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: 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. |
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. |
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: 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. |
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. |
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: 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; 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. |
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. |
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: 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: 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: 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. |
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… |
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: 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: 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: 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. |
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. |
| : 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. |
| : 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. |
| : 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. |
| : Appreciating the Margin of Appreciation. In: Etinson, Adam (Ed.): Human Rights: Moral or Political?, pp. 269-294, Oxford University Press, Oxford, 2018. |
| : 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. |
| : 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. |
| : Tracking justice democratically. In: Social Epistemology, vol. 31, no. 3, pp. 324-339, 2017. |
| : 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. |
| : 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. |
| : 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. |
| : 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. |
| : Subsidiarity and the global order. In: Zimmermann, Augusto; Evans, Michelle (Ed.): Global Perspectives on Subsidiarity, pp. 207-220, Springer, Dordrecht, 2014. |
| : 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. |
| : 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. |
| : 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. |
| : 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. |
| : 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. |
| : Introduction: Nordic Reluctance towards Judicial Review under Siege. In: Nordic Journal of Human Rights, vol. 27, no. 2, pp. 131-141, 2009. |