Do IHRCs promote the rule of law among states as judicial organs in multilevel structures, or are they instruments of domination by strong states? I also consider other forms of bias important for ICs, in particular professional bias of the judges. Section 3 explores whether and how IHRCs may promote the rule of law within states: how they may help reduce domination, without themselves becoming new sources of unchecked discretion. The answers hold at best for the ECtHR, but may vary among IHRCs and among the states over which they have jurisdiction. |
Hessler, Kristen; Follesdal, Andreas: Gender imbalance on the international bench: is normative legitimacy at stake?. In: Journal of Social Philosophy, vol. 52, no. 4, pp. 430-435, 2021. (Type: Journal Article | Abstract | Links | Tags: Gender, Human Rights, International courts, Publications)@article{RN52225,As norms of state sovereignty have evolved in an increasingly globalized world, international courts and tribunals have proliferated and expanded the scope of their authority. Some observers hail these developments as moral progress, representing the ascendancy of the rule of law rather than power politics in international relations. At the same time, the growing number of ICs, and their expanded scope and power, have triggered extensive critiques and political resistance against them. ..However, ICs have received increasing criticism regarding issues of representation among judges….Some recent developments on this issue are hopeful. ..However, a broader perspective reveals that these developments indicate only marginal progress. As of March, 2021 women constitute only 24% of sitting judges on international tribunals, 22% of judges on human rights tribunals, and only 13% of regional court judges…. |
Follesdal, Andreas: Religion and the State – the European Court of Human Rights and the ‘Lautsi’ case of the European Court of Human Rights about crucifixes in Italian class rooms. In: Ehlers, Dirk; Glaser, Henning (Ed.): State and Religion: Between Conflict and Cooperation, pp. 315 – 330, Nomos, Baden Baden, 2020. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Human Rights, Margin of Appreciation)@inbook{RN49938,The relationship between political authorities and religious communities is complex and controversial. One area where the tensions are evident is in public education. Tensions arise when the state seeks to include or exclude contested religious symbols and teachings within the public educational system.The European Court of Human Rights’ track record may seem inconsistent. It has restricted religious teaching in textbooks allowed Turkey to prohibit students from wearing religious headscarves at university , allowed Switzerland to prohibit primary school teachers from wearing headscarves , and allows Italy to require crucifixes on school walls – after first denying Italy that authority. There are several ways to try to make some sense of this cluster of decisions. The explanation which will be addressed here is the ECtHR’s practice to grant states a ‘Margin of Appreciation’ (MA). This article seeks to bring a more precise MA doctrine to bear on the Lautsi case concerning crucifixes on school walls, to assess whether the ECtHR decision and doctrine withstands criticism that it is too vague, or that it is poorly applied in this particular case. The first section presents the Lautsi case, the following sections attend to various elements of the MA doctrine of the court. We return at the end to consider whether critics of the MA doctrine are right. |
Ulfstein, Geir; Ruud, Morten; Follesdal, Andreas: The European Convention on Human Rights and other parts of international law. In: International Journal on Human Rights, vol. 24, no. 7, pp. 913-16, 2020. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@article{RN51660,The relationship between the European Convention on Human Rights (ECHR) and other parts of international law has been the subject of increasing debate, following several recent judgments by the European Court of Human Rights (ECtHR). Indeed, the Council of Europe Steering Committee for Human Rights (CDDH) report on The Longer-term Future of the System of the European Convention on Human Rights of 11 December 2015 identified the ‘place of the of the Convention mechanisms in the European and international legal order” as one of the four areas to be decisive for the effectiveness and viability of the Convention system. |
Ulfstein, Geir; Ruud, Morten; Follesdal, Andreas: The Relationship Between the European Convention on Human Rights and Wider International Law – Special Issue. International Journal on Human Rights, 2020. (Type: Book | Abstract | Links | Tags: Human Rights, Publications, Special issues)@book{RN51661,Based on presentations at a seminar in Strasbourg 29-30 March 2017, to launch the work of the Drafting Group II of the Committee of experts on the system of the Convention (DH-SYSC-II) of the Council of Europe. The seminar was organized in cooperation between the PluriCourts Centre on the Legitimacy of the International Judiciary, at the University of Oslo, and the Council of Europe. |
Follesdal, Andreas: A better Signpost, not a better walking Stick: How to evaluate the European Consensus doctrine. In: Kapotas, Panos; Tzevelokos, Vassilis (Ed.): Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond, pp. 189-209, Cambridge University Press, Cambridge, 2019. (Type: Book Chapter | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation)@inbook{RN50770,One of the more contested interpretative practices of the European Court of Human Rights (ECtHR) is its sighting of an ‘emerging European consensus’ (EuC) and the implications that the Court draws. If this practice is to be kept, suggestions for its improvement should be guided by the normatively justifiable roles such a practice should play, be it as part of the Court’s ‘dynamic interpretation’ of the Convention, or as a means to specify the margin of appreciation doctrine, or both. This requires closer reflection about which are sound reasons for the Court to appeal to EuC. Section 9.1 sketches the current practice of the Court. Section 9.2 explains why several critics claim that the EuC practice is too vague and otherwise problematic. Section 9.3 considers some of the most prominent arguments in favour of EuC, noting that several of these arguments fail to consider the peculiar subsidiary role of the human rights review by the ECtHR within the multi-level European legal order. |
Follesdal, Andreas: Legitimacy criticisms of international courts: Not only Fuzzy Rhetoric?. In: Sadurski, Wojciech; Sevel, Michael; Walton, Kevin (Ed.): Legitimacy: The State and Beyond, pp. 223-237, Oxford University Press, Oxford, 2019. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, International courts, Publications)@inbook{RN50854,Many claims that international courts (ICs) are illegitimate are related in complex ways – differently in fields ranging from human rights to trade. This is not to deny that some talk of the illegitimacy of ICs is inaccurate or wrong. But it is possible and indeed valuable to develop a coherent account that connects several various usages, so as to specify better, worse and downright mistaken claims concerning the legitimacy of ICs. normative legitimacy provides helpful unity to many of the canvassed forms of legitimacy. The particular substantive normative conception of global justice to be respected and promoted by these institutions is not central to this task. I develop the outline of a theory by drawing on Joseph Raz’ ‘service conception’ of normatively legitimate authority, David Easton’s ‘systems analysis,’ and a cosmopolitan normative theory. Section 1 sketches relevant aspects of Raz’ account of legitimate authority: the service conception. Section 2 lays out some normative standards relevant for the ICs. The next sections then elaborate why, on the service conception, various legitimacy conceptions matter for normative legitimacy: why legality matters (section 3) including some reasons for the (limited) significance of state consent – even by rogue states. Section 4 starts to explore why and when actual compliance is important but not always decisive. Section 5 considers why the performance or effects of an IC matters. |
Ryssevik, Jostein; Føllesdal, Andreas; Thorsen, Dag Einar; Aubert, Axel: Politikk og menneskerettigheter. Aschehoug, Oslo, 2018. (Type: Book | Links | Tags: Human Rights)@book{RN51004, |
Follesdal, Andreas: Appreciating the Margin of Appreciation. In: Etinson, Adam (Ed.): Human Rights: Moral or Political?, pp. 269-294, Oxford University Press, Oxford, 2018. (Type: Book Chapter | Abstract | Links | Tags: Democratic theory, European Court of Human Rights, Human Rights, Margin of Appreciation, Publications)@inbook{RN49344,How should an international human rights court best pay due respect to both the treaty and to its sovereign creators? The European Court of Human Rights (ECtHR) is a prime case. It reviews whether states uphold their obligations under the European Convention on Human Rights (ECHR). The Court is also authorized to rule on whether states may violate certain of their citizens’ rights – as the Convention permits – in order to protect morals, the conflicting rights of others, national security or other considerations (e.g. Articles 8 and 15). One mechanism that arguably serves to reduce the risk that the ECtHR will abuse its power is the margin of appreciation (MA) doctrine that the Court has developed. The Court grants states the authority to decide, in some cases, whether they are in compliance with their treaty obligations. Is the MA doctrine a sound response to this perceived dilemma between majoritarian democracy and protection of human rights? The present chapter presents and defends some form of the MA doctrine precisely as a contribution by the Court to both protect human rights and to promote domestic democracies. I shall also suggest reforms to render it more legitimate. |
Squatrito, Theresa; Young, Oran; Follesdal, Andreas; Ulfstein, Geir: The Performance of International Courts and Tribunals. Cambridge University Press, Cambridge, 2018, ((i) the IC’s output: its judgments and interpretations; (ii) its outcome in the sense of states’ compliance with particular judgments; and (iii) the ultimate broader impact of such compliance on the ground.). (Type: Book | Abstract | Links | Tags: Edited books, Human Rights, International courts, Publications)@book{RN50115,International courts and tribunals now operate globally and in several world regions, playing significant roles in international law and global governance. However, these courts vary significantly in terms of their practices, procedures, and the outcomes they produce. Why do some international courts perform better than others? Which factors affect the outcome of these courts and tribunals? The Performance of International Courts and Tribunals is an interdisciplinary study featuring approaches, methods and authorship from law and political science, which proposes the concept of performance to describe the processes and outcomes of international courts. It develops a framework for evaluating and explaining performance by offering a broad comparative analysis of international courts, covering several world regions and the areas of trade, investment, the environment, human rights and criminal law, and offers interdisciplinary accounts to explain how and why international court performance varies. |
Follesdal, Andreas: Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights?. In: International journal of constitutional law, vol. 15, no. 2, pp. 359-371, 2017. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights, Margin of Appreciation)@article{RN50633,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. |
Follesdal, Andreas: Independent yet Accountable: Stress Test Lessons for the European Court of Human Rights. In: Maastricht Journal of European and Comparative Law, vol. 24, no. 4, pp. 484-510, 2017. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@article{RN50477,An important ‘stress test’ for regional human rights courts would be to see how well such courts perform when faced with authoritarian, human rights-violating regimes that they are supposed to hinder or constrain. These states are not only subjects of the court, but also its masters insofar as they enjoy various forms of control and accountability mechanisms that may constrain the court’s independence. The article argues that, at least in the case of the European Court of Human Rights (ECtHR), its precarious ‘constrained independence’ should be modified to enhance its impact even under such circumstances. Such changes could strengthen the ECtHR’s impartial and independent role without running the risk of turning it into a so-called ‘juristocracy’ – subjecting European states to the arbitrary rule of international judges. |
Follesdal, Andreas: Theories of Human Rights: Political or Orthodox – why it matters. In: Maliks, Reidar; Karlsson, Johan Schaffer (Ed.): Moral and Political Conceptions of Human Rights: Implications for Theory and Practice, pp. 77-96, Cambridge University Press, Cambridge, 2017. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN50170,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. |
Føllesdal, Andreas; Ruud, Morten; Ulfstein, Geir: De internasjonale menneskerettighetene og Norge: Spenninger og samspill. In: Føllesdal, Andreas; Ruud, Morten; Ulfstein, Geir (Ed.): Menneskerettighetene og Norge: Rettsutvikling, rettsliggjøring og demokrati, pp. 13-32, Universitetsforlaget, Oslo, 2017. (Type: Book Chapter | Tags: Human Rights)@inbook{RN51031, |
Saul, Matthew; Follesdal, Andreas; Ulfstein, Geir: The International Human Rights Judiciary and National Parliaments: Europe and Beyond. Cambridge University Press, Cambridge, 2017. (Type: Book | Abstract | Links | Tags: Edited books, European Court of Human Rights, Human Rights)@book{RN52622,The emerging international human rights judiciary (IHRJ) threatens national democratic processes and ‘hollows out’ the scope of domestic and democratic decision-making, some argue. This new analysis confronts this head on by examining the interplay between national parliaments and the IHRJ, proposing that it advances parliament’s efforts. Taking Europe and the European Court of Human Rights as its focus – drawing on theory, doctrine and practice – the authors answer a series of key questions. What role should parliaments play in realising human rights? Which factors influence the effects of the IHRJ on national parliaments’ efforts? How can the IHRJ adjust its influence on parliamentary process? And what triggers the backlash against the IHRJ from parliaments and when? Here, the authors lay foundations for better informed scholarship and legal practice in the future, as well as a better understanding of how to improve the effectiveness and validity of the IHRJ. |
Follesdal, Andreas: Law making by law breaking? A theory of parliamentary civil disobedience against international human rights courts. In: Saul, Matthew; Follesdal, Andreas; Ulfstein, Geir (Ed.): The International Human Rights Judiciary and National Parliaments: Europe and Beyond, pp. 329-352, Cambridge University Press, Cambridge, 2017. (Type: Book Chapter | Abstract | Links | Tags: Civil disobedience, European Court of Human Rights, Human Rights, International courts, Publications)@inbook{RN50106,Recent cases of non-compliance with judgments of the European Court of Human Rights (ECtHR) raise several profound questions of legitimacy. Some states seem simply unwilling to defer to the ECtHR, putting their own legitimacy on the line. Other cases, such as the Hirst v. UK case of prisoners’ voting rights, seem to challenge the legitimacy of the Court or aspects of its practices. May some such non-compliance with international courts in fact be justifiable? The present chapter argues that some forms of parliamentary disobedience may be understood and assessed not only as protest and avoidance, but also as a constructive mode of correcting the law making of the ECtHR. Under some conditions, certain forms of domestic parliamentary disobedience should be considered as and accepted as an extreme form of multi-level law making. Few states can be expected to pressure human rights ICs to interpret the treaties expansively. Thus states might not be suitable actors in a system of checks to ensure that ICs interpret in appropriate ways. Yet checks and balances should be developed in our multi-level legal order to alleviate the risks wrought by ICs’ interpretation and law making. |
Follesdal, Andreas: Democracy and regional human rights courts. In: International Journal of Constitutional Law, vol. 15, no. 2, pp. 358, 2017. (Type: Journal Article | Abstract | Links | Tags: Democratic theory, Human Rights, Publications)@article{RN50781,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…. |
Follesdal, Andreas: Tracking justice democratically. In: Social Epistemology, vol. 31, no. 3, pp. 324-339, 2017. (Type: Journal Article | Abstract | Links | Tags: Democratic theory, European Court of Human Rights, Human Rights, Publications)@article{RN50172,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. |
Follesdal, Andreas: Democracy and regional human rights courts: Enemies, allies, or both? Symposium. International Journal of Constitutional Law, 2017. (Type: Book | Abstract | Links | Tags: Democratic theory, Human Rights, Publications, Special issues)@book{RN50782,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…. |
Ulfstein, Geir: The European Court of Human Rights and national courts: a constitutional relationship?. In: Arnardóttir, Oddný Mjöll; Buyse, Antoine (Ed.): Shifting Centres of Gravity in Human Rights Protection, pp. 46-56, Routledge, London, 2016. (Type: Book Chapter | Tags: Human Rights)@inbook{RN50637, |
Follesdal, Andreas; Tsereteli, Nino: The margin of appreciation in Europe and beyond – Special Issue. The International Journal of Human Rights, 2016. (Type: Book | Abstract | Tags: European Court of Human Rights, Human Rights, International courts, Margin of Appreciation, Special issues)@book{RN50638,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. |
Follesdal, Andreas: 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: Arnardóttir, Oddný Mjöll; Buyse, Antoine (Ed.): Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, pp. 189-204, Routledge, London, 2016. (Type: Book Chapter | Abstract | Links | Tags: European Consensus, European Court of Human Rights, Human Rights, Margin of Appreciation, Publications, Subsidiarity)@inbook{RN50034,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. |
Follesdal, Andreas: Subsidiarity and international human rights courts: respecting self-governance and protecting human rights – or neither?. In: Law and Contemporary Problems, vol. 79, no. 2, pp. 147-163, 2016. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights, International courts, Margin of Appreciation, Publications, Subsidiarity)@article{RN50076,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 in this issue’s introduction. |
Follesdal, Andreas: Subsidiarity to the Rescue for the European Courts? Resolving tensions between the Margin of Appreciation and Human Rights Protection. In: Heidemann, Dietmar; Stoppenbrink, Katja (Ed.): Join, or Die – Philosophical Foundations of Federalism, pp. 251-272, de Gruyter, Berlin, 2016. (Type: Book Chapter | Abstract | Links | Tags: EU – European Union, European Court of Human Rights, Federalism, Human Rights, Margin of Appreciation, Publications, Subsidiarity)@inbook{RN50196,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. |
Follesdal, Andreas; Tsereteli, Nino: The margin of appreciation in Europe and beyond. In: The International Journal of Human Rights, vol. 20, no. 8, pp. 1055-1057, 2016. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights, International courts, Margin of Appreciation, Publications)@article{RN50636,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. |
Follesdal, Andreas: Building democracy at the bar: The European Court of Human Rights as an agent of transitional cosmopolitanism. In: Transnational Legal Theory, no. special issue, ed. Claudio Corradetti, pp. 95-113, 2016. (Type: Journal Article | Abstract | Links | Tags: Democratic theory, European Consensus, European Court of Human Rights, Human Rights, Publications)@article{RN50171,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. |
Ajevski, Marjan: Fragmentation in International Human Rights Law: Beyond Conflicts of Laws. Routledge, London, 2015. (Type: Book | Abstract | Links | Tags: Human Rights)@book{RN50234,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? |
Follesdal, Andreas: International Human Rights Courts: Beyond a State of Nature – Foreword. In: Ajevski, Marjan (Ed.): Fragmentation in International Human Rights Law: Beyond Conflicts of Laws, pp. xi-xviii, Routledge, London, 2015. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN50083,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? |
Follesdal, Andreas: Curb, Channel and Coordinate: The Constitutionalisation of International Courts and Tribunals. In: Baere, Geert De; Wouters, Jan (Ed.): The Contribution of International and Supranational Courts to the Rule of Law, pp. 355-369, Elgar Publishing, Cheltenham, 2015. (Type: Book Chapter | Abstract | Links | Tags: EU – European Union, Human Rights, International courts, Publications, Subsidiarity)@inbook{RN50186,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. The following comments identify some of these. 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 – which raise the risk that states and individuals become subject to domination by the ICs themselves. Individuals may end up not living under the rule of law but under the rule of international lawyers. The following two sections gather several possible strands of responses to these fears. Section V elaborates how the power of ICs is constrained by their complex interrelationship with domestic authorities. Some such interdependence may be assessed by a further popular standard of legitimacy in addition to the rule of law, namely subsidiarity. This concept is often invoked in international law, explicitly so for the European Union4 and in debates concerning the European Convention on Human Rights.5 The section explores how several features of the authority of ICs presented by the authors may be explained and perhaps assessed by some standard of subsidiarity, to reduce the risks wrought by the ICs themselves. Appeals to subsidiarity may not so much lay issues to rest as stimulate more structured and systematic arguments concerning the legitimacy of ICs. Section VI considers several ways to regulate the discretion of the ICs to reduce the risks of fragmentation and domination, garnered from the contributions of this volume. Increased legitimacy of international courts requires perspectives and measures of constitutionalisation: Promote rule of law standards by better checks on the international courts, and channel and coordinate them better. |
Follesdal, Andreas; Muniz-Fraticelli, Victor: The Principle of Subsidiarity as a constitutional principle in the EU and Canada. In: Les Ateliers de l’Éthique/The Ethics Forum, vol. 10, no. 2, pp. 89-206, 2015. (Type: Journal Article | Abstract | Links | Tags: Human Rights, Publications, Subsidiarity)@article{RN49342,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. |
Follesdal, Andreas: Global Citizenship. In: Sterri, Aksel Braanen (Ed.): Global Citizen – Challenges and Responsibility in an Interconnected World, pp. 71-82, Sense, Rotterdam, 2014. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN49722,Our actions and practices increasingly mutually affect others across territorial borders. Since these processes of globalization affect our opportunities and our possible impact, globalization also affects what we ought to do – as ‘global citizens’. The chapter explores some implications for our conceptions of citizenship beyond the state. Individuals should be able to exercise some democratic voting rights and some human rights vis-à-vis governance structures above the nation state under our conditions of globalization. After a brief overview including a historical backdrop, section 2 sketches some components of global citizenship, and section 3 considers several objections to this notion. |
Follesdal, Andreas: Subsidiarity and the global order. In: Zimmermann, Augusto; Evans, Michelle (Ed.): Global Perspectives on Subsidiarity, pp. 207-220, Springer, Dordrecht, 2014. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@inbook{RN49328,Subsidiarity has been proposed as an answer to the challenges of globalization and global governance. This chapter addresses some of the strengths and weaknesses of such a principle of subsidiarity for questions of how to allocate and use authority at regional and global levels. The chapter criticizes the ‘state centric’ versions of subsidiarity often appealed to for such global settings. In particular, there are several challenges wrought by states that fail to respect their citizens’ human rights, variously interpreted. More defensible versions of subsidiarity do not provide normative legitimacy to the state centric aspects of the global order. Section 1 sketches some of the remarkably different conceptions of subsidiarity as a background to the usages in the European Union, the Catholic Church and as it allegedly appears in international law. The different versions drastically reduce or enlarge the scope of member unit authority. Section 2 considers some implications for the legitimate allocation of authority in our global order which includes many states that routinely violate their citizens’ fundamental human rights. The function of the European Court of Human Rights offers a helpful contrast. |
Ulfstein, Geir; Follesdal, Andreas: The European Court of Human Rights and the Norwegian Supreme Court – Independence and Democratic Control. In: Engstad, Nils Asbjørn; Frøseth, Astrid Lærdal; Tønder, Bård (Ed.): The Independence of Judges, pp. 247-260, Eleven, 2014. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@inbook{RN49702,How far the courts should go in testing legislation has been highlighted in Norway in recent years by several cases where the Supreme Court has deemed laws unconstitutional. Critics claim that courts thus interfere with democratic decision-making, whilst protecting neither the rule of law nor vulnerable population groups.2 The empowerment of courts means that the independence and qualifications of the judges become more important. It furthermore adds to ‘legalization’, which increasingly causes popular and political concern. The internationalization of law raises further issues for judicial review. In this article, we discuss review of national law on the basis of the European Convention on Human Rights (ECHR) by the European Court of Human Rights (ECtHR) and by the Norwegian Supreme Court. We are concerned both with the possible democratic legitimacy of such review, and other grounds for legitimacy. We finally point to some implications of this internationalization of law for public perceptions of the judges’ functions in society and for their independence – and some implications for the Norwegian selection of judges to the Supreme Court and the ECtHR. |
Maliks, Reidar; Follesdal, Andreas: Kantian theory and human rights. In: Follesdal, Andreas; Maliks, Reidar (Ed.): Kantian theory and human rights, pp. 1-7, Routledge, 2014. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN49801,It is, perhaps, not by chance that the steep increase in theories of human rights has been matched by a renaissance in studies of Kant’s political philosophy. The essays are animated by the idea that if we get a better grip on Kant’s philosophy of right, we can energize the creative endeavor of developing philosophical theories of human rights, inspired by his particular way of thinking about the relation between rights and the rule of law. Three features characteristic of Kant’s thinking frequently crop up in the following chapters and help explain why so much recent scholarship may indeed properly be called ‘Kantian’. These features concern rights, legitimacy, and institutions. freedom is constituted by the rights and duties that enable individuals to be subject to the rule of law instead of arbitrary power. Second, political and legal authorities that establish human rights through law derive their legitimacy from being capable of justification to individuals. Third, the public institutions at the domestic and the international level are considered part of the same system. The contributions explore these Kantian principles in different directions. |
Follesdal, Andreas: Legitimacy Challenges and what to do about them – Accountability and authority of the European Court of Human Rights. In: Proceedings of Conference on the Long-term future of the European Court of Human Rights, pp. 78-85, 2014. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights, Margin of Appreciation)@article{RN49901,For this session on accountability, four concerns about the ECtHR merit mention: – the Court’s backlog of well-founded cases; – allegations of overly dynamic interpretation by power-hungry judges; – criticism that the Court abdicates by granting powerful states a margin of appreciation; – criticism that the Court lacks due deference toward well-functioning democracies. …. |
Follesdal, Andreas; Maliks, Reidar: Kantian theory and human rights. Routledge, 2014. (Type: Book | Abstract | Links | Tags: Edited books, Human Rights)@book{RN49725,Human rights and the courts and tribunals that protect them are increasingly part of our moral, legal, and political circumstances. The growing salience of human rights has recently brought the question of their philosophical foundation to the foreground. Theorists of human rights often assume that their ideal can be traced to the philosophy of Immanuel Kant and his view of humans as ends in themselves. Yet, few have attempted to explore exactly how human rights should be understood in a Kantian framework. The scholars in this book have gathered to fill this gap. At the center of Kant’s theory of rights is a view of freedom as independence from domination. The chapters explore the significance of this theory for the nature of human rights, their justification, and the legitimacy of international human rights courts. |
Follesdal, Andreas: Engagement, divestment, or both? Conflicts and interactions: The case of the Norwegian Pension Fund. In: Bohoslavsky, Juan Pablo; Cernic, Jernej Letnar (Ed.): Sovereign Financing, pp. 323-336, Hart, Oxford, 2014. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, Public policy, Publications, SRI – Socially responsible investing)@inbook{RN49321,The Norwegian Government Pension Fund is often regarded as the largest sovereign wealth fund in the world. The Fund merits international attention not only because of its size, but also in terms of its complex mission with regard to responsible investment and the mechanisms it employs in pursuit of this mission. At the same time, the Norwegian Parliament does not want the Fund to contribute to unethical acts or omissions, such as violations of fundamental humanitarian principles, serious violations of human rights, gross corruption or severe environmental damage. It has established two main mechanisms to avoid such complicity. These mechanisms ensure that the Fund is involved in ‘Socially Responsible Investing’ (SRI) of two distinct kinds: An activist approach and a negative approach. The following sections explore these mechanisms and discusses tensions among them, against a historic and current background. |
Follesdal, Andreas: Federalism and Human Rights in Nepal’s Constitutional Design: Challenges for the Judiciary. In: Ehlers, Dirk; Glaser, Hennig; Prokati, Kittisak (Ed.): Constitutionalism and good governance: Western and Eastern perspectives, vol. 1, pp. 193-203, Nomos, Baden Baden, 2014. (Type: Book Chapter | Abstract | Links | Tags: Federalism, Human Rights, Nepal, Publications)@inbook{RN49661,The article addresses one of the difficult tasks of the Nepal Judiciary, which it shares in part with the Constituent Assembly: how to interpret the idea and mechanisms of federalism in ways that are faithful to the best interests of the Nepal people. The CA must create the constitution of a democratic, human rights-respecting Nepal republic, in light of how the constitution will in turn be interpreted and applied by the judiciary. The reflections in this article concern four varieties of federal elements, discussing arguments in favor and against each drawn from an interpretation of other states’ experiences. Two of the four are territorial: Constitutional – an entrenched split of powers – and Political: decentralised autonomy. Two are non-territorial: Minority Rights, and Minority Representation in common decision making bodies. Some of these arguments and lessons may be helpful also for Nepal’s challenges, two features of which are especially noteworthy: there are very many different groups that must be accommodated fairly. And members of these groups very often live side by side on the same territory. Human rights protections combined with federal elements of Nepal’s new constitution must serve to prevent future domination, especially by the centres, over these many ethnic groups and castes. The new constitution therefore creates several new tasks and challenges for Nepal’s judiciary, several of which are identified. |
Follesdal, Andreas: Competing Conceptions of Subsidiarity. In: Fleming, James E.; Levy, Jacob T. (Ed.): Nomos LV: Federalism and Subsidiarity, pp. 214-230, New York University Press, New York, 2014. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Federalism, Human Rights, Publications, Subsidiarity)@inbook{RN49271,Appeals to a Principle of Subsidiarity has become popular due to its aspirations to address the allocation or use of authority within a political order, typically those where authority is dispersed between a centre and various member units. However, considerations of subsidiarity will seldom resolve disagreements about the allocation of authority. To illustrate how different conceptions of subsidiarity have profoundly different implications for constitutional and institutional design, the article first consider four different theories before turning to some implications as seen in the discussions about US federalism, debates in Europe about the EU and the European Court of Human Rights, and international law. |
Follesdal, Andreas: Kant, Human Rights, and Courts. In: Follesdal, Andreas; Maliks, Reidar (Ed.): Kantian theory and human rights, pp. 193-202, Routledge, 2014. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, International courts, Publications)@inbook{RN49802,why we should go back to Kant when we seek to understand human rights as they exist in today’s globalized world. It is a good question: why turn once again to a dead white European man for answers to our own questions? The social and legal setting of his day differed so much from ours that we may well wonder what his thoughts might contribute to our world. .. It is in order to understand the puzzles raised by human rights principles and institutions that the essays in this volume develop thinking that is Kantian, that is, inspired by his particular way of thinking about the relation between rights and the rule of law. The following are some reflections prompted by these contributions. The first section explores the role of theories of human rights law, the second section explores the unit of analysis, whether it should be courts or the global basic structure. Section three asks whether international courts suffer a democratic deficit worth worrying about; section four addresses prescriptions – what institutional mechanisms would suffice for legitimacy; section five asks what should guide the discretion of judges of international courts, while section six suggests some remaining ‘Kantian’ issues to be explored. |
Follesdal, Andreas: Subsidiarity and the global order. In: Zimmermann, Augusto; Evans, Michelle (Ed.): Global Perspectives on Subsidiarity, pp. 207-220, Springer, Dordrecht, 2014. (Type: Book Chapter | Abstract | Links | Tags: EU – European Union, European Court of Human Rights, Human Rights, Publications, Subsidiarity)@inbook{RN55344,Subsidiarity has been proposed as an answer to the challenges of globalization and global governance. This chapter addresses some of the strengths and weaknesses of such a principle of subsidiarity for questions of how to allocate and use authority at regional and global levels. The chapter criticizes the ‘state centric’ versions of subsidiarity often appealed to for such global settings. In particular, there are several challenges wrought by states that fail to respect their citizens’ human rights, variously interpreted. More defensible versions of subsidiarity do not provide normative legitimacy to the state centric aspects of the global order. Section 1 sketches some of the remarkably different conceptions of subsidiarity as a background to the usages in the European Union, the Catholic Church and as it allegedly appears in international law. The different versions drastically reduce or enlarge the scope of member unit authority. Section 2 considers some implications for the legitimate allocation of authority in our global order which includes many states that routinely violate their citizens’ fundamental human rights. The function of the European Court of Human Rights offers a helpful contrast. |
Follesdal, Andreas: The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory. In: Theoretical Inquiries in Law, vol. 14, no. 2, pp. 339-360, 2013. (Type: Journal Article | Abstract | Links | Tags: Human Rights)@article{RN49341,The Article addresses some of the disagreement concerning the legitimacy of the international human rights judiciary. It lays out some aspects of a theory of legitimacy for the international human rights judiciary that seem relevant to addressing two challenges: First, it is difficult to justify the human rights judiciary by appeal to standard accounts of why states agree to subject themselves to treaties. What is the problem the international human rights judiciary is meant to help solve? Second, the human rights judiciary seems undemocratic and even antidemocratic when it overrules domestic, accountable legislatures. Such international judicial review is therefore sometimes thought to be normatively illegitimate, at least regarding democracies. |
Follesdal, Andreas: Much ado about Nothing? International Judicial Review of Human Rights in Well Functioning Democracies. In: Follesdal, Andreas; Schaffer, Johan; Ulfstein, Geir (Ed.): The Legitimacy of International Human Rights Regimes, pp. 272-299, Cambridge University Press, Cambridge, 2013. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@inbook{RN49403,The chapter addresses some of the tensions between sovereignty, international human rights review and legitimacy, and bring these findings to bear on the proposals for reform of the European Court of Human Rights (ECtHR) that would reduce its authority over national legislatures and judiciaries. The objectives of such review are not obvious, the causes of noncompliance are contested, as is the legality of dynamic treaty interpretation; all of which hamper efforts to assess proposed improvements. Section 1 presents some relevant aspects of the ECtHR. Section 2 reviews some of the recent criticism against the ECtHR practice of judicial review to protect human rights in ‘well-functioning’ democracies, in terms of various forms of legitimacy deficits. It also presents some of the recent proposals for reform of the ECtHR. Section 3 lays out some reasons why such judicial review of majoritarian democratic decision-making may be defensible, also for well functioning democracies. Section 4 responds to some of the criticisms, and presents a partial defence. Some standard objections are not well targeted against the practices of the ECtHR, partly due to the division of responsibility between it and national public bodies, and the different roles of legislators and of judiciaries. Section 5 returns to the proposals presented in section 2. Section 6 concludes by considering some of the important remaining normative challenges, this partial defence notwithstanding. |
Schaffer, Johan Karlsson; Follesdal, Andreas; Ulfstein, Geir: International human rights and the challenge of legitimacy. In: Follesdal, Andreas; Schaffer, Johan; Ulfstein, Geir (Ed.): The Legitimacy of International Human Rights Regimes, pp. 1-30, Cambridge University Press, Cambridge, 2013. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN49803,The practices and institutions of international human rights would seem to enjoy, on average, a broad, strong legitimacy in the contemporary world. And yet, on the other hand, international human rights practices increasingly face potentially disabling skepticism and critique, resentment and even resistance…this volume … contributes to an increasingly lively research literature spanning the disciplines of law, philosophy, political science and international relations. This introductory chapter serves, first, to give some examples of the type of political controversies over international human rights regimes that motivate this volume; second, to place the volume in current academic debates about international human rights and about the legitimate authority of international institutions; and thirdly, to outline the topics covered in the individual contributions. .. |
Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir: Conclusions. In: Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir (Ed.): Constituting Europe: The European Court of Human Rights in a National, European and Global Context, pp. 389-402, Cambridge University Press, Cambridge, 2013. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@inbook{RN49580,…the member states, the organs of the Council of Europe – including the Court itself – the EU and, possibly, the UN, are still seeking to calibrate and develop the ECtHR’s legitimacy within the European sphere of fundamental rights. …. , it is difficult to deny the ECtHR’s constitutional role in its relations with the member states. This is not to say that the ECtHR is formally embedded in the general judicial review structure at the member state levels. Nonetheless, it decides on the compatibility of legislative as well as administrative and judicial acts with the Convention. Pilot judgment cases, in particular, may entail a declaration of incompatibility of particular legal provisions with the Convention … The Court’s Legitimacy….. Development and further solutions … The Future… |
Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir: Constituting Europe: The European Court of Human Rights in a national, European and global context. Cambridge University Press, Cambridge, 2013. (Type: Book | Abstract | Links | Tags: Edited books, European Court of Human Rights, Human Rights)@book{RN49345,At fifty, the European Court of Human Rights finds itself in a new institutional setting. With the EU joining the European Convention on Human Rights in the near future, and the Court increasingly having to address the responsibility of states in UN-lead military operations, the Court faces important challenges at the national, European and international levels. In light of recent reform discussions, this volume addresses the multi-level relations of the Court by drawing on existing debates, pointing to current deficits and highlighting the need for further improvements. |
Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir: Introduction. In: Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir (Ed.): Constituting Europe: The European Court of Human Rights in a National, European and Global Context, pp. 1-24, Cambridge University Press, Cambridge, 2013. (Type: Book Chapter | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@inbook{RN49579,This book examines the new institutional settings of the Court. Few contributions have hitherto concentrated on these multiple relationships of the ECtHR…. The book aims to assess the relationship between the Court and the member states, the EU, the UN and the other organs of the Council of Europe, partly by referring to a specific set of normative criteria, and taking into consideration their respective needs and their own institutional functions. It seeks to provide a coherent overview and some more principled answers to the current reform debate and future design of the Court and of its relationship to the national, European and global level. The book’s main areas of consideration and main objectives are outlined in the following sections… |
Follesdal, Andreas; Schaffer, Johan; Ulfstein, Geir: The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives. Cambridge University Press, Cambridge, 2013. (Type: Book | Abstract | Links | Tags: Edited books, Human Rights)@book{RN49346,this book brings together prominent scholars in law, political philosophy and international relations in order to address the legitimacy of international human rights regimes as a theoretically challenging and politically salient case of international authority. It provides a unique and thorough overview of the legitimacy problems involved in the global governance of human rights. |
Chavez, Leiry Cornejo; Follesdal, Andreas: Fragile Democracies, Strong Human Rights Courts? Comparing European and Inter-American Cases. In: Nordic Journal of Human Rights, vol. 31, no. 4, pp. 471-476, 2013. (Type: Journal Article | Abstract | Links | Tags: Democratic theory, European Court of Human Rights, Human Rights, Publications)@article{RN49685,Do regional Human Rights Courts strengthen democracy? If so, when and why does this occur: what are the scope conditions and intervening mechanisms that make such courts have positive effects? The articles in this special section address these questions as regards the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR). Their similarities and differences allow several lessons to be drawn about the relationship between such courts and democracy….. |
Follesdal, Andreas: Global Distributive Justice? State Boundaries as a Normative Problem. In: Global Constitutionalism, vol. 1, no. 2, pp. 261-277, 2012. (Type: Journal Article | Abstract | Links | Tags: Human Rights)@article{RN49225,Should state borders matter for claims of distributive justice? The article explores, only to reject, the best reasons for an “Anti-Cosmopolitan” position which grants some minimum international obligations, including social and economic human rights. At the same time this Anti-Cosmopolitanism rejects distinctly distributive principles of justice, familiar from discussions of justice among compatriots: There are no further limits on permissible global inequalities. “Anti-Cosmopolitans” do not deny that the tangled web of domestic and international institutions has a massive impact on individuals, their life plans and opportunities, albeit often indirectly and surreptitiously. What they deny is that claims to equality or limits to inequality should apply across state borders. The article explores what it is about states that can justify such a disjunct in the normative claims individuals have against each other. Several arguments about such alleged salient aspects of states and their constitutions are considered, but are found lacking. The main conclusion is to challenge the reasons Anti-Cosmopolitans offer against bringing distributive principles to the “Global Basic Structure.” |
Follesdal, Andreas: Kata pengantar [Preface]. In: Rizki, Rudi M. (Ed.): Violations of Human Rights by transnational corporations and the effort to hold them accountable, pp. vii-ix, Penerbit PT Fikahati Aneska, Jakarta, 2012. (Type: Book Chapter | Tags: Human Rights)@inbook{RN49391, |
Føllesdal, Andreas: Er internasjonal menneskerettighetsprøving legitim?. In: Nytt norsk tidsskrift, no. 1, pp. 71-80, 2011. (Type: Journal Article | Abstract | Tags: Human Rights)@article{RN49017,Internasjonale konvensjoner beskytter stadig flere menneskerettigheter. Mange ser dette internasjonale vernet som et stort framskritt. Samtidig spør noen seg om slike konvensjoner og deres organer er normativt legitime….Hvorfor bør også relativt velfungerende demokratiske stater ratifisere menneskerettighetskonvensjoner? Jeg vil ta til orde for en annen forståelse av demokrati enn flertallsdemokrati, nemlig et demokrati med institusjoner som kan bekrefte at myndighetene er vår tillit verdig. Da kan internasjonal menneskerettsprøving fremme oppslutning om demokratiske ordninger som er verd å forsvare framfor å være en trussel. Men et slikt forsvar for internasjonal prøving er ikke uforbeholdent: det stiller klare krav til menneskerettighetsregimenes innhold og virkemåter. |
Follesdal, Andreas: Federalism, Ethnicity and Human Rights in Nepal – Or: Althusius meets Acharya. In: International Journal of Minority and Group Rights, vol. 18, no. 3, pp. 335-342, 2011. (Type: Journal Article | Abstract | Links | Tags: Federalism, Human Rights, Nepal, Public policy, Publications)@article{RN48871,The article addresses one of the difficult tasks of the Nepal Constituent Assembly: how to translate the idea and mechanisms of federalism in ways that are faithful to the best interests of the Nepal people into a constitution of a democratic, human rights-respecting Nepal republic. The reflections concern four varieties of federal elements, discussing arguments in favour and against each drawn from an interpretation of other states’ experiences. Two of the four are territorial: constitutional: an entrenched split of powers, and political: decentralised autonomy. Two are non-territorial: minority rights and minority representation in common decision making bodies. Some of these arguments and lessons may be helpful also for Nepal’s challenges, two features of which are especially noteworthy: there are very many diff erent groups that must be accommodated fairly. And members of these groups very often live side by side on the same territory. Human rights protections combined with federal elements of Nepal’s new Constitution must serve to prevent future domination, especially by the centres, over these many ethnic groups and castes. |
Follesdal, Andreas: Human Rights Investment Filters: A defense. In: Follesdal, Andreas; Mestad, Ola; Nystuen, Gro (Ed.): Human Rights, Corporate Complicity and Disinvestment, pp. 132-155, Cambridge University Press, Cambridge, 2011. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, Publications, SRI – Socially responsible investing)@inbook{RN48540,Do investors have an obligation to not invest in corporations that contribute to human rights violations? – even when such divestment neither causes changes in the corporations, nor prevents the violations? Is there a justification of divestment that holds up even in the face of general breaches of the norms? Can such a justification avoid reliance on controversial religious views? And are there any grounds to believe that such divestment may be effective against human rights violations, even in the absence of a powerful hegemon that sanctions violations of the norms? The affirmative answers below draw on theories of legitimacy and distributive justice that regard SRI as part of a response to the challenges of globalization. Section 1 frames the issues, drawing on the discussions among Quakers on divesting from the slave trade in the 18th century. Sections 2 and 3 provide a normative defense for some minimal human rights filters on investments under economic globalization. Section 4 addresses several objections. |
Nystuen, Gro; Follesdal, Andreas; Mestad, Ola: Introduction. In: Nystuen, Gro; Follesdal, Andreas; Mestad, Ola (Ed.): Human Rights, Corporate Complicity and Disinvestment, pp. 1-15, Cambridge University Press, Cambridge, 2011. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, Publications, SRI – Socially responsible investing)@inbook{RN48530,In the twenty-first century, questions of corporate conduct in relation to human rights have come to the forefront of public attention….Several institutional investors such as pension funds , especially responsible private funds and government funds have established policies and practices to handle issues of corporate involvement which they find unethical…. The discussions of the book lie at the intersection of three important current developments relating to normative frameworks: first, the corporate social responsibility (CSR ) discussion which addresses companies directly rather than the investors’ perspective; second, the ethical, or responsible, investment development; and third, discussions on norms for sovereign wealth funds that are investors of a special breed….It is against this normative background that this book analyses the relationships between investment, companies’ conduct and human rights…. Concepts of complicity in human rights violations are at the core of this book. They are discussed from several philosophical as well as several legal perspectives. The underlying discussion is how to establish norms for assessing corporate conduct and investors’ relationships to such conduct, and how to apply them?… |
Nystuen, Gro; Follesdal, Andreas; Mestad, Ola: Human Rights, Corporate Complicity and Disinvestment. Cambridge University Press, Cambridge, 2011. (Type: Book | Abstract | Links | Tags: Edited books, Human Rights, Publications, SRI – Socially responsible investing)@book{RN48520,How can businesses and their shareholders avoid moral and legal complicity in human rights violations? … In this volume legal scholars and political philosophers identify and address the intertwined issues of moral and legal complicity in human rights violations by companies and those who invest in them.. Contributors include, in addition to the editors; Simon Chesterman, Christopher Kutz, Urs Gasser, Helene Ingierd, Henrik Syse, Bruno Demeyere and Andrew Clapham |
Follesdal, Andreas: Universal Human Rights as a Shared Political Identity: Impossible? Necessary? Sufficient?. In: Tinnevelt, Ronald; Schutter, Helder (Ed.): Global Democracy and Exclusion, pp. 161-176, Whiley-Blackwell, Chichester, 2010. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN49016,Reprint from Metaphilosophy, 2009, (1): 65-76 – Special issue on global democracy and global exclusion |
Follesdal, Andreas: The legitimacy of international human rights review: The case of the European Court of Human Rights. In: Journal of Social Philosophy, vol. 40, no. 4, pp. 595-607, 2009. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@article{RN48746,The literature concerning judicial review reveals a long list of misgivings of such constraints on domestic democratic decision-making. Of concern here are some of the principled objections against the practice of international judicial review of human rights, using the European Court of Human Rights (ECtHR) as a suitable case. The focus is on two main concerns. Such review seems to violate the commitment to political equality expressed by majority rule, and it is thought to rely on a problematic, predatory conception of human nature. Jeremy Waldron, Richard Bellamy and others have argued these concerns, often from quite plausible normative premises concerning an individual’s sense of justice and the need to avoid domination. Section 1 presents these criticisms. Section 2 then sketches an alternative way to bring normative requirements to bear on institutional design – Liberal Contractualism – which stands in some contrast especially to that of Waldron. Three main features are laid out, to bring out weaknesses in how Waldron and Bellamy use their normative premises to assess a practice or an institution. Central to this liberal contractualism is a particular institutionalist approach, and a concern for trust-building institutions among individuals who are ‘contingent compliers’ with a sense of justice. This account is somewhat more kindly disposed toward international judicial review of human rights, at least in principle. Section 3 then goes back to the criticisms presented in Section 1, and considers the merits of each. Section 4 concludes by identifying some of the weak spots in the case for international human rights review as hitherto made. |
Follesdal, Andreas: Methods of Philosophical Research on Human Rights. In: Coomans, Fons; Kamminga, Menno; Grunfeld, Fred (Ed.): Methods of Human Rights Research, Intersentia, Antwerp, 2009. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN48470,there is no unique philosophical method for good philosophical work on issues of human rights. To the contrary, the same method should govern such research as other philosophical work: the method of ‘reflective equilibrium’ which seeks the mutual accommodation of moral judgments at various levels of generality to arrive at a consistent theory. One of the central philosophical topics – and one which also seems to create confusion among philosophers and other scholars alike – concerns the appropriate relationship between international, legally binding human rights norms and ‘moral’ or philosophical human rights. One source of confusion is that they both serve as critical standards for, or constraints on, domestic legislation. For this reason they sometimes seem to be conflated. The article considers two prominent recent attempts at addressing or using that relationship: those of Amartya Sen and Charles Beitz, and uses the method of Reflective Equilibrium to indicate some of their strengths and weaknesses. |
Follesdal, Andreas: Universal Human Rights as a Shared Political Identity: Impossible? Necessary? Sufficient?. In: Metaphilosophy, vol. 40, no. 1, pp. 65-76, 2009, (Special issue on global democracy and global exclusion). (Type: Journal Article | Links | Tags: Human Rights)@article{RN48510, |
Follesdal, Andreas: Why the European Court of Human Rights might be Democratically Legitimate – A Modest Defense. In: Nordic Journal of Human Rights, vol. 27, no. 2, pp. 289-303, 2009. (Type: Journal Article | Abstract | Links | Tags: European Court of Human Rights, Human Rights)@article{RN48700,Several Nordic countries witness increased criticism against international human rights courts as undemocratic and hence illegitimate. The strongest normative case against the international judicial review could be directed at the European Court on Human Rights (ECtHR), which monitors many well-functioning democracies. Section 1 lists normative objections to judicial review in general. Section 2 sketches a normative defense this practice, and Section 3 presents some relevant aspects of the ECtHR. Section 4 returns to consider the various objections. The mandate, composition, institutional environment and mode of operation of the ECtHR renders it immune to several of these criticisms. The conclusion identifies some objections that merit further attention, both for empirical research and for normative analysis. |
Follesdal, Andreas; Wind, Marlene: Judicial Review in the Nordic Countries – Special Issue. 2009. (Type: Book | Links | Tags: Human Rights, Special issues)@book{RN48799, |
Follesdal, Andreas; Pogge, Thomas: Human Rights: Normative Requirements and Institutional Constraints – Special Issue. Journal of Social Philosophy, 2009. (Type: Book | Links | Tags: Human Rights, Special issues)@book{RN48808, |
Follesdal, Andreas; Wind, Marlene: Introduction: Nordic Reluctance towards Judicial Review under Siege. In: Nordic Journal of Human Rights, vol. 27, no. 2, pp. 131-141, 2009. (Type: Journal Article | Abstract | Links | Tags: EU – European Union, European Court of Human Rights, Human Rights, Publications)@article{RN48800,Is judicial review in accordance with our democratic sensibilities? In a Nordic context this question has caused much public consternation in all five countries in recent years,…. Not only has the European Court of Justice cemented its powers with the EU’s enlargement and with EU legislation on the rise and becoming increasingly open to interpretation; the Strasbourg court and other international dispute-settlement bodies have also become more powerful. In the Nordic countries, judicial review has generated a wide debate not only among specialists but equally among the wider public…. Of central concern in this special issue … is the effect on the Nordic countries and what we refer to as European Judicial Review: review of domestic legislative acts on the basis of the European Convention on Human Rights and the European Union Treaties, on the basis of judgments by the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ). Constitutional and judicial review covers several other topics, and the two courts pose several further important challenges beyond our current concern: … the normative legitimacy of European Judicial Review and the way judicial review by courts has been received in the Nordic democracies. |
Bergesen, Helge Ole; Ryssevik, Jostein; Føllesdal, Andreas; Heir, Marianne: Politikk og menneskerettigheter. Aschehoug, Oslo, 2008. (Type: Book | Tags: Human Rights)@book{RN48614, |
Follesdal, Andreas: International Judicial Human Rights Review – Effective, Legitimate or Both?. In: Sihvola, Juha; Korkman, Peter; Mäkinen, Virpi (Ed.): Universalism in International Law and Political Philosophy, COLLeGIUM, Helsinki, 2008. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN46220,Reprint of Follesdal 2007 in Scandinavian Studies in Law |
Føllesdal, Andreas: Menneskerettighetenes verdigrunnlag. In: Bergesen, Helge Ole; Ryssevik, Jostein; Føllesdal, Andreas; Heir, Marianne (Ed.): Politikk og menneskerettigheter, Chapter 1, pp. 8-31, Aschehoug, Oslo, 2008. (Type: Book Chapter | Tags: Human Rights)@inbook{RN48615, |
Follesdal, Andreas: How to Organize Democracy in Multi-level and Multi-cultural States: Can it be done? Should it be done? [In Chinese]. In: Hong, Zhou; Kohler-Koch, Beate (Ed.): EU Governance Model, pp. 102-126, Social Science Academy Press Chinese Academy of Social Science, Beijing, 2008. (Type: Book Chapter | Abstract | Links | Tags: Democratic theory, EU – European Union, Human Rights, Publications)@inbook{RN47700,Section 1 provides some background of the history of the European Union that explains the increased need for trust and trustworthiness among Europeans and their political leaders. Section 2 gives a brief sketch of some reasons for democratic rule, constrained by human rights. Furthermore, I also indicate where we find some of these claims in ancient Confucian thought. Sections 3 and 4 consider some objections: why democracy might not be thought appropriate for the large and complex European order. I shall argue that these objections do not stand up to scrutiny. Section 5 concludes by considering why and how the Reformed Treaty might enhance democratic accountability and human rights promotion within the EU. |
Follesdal, Andreas: Human Rights, Democracy and Federalism – part of the problem or part of the solution? Securing stability in the European Union and the People’s Republic of China. In: Current Politics and Economics of Asia, vol. 17, no. 1, pp. 211-236, 2008. (Type: Journal Article | Links | Tags: Democratic theory, EU – European Union, Federalism, Human Rights, Publications)@article{RN47730, |
Follesdal, Andreas: On accountability and legitimacy in the EU: Facing the issue of Assurance. In: NEWGOV Cluster Documents – DTF – D08, 2008. (Type: Journal Article | Abstract | Links | Tags: Democratic theory, Human Rights, Publications)@article{RN48130,This report lays out a unified account of the complex and confusing relationship between le-gitimacy, democracy and accountability. The reasons we have to value accountability mecha-nisms and democratic arrangements also lend support to some modes of accountability that lack strong enforcement mechanisms or ultimate electoral accountability, and that all of these forms may further the normative legitimacy of a political order. They may help address the manifold needs of assurance among citizens regarded as ‘contingent compliers,’ – willing to do their share in just schemes, if they are assured that others act likewise. This general per-spective is brought to bear on some salient features of the ‘Constitutional Treaty’ of the Euro-pean Union that might have enhanced the normative legitimacy of the EU: Democratic ac-countability of EU bodies toward European and national parliaments, accountability for sub-sidiarity toward national parliaments; and accountability of national and EU bodies to interna-tional courts with regard to human rights. Such accountability mechanisms, democratic and otherwise, may assure citizens that the institutions and offices satisfy the appropriate stan-dards of legitimacy, and that most other citizens and officials actually do their share. |
Follesdal, Andreas: Why international human rights judicial review might be democratically legitimate. In: Scandinavian Studies in Law, vol. 52, pp. 103-122, 2007. (Type: Journal Article | Links | Tags: Human Rights)@article{RN44670, |
Micheletti, Michele; Follesdal, Andreas: Shopping for Human Rights. An introduction to the Special Issue. In: Journal of Consumer Policy – Shopping for human rights – special issue, vol. 30, no. 3, pp. 167-175, 2007. (Type: Journal Article | Links | Tags: Human Rights)@article{RN47130, |
Follesdal, Andreas: Ethical Investment and Human Rights: A Norwegian Case. In: Nordic Journal on Human Rights, vol. 25, no. 4, pp. 420-433, 2007. (Type: Journal Article | Tags: Human Rights, Publications, SRI – Socially responsible investing)@article{RN47910, |
Micheletti, Michele; Follesdal, Andreas: Shopping for human rights – Special issue. Journal of Consumer Policy, 2007. (Type: Book | Links | Tags: Human Rights, Publications, Special issues)@book{RN47120, |
Butenschon, Nils; Follesdal, Andreas: Minority and group rights to accommodate difference: approaches and applications. In: International Journal on minority and group rights, vol. 13, no. 2-3, pp. 131-139, 2006. (Type: Journal Article | Abstract | Tags: Human Rights)@article{RN45070,Introduction to special issue |
Follesdal, Andreas: Why the EU does not need a uniform approach to Human Rights. In: Melchior, Josef (Ed.): New Spaces of European Governance, Facultas, Vienna, 2006. (Type: Book Chapter | Links | Tags: Human Rights)@inbook{RN44820, |
Follesdal, Andreas; Butenschon, Nils: Do minority and group rights promote just stability in non-unitary political orders? A Research Agenda. In: International Journal on minority and group rights, vol. 13, no. 2-3, pp. 141-152, 2006. (Type: Journal Article | Abstract | Tags: Human Rights)@article{RN43200,Special issue on Human Rights and the Accommodation of Difference |
Follesdal, Andreas: Between Petros and a Hard Place? Human Rights to Religious Liberty or to Gender Equality in Europe. In: Børresen, Kari; Cabibbo, Sara (Ed.): Gender, Religion, Human Rights in Europe, pp. 63-83, Herder, Rome, 2006. (Type: Book Chapter | Links | Tags: Gender, Human Rights, Publications)@inbook{RN42850, |
Follesdal, Andreas: The Constitutional Treaty: the Answer to the European Union’s Quest for a Consistent Human Rights Policy?. In: International Journal on minority and group rights, no. 3-4, pp. 209-222, 2006. (Type: Journal Article | Links | Tags: EU – European Union, Human Rights, Publications)@article{RN43150, |
Follesdal, Andreas: Human Rights and the Accommodation of Difference – Special Issue. International Journal on minority and group rights, – special issue on Human Rights and the Accommodation of Difference, 2006, (Editor: Butenschon, Nils; Follesdal, Andreas). (Type: Book | Tags: Human Rights, Publications, Special issues)@book{RN43110, |
Follesdal, Andreas: Justice, stability and toleration in a Federation of Well-ordered Peoples. In: Martin, Rex; Reidy, David (Ed.): Rawls’s Law of Peoples: A realistic utopia?, pp. 299-317, Blackwell, Oxford, 2006. (Type: Book Chapter | Abstract | Links | Tags: EU – European Union, Federalism, Human Rights, John Rawls, Publications)@inbook{RN40840,How should the European Union express and promote human rights and solidarity? What is the scope of toleration towards states that violate human rights, within and beyond its borders? And what is the scope of permissible economic inequality across states in such a federation of democracies committed to domestic solidarity? … John Rawls contributed to these topics in The Law of Peoples (LP), which stresses the intertwined issues of toleration, stability and legitimacy that face these political relations across political borders. Can this Law of Peoples shed light on the legitimacy of emerging regional political orders such as … the European Union? The account offered here seeks to respect state sovereignty even in the face of some human rights violations, and it accepts a degree of material inequality among individuals in different sub-units of a federation. In particular, the European Union may have a differentiated human rights policy, and solidarity does not require a European-wide Difference Principle. The Difference Principle, even if appropriate for domestic justice, need not apply to a federal order. But the conception of human rights for federations must be more complex than Rawls’ account focused on human rights in a ‘nonfederated’ international order. That difference in domain of application is not a criticism of the Law of Peoples. However, a central weakness of Rawls’ account is that it offers inadequate arguments within its own intended domain of application. International stability for the right reasons requires more than a statement of the limits of toleration about “how far nonliberal peoples are to be tolerated” |
Follesdal, Andreas: Subsidiarity, Democracy and Human rights in the Constitutional Treaty for Europe. In: Journal of Social Philosophy, vol. 37, pp. 61-80, 2006, (Special issue on Globalisation and Democracy). (Type: Journal Article | Abstract | Links | Tags: Democratic theory, Federalism, Human Rights, Publications, Subsidiarity)@article{RN43210,The article discusses whether three particular arrangements of this Constitutional Treaty indeed increase the normative legitimacy of the EU. The mechanisms that increase subsidiarity, democracy, and human rights do enhance the legitimacy of the EU, but they are incompletely developed in the document; they stand in some internal tension, and seem partly at odds with standard normative theory. These challenges may also be relevant for other attempts at creating other transnational, legitimate forms of governance at the regional or global levels. Section 1 provides some background as to the historical development of the EU, the tasks of constitutions, and federalism and the complex forms of trustworthiness needed in these political orders. The next three sections discuss subsidiarity, democracy, and human rights, respectively. |
Follesdal, Andreas: Human Rights and Relativism. In: Follesdal, Andreas; Pogge, Thomas (Ed.): Real World Justice: Grounds, Principles, Human Rights Standards and Institutions, pp. 265-283, Springer, Berlin, 2005. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN40730,The article addresses the issue of whether human rights are “Western” in ways that undermine their use as standards for global and domestic justice. In what has come to be known as the “Asian Values” debate, the article identifies several objections of this sort in the Bangkok Declaration. Drawing on Confucian, Hindu, and Islamic sources, it argues that very many theories of human rights and moral traditions condemn the behavior which human rights serve to protect against. Most of the objections fail to hold against a wide range of human rights theories spelling out their basis and content. The remaining objections do not repudiate human rights norms — at most they support some accounts and specifications of rights over others. Human rights can hardly be dismissed as an objectionable exercise in Western ideological imperialism. |
Follesdal, Andreas; Pogge, Thomas: Introduction. In: Follesdal, Andreas; Pogge, Thomas (Ed.): Real World Justice: Grounds, Principles, Human Rights Standards and Institutions, pp. 1-19, Springer, Doordrecht, 2005, (Author Role: eds.). (Type: Book Chapter | Abstract | Links | Tags: Human Rights, John Rawls)@inbook{RN42580,This volume discusses principles of global justice, their normative grounds, and the social institutions they require. John Rawls’s classic A Theory of Justice firmly established social institutions as a separate domain of moral assessment, associated with the terms justice and social justice. The concept of global justice breaks down the traditional separation of intranational and international relations and extends institutional moral analysis to the whole field. In the traditional framework, we generally bear no responsibility for the violence and poverty inflicted upon foreigners within the black box of their own state. The new philosophical framework, associated with the expression “global justice,” may not be so comfortable. Central to this framework is the causal impact of the design of the global institutional order upon the conditions under which human beings worldwide are living. Within this general global-justice approach, distinct conceptions of global justice will differ in the specific criteria of global justice they propose. But such criteria will coincide in their emphasis on the question of how well our global institutional order is doing, compared to its feasible alternatives, in regard to the fundamental human interests that matter from a moral point of view. Extending institutional moral analysis beyond the state, this question focuses attention on how the massive incidence of extreme poverty and violence in the world today might be reduced not merely through better government behavior, internally and internationally, but also, and much more effectively, through global institutional reforms that would, among other things, elevate such government behavior by modifying the options governments have and the incentives they face. |
Follesdal, Andreas; Pogge, Thomas: Real World Justice: Grounds, Principles, Human Rights, and Social Institutions. Springer, Doordrecht, 2005. (Type: Book | Abstract | Links | Tags: Edited books, Human Rights, Publications)@book{RN40530,The volume addresses four main topics regarding global justice: the grounds for moral claims about the global institutional order, substantive normative principles for a legitimate such order, the role of legal human rights standards, and ideas for reshaping global social institutions so as to render them less unjust. Contributors: 1 Introduction Andreas Follesdal and Thomas Pogge 2 Poverty and Global Justice: Some Challenges Ahead Hilde F. Johnson 3 Justice, Morality and Power in the Global Context Rainer Forst 4 “Saving Amina”: Global Justice for Women and Intercultural Dialogue Alison M. Jaggar 5 Poverty as a Human Rights Violation and the Limits of Nationalism Geert Demuijnck 6 International or Global Justice? Evaluating the Cosmopolitan Approach Thomas Mertens 7 Understanding and Evaluating the Contribution Principle Christian Barry 8 World Poverty and Moral Responsibility Ser-Min Shei 9 The Principle of Subsidiarity Stefan Gosepath 10 “It’s the Power, Stupid!” On the Unmentioned Precondition of Social Justice Alessandro Pinzani 11 Egalitarian Global Distributive Justice or Minimal Standard? Pogge’s Position .Véronique Zanetti 12 Responsibility and International Distributive Justice Alexander Cappelen 13 From Natural Law to Human Rights — Some Reflections on Thomas Pogge and Global Justice Henrik Syse 14 Deliberation or Negotiation? Remarks on the Justice of Global and Regional Human Rights Agreements Regina Kreide 15 Human Rights and Relativism Andreas Follesdal 16 The Nature of Human Rights Leif Wenar 17 Severe Poverty as a Human Rights Violation — Weak and Strong Wilfried Hinsch and Markus Stepanians 18 The First UN Millennium Development Goal: A Cause for Celebration? Thomas Pogge 19 Can Global Distributive Justice be Minimalist and Consensual? Jean-Christophe Merle 20 Redistributing Responsibilities — The UN Global Compact with Corporations . Andrew Kuper |
Micheletti, Michele; Follesdal, Andreas; Stolle, Dietlind: Introduction: The Market as a Site of Politics. In: Micheletti, Michele; Follesdal, Andreas; Stolle, Dietlind (Ed.): Politics, products and markets: Exploring political consumerism past and present, pp. ix-xxvi, Transaction Press, New Brunswick, N.J., 2004. (Type: Book Chapter | Abstract | Tags: Human Rights)@inbook{RN38130,.This volume examines closely the roots and contemporary forms of the phenomenon of political consumerism. The United Nations, Amnesty International, and other international governmental and nongovernmental organizations claim openly that they must rely on market actors to accomplish their goals. … In recent decades, consumers’ product choice has been increasingly influenced by a growing concern for transnational and global issues of justice, care for the dnvironment, and human rights. Global movements and networks help mobilize consumers to make political and ethical purchases. … Part I, entitled “Making Money Morally,” concerns why it may appear controversial to call upon market actors to act in a morally responsible way. …political consumerism challenges the traditional division of private interest pursued by private actors in the market, and public interests pursued through political means. It crosses over this division in its attempts to compensate for ethical unfairness in a variety of ways. Yet the practices of political consumption also create new dilemmas often ignored by consumers. Andreas Føllesdal explores philosophically why we need to concern ourselves with the moral responsibility of the market in the world today….Among his concerns is the development of normative criteria for assessing the legitimacy of political consumer action in the global marketplace that aims at supplementing governmental regulation. He wonders how these citizen watchdogs can develop and maintain their credibility and integrity in the absence of global, institutionalized checks and balances. Paul Kennedy’s chapter focuses on the impact of political consumers on business. He asks what happens to business as a market actor once it adapts itself to more ethical and political concerns. .. Part II, entitled “Consumer Choices and Setting the Agenda of Politics,” focuses on three basic questions …: what is new about using the market as a site for politics, how effective is it, and does it always promote good causes? …Monroe Friedman discusses in his chapter three important criteria for evaluating consumer boycotts: their successfulness, effectiveness, and ethical quality…. Cheryl Greenberg’s chapter draws on American history .. . there is nothing inherent in political consumerism that guarantees the moral respectability of its pursued goals, and that good motives do not replace the need for strategic planning…. David Vogel’s chapter also draws on the United States. to show how outraged Americans have expressed their concern over political injustices in the marketplace. …citizens with clear political preferences can use their economic power to pressure corporations to consider ethical issues as part of their policy agenda. Part II moves from historical cases ..W. Lance Bennett’s and Jonah Peretti’s chapters make clear how the media play an important role in mobilizing support for large campaigns that criticize existing corporate practices. Bennett focuses on campaigns directed at large, globalized corporate enterprises. … Jonah Peretti’s chapter, together with Michele Micheletti, describes Peretti’s request to order a pair of customized Nike shoes with the name ”sweatshop” on them, turned him into a global celebrity… “Building Responsible Institutions in Multi-Risk Society” is the title of Part III, with the establishment of new political consumerist institutions as the central theme…. Franck Cochoy’s chapter shows how the old and established institution of standardization, .. has revamped itself into an institution for product certification that reflects consumers’ concerns…. The chapter co-authored by Andrew Jordan, Rüdiger Wurzel, Anthony R. Zito, and Lars Brückner offers a comparative assessment of the important national eco-labeling schemes now in operation in Europe. .Two important ingredients of success are consumer support and market competition. …Benjamin Cashore, Graeme Auld, and Deanna Newson discuss a labeling scheme of increasing importance: forest certification schemes…. Part IV, “Politicizing Consumers and Change in Politics,”… political participation has involved the relationship between citizens and their government, which in turn regulates the market. … Jørgen Goul Andersen and Mette Tobiasen present findings from the most comprehensive survey investigation of political consumers to date. Bente Halkier’s chapter uses focus group interviews of green consumers to assess the extent to which political consumerism involves important dimensions of political participation…. Michele Micheletti’s study … shows that women were and still are more present as political consumers…. Dietlind Stolle and Marc Hooghe’s chapter focuses more directly on the controversial issue of whether political consumerism can be seen as a successful additional tool in political life that might substitute for the lack of traditional political involvements. … |
Micheletti, Michele; Follesdal, Andreas; Stolle, Dietlind: Politics, products and markets: Exploring political consumerism past and present. Transaction Press, New Brunswick, N.J., 2004. (Type: Book | Abstract | Links | Tags: Edited books, Human Rights)@book{RN32700,This volume examines closely the roots and contemporary forms of the phenomenon of political consumerism. The United Nations, Amnesty International, and other international governmental and nongovernmental organizations claim openly that they must rely on market actors to accomplish their goals. … In recent decades, consumers’ product choice has been increasingly influenced by a growing concern for transnational and global issues of justice, care for the dnvironment, and human rights. Global movements and networks help mobilize consumers to make political and ethical purchases. … Part I, entitled “Making Money Morally,” concerns why it may appear controversial to call upon market actors to act in a morally responsible way. …political consumerism challenges the traditional division of private interest pursued by private actors in the market, and public interests pursued through political means. It crosses over this division in its attempts to compensate for ethical unfairness in a variety of ways. Yet the practices of political consumption also create new dilemmas often ignored by consumers. Andreas Føllesdal explores philosophically why we need to concern ourselves with the moral responsibility of the market in the world today….Among his concerns is the development of normative criteria for assessing the legitimacy of political consumer action in the global marketplace that aims at supplementing governmental regulation. He wonders how these citizen watchdogs can develop and maintain their credibility and integrity in the absence of global, institutionalized checks and balances. Paul Kennedy’s chapter focuses on the impact of political consumers on business. He asks what happens to business as a market actor once it adapts itself to more ethical and political concerns. .. Part II, entitled “Consumer Choices and Setting the Agenda of Politics,” focuses on three basic questions …: what is new about using the market as a site for politics, how effective is it, and does it always promote good causes? …Monroe Friedman discusses in his chapter three important criteria for evaluating consumer boycotts: their successfulness, effectiveness, and ethical quality…. Cheryl Greenberg’s chapter draws on American history .. . there is nothing inherent in political consumerism that guarantees the moral respectability of its pursued goals, and that good motives do not replace the need for strategic planning…. David Vogel’s chapter also draws on the United States. to show how outraged Americans have expressed their concern over political injustices in the marketplace. …citizens with clear political preferences can use their economic power to pressure corporations to consider ethical issues as part of their policy agenda. Part II moves from historical cases ..W. Lance Bennett’s and Jonah Peretti’s chapters make clear how the media play an important role in mobilizing support for large campaigns that criticize existing corporate practices. Bennett focuses on campaigns directed at large, globalized corporate enterprises. … Jonah Peretti’s chapter, together with Michele Micheletti, describes Peretti’s request to order a pair of customized Nike shoes with the name ”sweatshop” on them, turned him into a global celebrity… “Building Responsible Institutions in Multi-Risk Society” is the title of Part III, with the establishment of new political consumerist institutions as the central theme…. Franck Cochoy’s chapter shows how the old and established institution of standardization, .. has revamped itself into an institution for product certification that reflects consumers’ concerns…. The chapter co-authored by Andrew Jordan, Rüdiger Wurzel, Anthony R. Zito, and Lars Brückner offers a comparative assessment of the important national eco-labeling schemes now in operation in Europe. .Two important ingredients of success are consumer support and market competition. …Benjamin Cashore, Graeme Auld, and Deanna Newson discuss a labeling scheme of increasing importance: forest certification schemes…. Part IV, “Politicizing Consumers and Change in Politics,”… political participation has involved the relationship between citizens and their government, which in turn regulates the market. … Jørgen Goul Andersen and Mette Tobiasen present findings from the most comprehensive survey investigation of political consumers to date. Bente Halkier’s chapter uses focus group interviews of green consumers to assess the extent to which political consumerism involves important dimensions of political participation…. Michele Micheletti’s study … shows that women were and still are more present as political consumers…. Dietlind Stolle and Marc Hooghe’s chapter focuses more directly on the controversial issue of whether political consumerism can be seen as a successful additional tool in political life that might substitute for the lack of traditional political involvements. … |
Follesdal, Andreas: Corporate Social Responsibility for Human Rights as Chance and Challenge: Fragments of a Political Theory. 2004. (Type: Unpublished | Tags: Human Rights, Publications, SRI – Socially responsible investing)@unpublished{RN35150, |
Føllesdal, Andreas: Menneskerettigheter og normativ politisk teori: Premisser og paradokser. In: Mennesker og rettigheter, vol. 19, no. 1, pp. 59-65, 2001. (Type: Journal Article | Tags: Human Rights)@article{RN29330, |
Follesdal, Andreas: Global ethics and respect for culture. In: Hughes, Cheryl; Hudson, Yeager (Ed.): Cultural integrity and world community, pp. 3-24, Edwin Mellen, Lewiston, NY, 2000. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN23970,A plausible normative political theory must stake a course that on the one hand explains the value of existing cultures, and at the same time defends some limits on toleration. The need for such an account is apparent in two recent statements. The report from UNESCO’s World Commission on Culture and Development, Our Creative Diversity, reveals some dilemmas concerning how to regard cultures which are incompatible with human rights. The Bangkok Declaration of 1993 gave rise to a debate about “Asian values”, concerning whether universal human rights are contrary to Asian culture. These dilemmas pose important questions about the normative value of existing cultures and the plausibility of universal rights — and whether such accounts can be provided without relying on objectionably ‘Western’ premises. The paper sketches some aspects of such a theory, drawing on a conception of liberal contractualism that does not regard individuals as fundamentally autonomous. The main focus is the proper grounds and scope of protection of culture, accounting for the normative significance of local cultural belonging. It is argued that Kymlicka’s and O’Neill’s valuable contributions rely on a conception of the individual considered as agent, with a strong interest in holding open possibilities of choice. This assumption may be avoided by exploring the role of culture in shaping expectations, thus deflecting the criticism of a Western bias. If this account is accepted, it suggests that at least three issues in UNESCOs report require clarification: – The value of culture need not be based on a conception of persons as centrally concerned with autonomy. – The reasons for valuing culture may not require that pluralism must be lauded. – The endorsement of corporatism requires further argument. |
Føllesdal, Andreas: Menneskerettigheter og ulike verdisyn: Vestlige mot asiatiske verdier? Gunnerusforelesningen 1999. In: Det Kongelige Norske Videnskabers Selskab Forhandlinger, pp. 105-121, Trondheim, 2000. (Type: Book Chapter | Abstract | Tags: Human Rights)@inbook{RN24100,Få stater vedstår seg at de systematisk og bevisst setter menneskerettighetene til side. Bangkokerklæringen av 1993 brøt med denne offisielle linjen. I denne erklæringen avviste flere land de sivile og politiske menneskerettigheter, som uforenelige med “asiatiske verdier”. Utenlandske protester ble også avvist som brudd på staters rett til selvstyre. Foredraget drøfter og imøtegår Bangkokerklæringens kritikk. Flere tolkninger av innvendingene mot de internasjonale menneskerettighetene blir identifisert. Disse anklagene blir så vurdert med utgangspunkt i teorier om menneskerettighetenes begrunnelse og innhold. Det påståtte skillet mellom asiatiske og vestlige kulturer må avvises, og få innvendinger mot menneskerettighetene kan opprettholdes. De innvendingene som gjenstår forkaster ikke menneskerettighetene, men støtter kanskje noen menneskerettighetsteorier fremfor andre. Menneskerettighetene kan derfor ikke avvises som uforsvarlig vestlig ideologisk imperialisme. Few states admit that they systematically and deliberately violate international human rights. The Bangkok Declaration of 1993 ended this public consensus. In this declaration several Asian states argued that civil and political human rights must be set aside insofar as they are incompatible with “Asian values”. Foreign protests against human rights were also dismissed as violating states’ sovereignty. The lecture discusses and rebuts the criticism raised in the Bangkok Declaration. Several objections against international human rights are identified and assessed on the basis of theories of human rights. Claims to thorough-going differences between Asian and Western cultures do not stand against criticisms, and few objections against human rights can be maintained. The remaining objections do not invalidate human rights, but support some justifications for human rights rather than others. Thus human rights cannot be dismissed as objectionable exercises of Western ideological imperialism. |
Follesdal, Andreas: Sustainable Development, State Sovereignty and International Justice. In: Lafferty, William M.; Langhelle, Oluf (Ed.): Sustainable development: On the aims of development and conditions of sustainability, pp. 70-83, Macmillan, Houndsmills, 1999. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN24060,The present paper seeks to elaborate and justify the priority of basic needs over environment and sovereignty. This thesis, the Primacy of Human Rights, holds that development strategies should secure the basic needs for today’s poor through respecting human rights – if necessary at the expense of protecting the environment. Moreover, such development strategies may require international aid with ties, contrary to traditional conceptions of state sovereignty. Section 2 outlines aspects of a theory of justice providing a systematic perspective for addressing these concerns. Section 3 defends the Primacy of Human Rights for development strategies. Section 4 addresses the conflicts between human rights and development, while section 5 discusses conflicts regarding human rights and sovereignty. Industrialised countries have obligations towards developing countries if necessary for ecologically justifiable development strategies that also respect human rights. But international aid need not be unconditional: It may be necessary to influence internal conditions in developing countries through economic pressure. Section 6 reflects on some principled objections against the Primacy of Human Rights. We consider an alternative, the Primacy of the Environment, sometimes argued by deep ecologists, which holds that environmental concerns should be of primary importance in the choice of development strategies, and if necessary at the expense of today’s poor. A complete rebuttal of this view is beyond the scope of this paper. The aim is rather to identify the areas of disagreement. |
Follesdal, Andreas: Democracy, legitimacy and majority rule in the EU. In: Weale, Albert; Nentwich, Michael (Ed.): Political Theory and the European Union: Legitimacy, constitutional choice and citizenship, pp. 34-48, Routledge, London, 1998. (Type: Book Chapter | Abstract | Links | Tags: Democratic theory, EU – European Union, Human Rights, Publications)@inbook{RN16220,When it is said that the European Union has suffered from a democratic deficit, the term ‘democracy’ is used to lament several separate lacunas. The aim of the present paper is to explore the relations between two of the senses in which ‘democracy’ is said to have been missing in the European Union.Democracy as Legitimacy: Institutions, as all other rules that regulate behaviour, should be legitimate in several senses. We are only morally obligated to obey normatively legitimate institutions. That is: they must be justifiable to the ‘demos’, to all affected parties. Normative legitimacy requires a presentation and justification of such principles of legitimacy for the European Union, as well as transparency of its institutions. Only then can the public assess whether principles of legitimacy are satisfied. At present, we have neither such a theory of justice, nor the requisite transparency. Democracy as Majority Rule: ‘Democracy’ is also used to describe the decision procedures of institutions whereby the preference of the majority of the electorate determines the result. Suggestions abound that the institutions should be changed to increase the role of majority rule as a central structure for citizen participation. The precise relations and implications between these two senses of democracy – of normative legitimacy and of majority rule – are contested and obscure.The aim of this paper is to explore these relations from a particular contractualist perspective, addressing some specific issues regarding the relevance of consent, and indicating how this approach frames the practical arguments about institutional reform witnessed in the Amsterdam Treaty and beyond. Section 1 provides a sketch of a Liberal Contractualist theory of normative legitimacy. Section 2 brings this perspective to bear on claims to majoritarian mechanisms, and section 3 considers some contractualist constraints on majority rule. In conclusion I note how the contested ends of the European Union are central to a satisfactory resolution of these issues. As long as the explicit aim of the union was economic, increased efficiency was easily interpreted as Pareto-improvements within a utilitarian setting. The task of the European Union was previously predominantly to secure peace and stability through free markets, leaving matters of distribution and authority aside, in accordance with standard (though by no means uncontroversial) economic theory. The European Union now has much broader political aspirations. Its objectives, criteria of efficiency, and the role of majoritarian mechanisms must be reconsidered accordingly. The choice of means become more important as economic benefit is supplemented by other political goals. Transparency and the rule of law, majority rule, distributive justice, and human rights all become central issues. They cannot be regarded merely as ideals to be pursued on a par with economic efficiency, but are conditions of justice if the European Union indeed is to become and appear legitimate. |
Follesdal, Andreas: Minority Rights: A Liberal Contractualist Case. In: Raikka, Juha (Ed.): Do We Need Minority Rights? Conceptual Issues, pp. 59-83, Kluwer Law International, The Hague, 1996. (Type: Book Chapter | Abstract | Links | Tags: Human Rights)@inbook{RN16130,This article seeks to bring liberal contractualism to bear on some of the philosophical issues raised by the claims regarding cultural protection by minorities in Europe. The aim is to explore what our commitment to equal respect entails with regards to legal protection and promotion of minority cultures. Section 1 presents some of the central philosophical and practical challenges facing such a normative theory of cultural rights: aThe interests in culture, bScope of toleration for groups, cThe significance of choice of minority status, dThe case for human rights protecting minority culture. Section 2 sketches a liberal contractualist perspective regarding the value of cultural membership within a liberal framework. Section 3 develops some responses to the philosophical issues. I suggest that we may insist on the value of cultural membership, and in particular that individuals have an interest in controlling cultural change. However, this interest does not support claims that institutions must ensure equal contexts of choice for all citizens. Equal capabilities or opportunities of this kind is beyond what justice requires, partly due to problems of measurability. However, the interest in controlling cultural change may in principle ground rights of several kinds. – rights may be needed to provide a threshold of legal protections enabling minorities to explore, share and convey their culture to each other. Examples may include parents’ right to teach their children about their culture, their language and their religion. – rights may be needed to protect a culture from undue outside forces with regards to change and development. Such rights may prohibit government interference in internal minority affairs except to protect individuals’ human rights. In other circumstances, minority representation on political bodies may be appropriate, particularly because the conflicts can arise in unpredictable ways. – Transparency regarding the use of government discretion is often important. Minorities’ interests may support a requirement that governments develop a public policy regarding treatment of minorities, or that the government funds impact statements to discover harmful effects on minorities’ culture. Thus one might argue that states should have international reporting obligations concerning the institutions that regulate minority cultures. Such obligations provide domestic minorities with leverage against governmental abuses. International audiences and public expressions of commitments reduce the risks that a government will abuse its domestic authority. Reporting also provides states of good will with a forum for receiving constructive suggestions about institutional design. |
Follesdal, Andreas: Justifying human rights: the challenge of cross-cultural toleration. In: European Journal of Law, Philosophy and Computer Science, vol. 4, pp. 37-48, 1995. (Type: Journal Article | Abstract | Links | Tags: Human Rights)@article{RN14510,How should universal human rights be justified in a world system of sovereign states, characterized by incompatible modes of life and religious and philosophical traditions? Human rights face a double challenge: they appear to violate the norm of state sovereignty, and they seem difficult to justify under value pluralism, across deep cross-cultural differences — forcing us to consider whether they are intolerant, “Eurocentric” attempts at reforming all nation states. Based on reflections about why we need a theory of human rights, the paper argues that a justification for human rights need not be acceptable to all existing states: there are justifiable limits of toleration. A satisfactory justification, giving sufficient clarity regarding human rights, can build upon overlapping consensus among those world views which respect each other, and which include a commitment to the equal worth of all citizens. However, human rights need not be based on the intrinsic worth of individuals’ autonomy, and can in principle include group rights such as the right to development. Human rights are justified as requirements of domestic and international legal safeguards of the basic needs of individuals, against certain standard threats posed by state power and the system of states. This account allows for the universality of human rights, and can respond to the challenge of toleration. Based on Føllesdal 1992: “Hvordan begrunne menneskerettighetene?” |
Føllesdal, Andreas: Hvordan begrunne menneskerettighetene?. In: Mennesker og rettigheter, vol. 10, no. 3, pp. 258-268, 1992. (Type: Journal Article | Abstract | Tags: Human Rights)@article{RN8530,Kan internasjonale menneskerettigheter begrunnes i en verden av stater, preget av uforenelige livssyn? Menneskerettighetene truer normen om suverene stater. Dype tverrkulturelle konflikter, blant annet om individets verdi, illustrerer denne spenningen. ønsket om å begrunne og presisere menneskerettighetene øker motsetningen mellom disse rettighetene og ønsket om å respektere ulike kulturer. En begrunnelse for menneskerettighetene som alle kan akseptere er ikke oppnåelig, men heller ikke nødvendig. En tilfredsstillende begrunnelse som gir oss tilstrekkelig klarhet om menneskerettighetenes innhold kan bygge på overlappende enighet mellom de livssyn som respekterer annerledes tenkende. Ut fra dette perspektivet fremstår menneskerettighetene som krav om lovfestede beskyttelser av individenes grunnbehov mot de trusler statsmakten og verdenssamfunnet representerer. |
Follesdal, Andreas: Human worth and human rights based on John Rawls’ contractualism. In: Wetlesen, Jon (Ed.): Menneskeverd: Humanistiske Perspektiver, pp. 109-127, Universitetet I Oslo, Oslo, 1992. (Type: Book Chapter | Abstract | Links | Tags: Human Rights, John Rawls)@inbook{RN9250,I sketch how international human rights can be understood and be justified on the basis of human worth within a contractualist perspective similar to that presented in John Rawls’ theory of domestic distributive justice. The present sketch addresses the subject of the relationship between states, and the role of human rights in that regard (cf. Follesdal 1991 for a more elaborate presentation.) I shall be particularly concerned to show that the contractualist tradition, which emphasizes human worth and certain institutional kinds of equality among citizens, nevertheless can permit larger economic inequalities among individuals of different states. |
Publications
| : In defense of deference: International human rights as standards of review. In: Journal of Social Philosophy, vol. 54, no. 4, pp. 526-547, 2023. |
| : Add international courts to The Idea of Human Rights and stir … on Beitz’ The Idea of Human Rights after 10 years. In: Álvarez, David; Rosas, João Cardoso (Ed.): The Idea of Human Rights Revisited: Charles Beitz and the Political Turn in the Philosophy of Human Rights, Routledge, 2023. |
| : Add international courts to The Idea of Human Rights and stir … on Beitz’ The Idea of Human Rights after 10 years. In: Critical Review of International Social and Political Philosophy, vol. 25, no. 1, pp. 66-86, 2022. |
| : International human rights courts and the (international) rule of law: Part of the solution, part of the problem, or both?. In: Global Constitutionalism, vol. 10, no. 1, pp. 118-138, 2021. |
| : Gender imbalance on the international bench: is normative legitimacy at stake?. In: Journal of Social Philosophy, vol. 52, no. 4, pp. 430-435, 2021. |
| : Religion and the State – the European Court of Human Rights and the ‘Lautsi’ case of the European Court of Human Rights about crucifixes in Italian class rooms. In: Ehlers, Dirk; Glaser, Henning (Ed.): State and Religion: Between Conflict and Cooperation, pp. 315 – 330, Nomos, Baden Baden, 2020. |
| : The European Convention on Human Rights and other parts of international law. In: International Journal on Human Rights, vol. 24, no. 7, pp. 913-16, 2020. |
| : The Relationship Between the European Convention on Human Rights and Wider International Law – Special Issue. International Journal on Human Rights, 2020. |
| : A better Signpost, not a better walking Stick: How to evaluate the European Consensus doctrine. In: Kapotas, Panos; Tzevelokos, Vassilis (Ed.): Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond, pp. 189-209, Cambridge University Press, Cambridge, 2019. |
| : Legitimacy criticisms of international courts: Not only Fuzzy Rhetoric?. In: Sadurski, Wojciech; Sevel, Michael; Walton, Kevin (Ed.): Legitimacy: The State and Beyond, pp. 223-237, Oxford University Press, Oxford, 2019. |
| : Politikk og menneskerettigheter. Aschehoug, Oslo, 2018. |
| : Appreciating the Margin of Appreciation. In: Etinson, Adam (Ed.): Human Rights: Moral or Political?, pp. 269-294, Oxford University Press, Oxford, 2018. |
| : The Performance of International Courts and Tribunals. Cambridge University Press, Cambridge, 2018, ((i) the IC’s output: its judgments and interpretations; (ii) its outcome in the sense of states’ compliance with particular judgments; and (iii) the ultimate broader impact of such compliance on the ground.). |
| : Exporting the Margin of Appreciation: Lessons for the Inter-American Court of Human Rights?. In: International journal of constitutional law, vol. 15, no. 2, pp. 359-371, 2017. |
| : Independent yet Accountable: Stress Test Lessons for the European Court of Human Rights. In: Maastricht Journal of European and Comparative Law, vol. 24, no. 4, pp. 484-510, 2017. |
| : Theories of Human Rights: Political or Orthodox – why it matters. In: Maliks, Reidar; Karlsson, Johan Schaffer (Ed.): Moral and Political Conceptions of Human Rights: Implications for Theory and Practice, pp. 77-96, Cambridge University Press, Cambridge, 2017. |
| : De internasjonale menneskerettighetene og Norge: Spenninger og samspill. In: Føllesdal, Andreas; Ruud, Morten; Ulfstein, Geir (Ed.): Menneskerettighetene og Norge: Rettsutvikling, rettsliggjøring og demokrati, pp. 13-32, Universitetsforlaget, Oslo, 2017. |
| : The International Human Rights Judiciary and National Parliaments: Europe and Beyond. Cambridge University Press, Cambridge, 2017. |
| : Law making by law breaking? A theory of parliamentary civil disobedience against international human rights courts. In: Saul, Matthew; Follesdal, Andreas; Ulfstein, Geir (Ed.): The International Human Rights Judiciary and National Parliaments: Europe and Beyond, pp. 329-352, Cambridge University Press, Cambridge, 2017. |
| : Democracy and regional human rights courts. In: International Journal of Constitutional Law, vol. 15, no. 2, pp. 358, 2017. |
| : Tracking justice democratically. In: Social Epistemology, vol. 31, no. 3, pp. 324-339, 2017. |
| : Democracy and regional human rights courts: Enemies, allies, or both? Symposium. International Journal of Constitutional Law, 2017. |
| : The European Court of Human Rights and national courts: a constitutional relationship?. In: Arnardóttir, Oddný Mjöll; Buyse, Antoine (Ed.): Shifting Centres of Gravity in Human Rights Protection, pp. 46-56, Routledge, London, 2016. |
| : The margin of appreciation in Europe and beyond – Special Issue. The International Journal of Human Rights, 2016. |
| : 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: Arnardóttir, Oddný Mjöll; Buyse, Antoine (Ed.): Shifting Centres of Gravity in Human Rights Protection: Rethinking Relations between the ECHR, EU, and National Legal Orders, pp. 189-204, Routledge, London, 2016. |
| : Subsidiarity and international human rights courts: respecting self-governance and protecting human rights – or neither?. In: Law and Contemporary Problems, vol. 79, no. 2, pp. 147-163, 2016. |
| : Subsidiarity to the Rescue for the European Courts? Resolving tensions between the Margin of Appreciation and Human Rights Protection. In: Heidemann, Dietmar; Stoppenbrink, Katja (Ed.): Join, or Die – Philosophical Foundations of Federalism, pp. 251-272, de Gruyter, Berlin, 2016. |
| : The margin of appreciation in Europe and beyond. In: The International Journal of Human Rights, vol. 20, no. 8, pp. 1055-1057, 2016. |
| : Building democracy at the bar: The European Court of Human Rights as an agent of transitional cosmopolitanism. In: Transnational Legal Theory, no. special issue, ed. Claudio Corradetti, pp. 95-113, 2016. |
| : Fragmentation in International Human Rights Law: Beyond Conflicts of Laws. Routledge, London, 2015. |
| : International Human Rights Courts: Beyond a State of Nature – Foreword. In: Ajevski, Marjan (Ed.): Fragmentation in International Human Rights Law: Beyond Conflicts of Laws, pp. xi-xviii, Routledge, London, 2015. |
| : Curb, Channel and Coordinate: The Constitutionalisation of International Courts and Tribunals. In: Baere, Geert De; Wouters, Jan (Ed.): The Contribution of International and Supranational Courts to the Rule of Law, pp. 355-369, Elgar Publishing, Cheltenham, 2015. |
| : The Principle of Subsidiarity as a constitutional principle in the EU and Canada. In: Les Ateliers de l’Éthique/The Ethics Forum, vol. 10, no. 2, pp. 89-206, 2015. |
| : Global Citizenship. In: Sterri, Aksel Braanen (Ed.): Global Citizen – Challenges and Responsibility in an Interconnected World, pp. 71-82, Sense, Rotterdam, 2014. |
| : Subsidiarity and the global order. In: Zimmermann, Augusto; Evans, Michelle (Ed.): Global Perspectives on Subsidiarity, pp. 207-220, Springer, Dordrecht, 2014. |
| : The European Court of Human Rights and the Norwegian Supreme Court – Independence and Democratic Control. In: Engstad, Nils Asbjørn; Frøseth, Astrid Lærdal; Tønder, Bård (Ed.): The Independence of Judges, pp. 247-260, Eleven, 2014. |
| : Kantian theory and human rights. In: Follesdal, Andreas; Maliks, Reidar (Ed.): Kantian theory and human rights, pp. 1-7, Routledge, 2014. |
| : Legitimacy Challenges and what to do about them – Accountability and authority of the European Court of Human Rights. In: Proceedings of Conference on the Long-term future of the European Court of Human Rights, pp. 78-85, 2014. |
| : Kantian theory and human rights. Routledge, 2014. |
| : Engagement, divestment, or both? Conflicts and interactions: The case of the Norwegian Pension Fund. In: Bohoslavsky, Juan Pablo; Cernic, Jernej Letnar (Ed.): Sovereign Financing, pp. 323-336, Hart, Oxford, 2014. |
| : Federalism and Human Rights in Nepal’s Constitutional Design: Challenges for the Judiciary. In: Ehlers, Dirk; Glaser, Hennig; Prokati, Kittisak (Ed.): Constitutionalism and good governance: Western and Eastern perspectives, vol. 1, pp. 193-203, Nomos, Baden Baden, 2014. |
| : Competing Conceptions of Subsidiarity. In: Fleming, James E.; Levy, Jacob T. (Ed.): Nomos LV: Federalism and Subsidiarity, pp. 214-230, New York University Press, New York, 2014. |
| : Kant, Human Rights, and Courts. In: Follesdal, Andreas; Maliks, Reidar (Ed.): Kantian theory and human rights, pp. 193-202, Routledge, 2014. |
| : Subsidiarity and the global order. In: Zimmermann, Augusto; Evans, Michelle (Ed.): Global Perspectives on Subsidiarity, pp. 207-220, Springer, Dordrecht, 2014. |
| : The Legitimacy Deficits of the Human Rights Judiciary: Elements and Implications of a Normative Theory. In: Theoretical Inquiries in Law, vol. 14, no. 2, pp. 339-360, 2013. |
| : Much ado about Nothing? International Judicial Review of Human Rights in Well Functioning Democracies. In: Follesdal, Andreas; Schaffer, Johan; Ulfstein, Geir (Ed.): The Legitimacy of International Human Rights Regimes, pp. 272-299, Cambridge University Press, Cambridge, 2013. |
| : International human rights and the challenge of legitimacy. In: Follesdal, Andreas; Schaffer, Johan; Ulfstein, Geir (Ed.): The Legitimacy of International Human Rights Regimes, pp. 1-30, Cambridge University Press, Cambridge, 2013. |
| : Conclusions. In: Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir (Ed.): Constituting Europe: The European Court of Human Rights in a National, European and Global Context, pp. 389-402, Cambridge University Press, Cambridge, 2013. |
| : Constituting Europe: The European Court of Human Rights in a national, European and global context. Cambridge University Press, Cambridge, 2013. |
| : Introduction. In: Follesdal, Andreas; Peters, Birgit; Ulfstein, Geir (Ed.): Constituting Europe: The European Court of Human Rights in a National, European and Global Context, pp. 1-24, Cambridge University Press, Cambridge, 2013. |
| : The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives. Cambridge University Press, Cambridge, 2013. |
| : Fragile Democracies, Strong Human Rights Courts? Comparing European and Inter-American Cases. In: Nordic Journal of Human Rights, vol. 31, no. 4, pp. 471-476, 2013. |
| : Global Distributive Justice? State Boundaries as a Normative Problem. In: Global Constitutionalism, vol. 1, no. 2, pp. 261-277, 2012. |
| : Kata pengantar [Preface]. In: Rizki, Rudi M. (Ed.): Violations of Human Rights by transnational corporations and the effort to hold them accountable, pp. vii-ix, Penerbit PT Fikahati Aneska, Jakarta, 2012. |
| : Er internasjonal menneskerettighetsprøving legitim?. In: Nytt norsk tidsskrift, no. 1, pp. 71-80, 2011. |
| : Federalism, Ethnicity and Human Rights in Nepal – Or: Althusius meets Acharya. In: International Journal of Minority and Group Rights, vol. 18, no. 3, pp. 335-342, 2011. |
| : Human Rights Investment Filters: A defense. In: Follesdal, Andreas; Mestad, Ola; Nystuen, Gro (Ed.): Human Rights, Corporate Complicity and Disinvestment, pp. 132-155, Cambridge University Press, Cambridge, 2011. |
| : Introduction. In: Nystuen, Gro; Follesdal, Andreas; Mestad, Ola (Ed.): Human Rights, Corporate Complicity and Disinvestment, pp. 1-15, Cambridge University Press, Cambridge, 2011. |
| : Human Rights, Corporate Complicity and Disinvestment. Cambridge University Press, Cambridge, 2011. |
| : Universal Human Rights as a Shared Political Identity: Impossible? Necessary? Sufficient?. In: Tinnevelt, Ronald; Schutter, Helder (Ed.): Global Democracy and Exclusion, pp. 161-176, Whiley-Blackwell, Chichester, 2010. |
| : The legitimacy of international human rights review: The case of the European Court of Human Rights. In: Journal of Social Philosophy, vol. 40, no. 4, pp. 595-607, 2009. |
| : Methods of Philosophical Research on Human Rights. In: Coomans, Fons; Kamminga, Menno; Grunfeld, Fred (Ed.): Methods of Human Rights Research, Intersentia, Antwerp, 2009. |
| : Universal Human Rights as a Shared Political Identity: Impossible? Necessary? Sufficient?. In: Metaphilosophy, vol. 40, no. 1, pp. 65-76, 2009, (Special issue on global democracy and global exclusion). |
| : Why the European Court of Human Rights might be Democratically Legitimate – A Modest Defense. In: Nordic Journal of Human Rights, vol. 27, no. 2, pp. 289-303, 2009. |
| : Judicial Review in the Nordic Countries – Special Issue. 2009. |
| : Human Rights: Normative Requirements and Institutional Constraints – Special Issue. Journal of Social Philosophy, 2009. |
| : Introduction: Nordic Reluctance towards Judicial Review under Siege. In: Nordic Journal of Human Rights, vol. 27, no. 2, pp. 131-141, 2009. |
| : Politikk og menneskerettigheter. Aschehoug, Oslo, 2008. |
| : International Judicial Human Rights Review – Effective, Legitimate or Both?. In: Sihvola, Juha; Korkman, Peter; Mäkinen, Virpi (Ed.): Universalism in International Law and Political Philosophy, COLLeGIUM, Helsinki, 2008. |
| : Menneskerettighetenes verdigrunnlag. In: Bergesen, Helge Ole; Ryssevik, Jostein; Føllesdal, Andreas; Heir, Marianne (Ed.): Politikk og menneskerettigheter, Chapter 1, pp. 8-31, Aschehoug, Oslo, 2008. |
| : How to Organize Democracy in Multi-level and Multi-cultural States: Can it be done? Should it be done? [In Chinese]. In: Hong, Zhou; Kohler-Koch, Beate (Ed.): EU Governance Model, pp. 102-126, Social Science Academy Press Chinese Academy of Social Science, Beijing, 2008. |
| : Human Rights, Democracy and Federalism – part of the problem or part of the solution? Securing stability in the European Union and the People’s Republic of China. In: Current Politics and Economics of Asia, vol. 17, no. 1, pp. 211-236, 2008. |
| : On accountability and legitimacy in the EU: Facing the issue of Assurance. In: NEWGOV Cluster Documents – DTF – D08, 2008. |
| : Why international human rights judicial review might be democratically legitimate. In: Scandinavian Studies in Law, vol. 52, pp. 103-122, 2007. |
| : Shopping for Human Rights. An introduction to the Special Issue. In: Journal of Consumer Policy – Shopping for human rights – special issue, vol. 30, no. 3, pp. 167-175, 2007. |
| : Ethical Investment and Human Rights: A Norwegian Case. In: Nordic Journal on Human Rights, vol. 25, no. 4, pp. 420-433, 2007. |
| : Shopping for human rights – Special issue. Journal of Consumer Policy, 2007. |
| : Minority and group rights to accommodate difference: approaches and applications. In: International Journal on minority and group rights, vol. 13, no. 2-3, pp. 131-139, 2006. |
| : Why the EU does not need a uniform approach to Human Rights. In: Melchior, Josef (Ed.): New Spaces of European Governance, Facultas, Vienna, 2006. |
| : Do minority and group rights promote just stability in non-unitary political orders? A Research Agenda. In: International Journal on minority and group rights, vol. 13, no. 2-3, pp. 141-152, 2006. |
| : Between Petros and a Hard Place? Human Rights to Religious Liberty or to Gender Equality in Europe. In: Børresen, Kari; Cabibbo, Sara (Ed.): Gender, Religion, Human Rights in Europe, pp. 63-83, Herder, Rome, 2006. |
| : The Constitutional Treaty: the Answer to the European Union’s Quest for a Consistent Human Rights Policy?. In: International Journal on minority and group rights, no. 3-4, pp. 209-222, 2006. |
| : Human Rights and the Accommodation of Difference – Special Issue. International Journal on minority and group rights, – special issue on Human Rights and the Accommodation of Difference, 2006, (Editor: Butenschon, Nils; Follesdal, Andreas). |
| : Justice, stability and toleration in a Federation of Well-ordered Peoples. In: Martin, Rex; Reidy, David (Ed.): Rawls’s Law of Peoples: A realistic utopia?, pp. 299-317, Blackwell, Oxford, 2006. |
| : Subsidiarity, Democracy and Human rights in the Constitutional Treaty for Europe. In: Journal of Social Philosophy, vol. 37, pp. 61-80, 2006, (Special issue on Globalisation and Democracy). |
| : Human Rights and Relativism. In: Follesdal, Andreas; Pogge, Thomas (Ed.): Real World Justice: Grounds, Principles, Human Rights Standards and Institutions, pp. 265-283, Springer, Berlin, 2005. |
| : Introduction. In: Follesdal, Andreas; Pogge, Thomas (Ed.): Real World Justice: Grounds, Principles, Human Rights Standards and Institutions, pp. 1-19, Springer, Doordrecht, 2005, (Author Role: eds.). |
| : Real World Justice: Grounds, Principles, Human Rights, and Social Institutions. Springer, Doordrecht, 2005. |
| : Introduction: The Market as a Site of Politics. In: Micheletti, Michele; Follesdal, Andreas; Stolle, Dietlind (Ed.): Politics, products and markets: Exploring political consumerism past and present, pp. ix-xxvi, Transaction Press, New Brunswick, N.J., 2004. |
| : Politics, products and markets: Exploring political consumerism past and present. Transaction Press, New Brunswick, N.J., 2004. |
| : Corporate Social Responsibility for Human Rights as Chance and Challenge: Fragments of a Political Theory. 2004. |
| : Menneskerettigheter og normativ politisk teori: Premisser og paradokser. In: Mennesker og rettigheter, vol. 19, no. 1, pp. 59-65, 2001. |
| : Global ethics and respect for culture. In: Hughes, Cheryl; Hudson, Yeager (Ed.): Cultural integrity and world community, pp. 3-24, Edwin Mellen, Lewiston, NY, 2000. |
| : Menneskerettigheter og ulike verdisyn: Vestlige mot asiatiske verdier? Gunnerusforelesningen 1999. In: Det Kongelige Norske Videnskabers Selskab Forhandlinger, pp. 105-121, Trondheim, 2000. |
| : Sustainable Development, State Sovereignty and International Justice. In: Lafferty, William M.; Langhelle, Oluf (Ed.): Sustainable development: On the aims of development and conditions of sustainability, pp. 70-83, Macmillan, Houndsmills, 1999. |
| : Democracy, legitimacy and majority rule in the EU. In: Weale, Albert; Nentwich, Michael (Ed.): Political Theory and the European Union: Legitimacy, constitutional choice and citizenship, pp. 34-48, Routledge, London, 1998. |
| : Minority Rights: A Liberal Contractualist Case. In: Raikka, Juha (Ed.): Do We Need Minority Rights? Conceptual Issues, pp. 59-83, Kluwer Law International, The Hague, 1996. |
| : Justifying human rights: the challenge of cross-cultural toleration. In: European Journal of Law, Philosophy and Computer Science, vol. 4, pp. 37-48, 1995. |
| : Hvordan begrunne menneskerettighetene?. In: Mennesker og rettigheter, vol. 10, no. 3, pp. 258-268, 1992. |
| : Human worth and human rights based on John Rawls’ contractualism. In: Wetlesen, Jon (Ed.): Menneskeverd: Humanistiske Perspektiver, pp. 109-127, Universitetet I Oslo, Oslo, 1992. |