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: 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: 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: Subsidiarity as a Constitutional Principle in International Law. In: Global Constitutionalism, vol. 2, no. 1, pp. 37-62, 2013. (Type: Journal Article | Links | Tags: Publications, Subsidiarity)@article{RN49343, |
Follesdal, Andreas: The principle of subsidiarity as a constitutional principle in international law. In: Jean Monnet Working Paper 12/11, 2011. (Type: Journal Article | Abstract | Links | Tags: Federalism, Publications, Subsidiarity)@article{RN49138,This paper explores Subsidiarity as a constitutional principle in international law. A principle of subsidiarity regulates how to allocate or use authority within a political or legal order, and holds that the burden of argument lies with attempts to centralize authority. In EU law, a principle of subsidiarity is explicitly part of EU law at least since the Maastricht Treaty. Principles of subsidiarity are also found in the constitutions of many federal states. Some authors have appealed to a principle of subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, the leeway in assessing state compliance and weak sanctions in its absence. The article presents such defenses of state centric aspects of international/ law by appeals to subsidiarity, and find them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US Federalists, Pope Leo XIII, and others. The choice among them has drastic implications for the appropriate authority of international law and institutions vs domestic authorities – and thus for what sorts of institutional or constitutional reconfiguration should be pursued. One upshot is that the Principle of Subsidiarity cannot provide normative legitimacy to the state centric aspects of current international law on its own. It stands in need of substantial interpretation, which must be guided by normative considerations. While some versions of subsidiarity may match current practices of public international law, these are more questionable than the accounts that grant states a less central role in a legitimate multi-level legal and political order. If subsidiarity is to serve as a ‘constitutional principle’ for public international law, many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty. |
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. |
Dobson, Lynn; Follesdal, Andreas: Introduction. In: Dobson, Lynn; Follesdal, Andreas (Ed.): Political Theory and the European Constitution, Routledge, London, 2004. (Type: Book Chapter | Abstract | Links | Tags: EU – European Union, Federalism, Publications, Subsidiarity)@inbook{RN40400,The EU poses at least two challenges to a traditional conception of sovereignty …. First, the EU involves multiple territorial levels of decision-making, reminiscent and perhaps prescient – of federal political orders of a kind known as ‘coming together federations’ … Secondly, EU institutions often include private actors in public decision-making in order to increase responsiveness and proximity to affected parties. … we grapple with the major philosophical questions: what kind of polity? And with what moral right, if any, do European politicians now rule, and claim citizens’ compliance? .. We explore topics already well established in the EU literature: subsidiarity, diversity, democratic and legitimacy deficits, and institutional balances of power. · Constitutionalism: should the Union have a Constitution? If so what should it contain? How was the draft text arrived at and what does that process tell us? · European values: are there any common values, and, if so, what are they? How might they co-exist with particular (e.g. national) values? In particular, should religious heritage(s) be mentioned in the Constitution? · Liberty and power(s): different actors, ideologies, and states pursue different forms of liberty, with resulting theoretical and political tensions – between sovereignty as freedom to act, and immunity understood as non-domination; and differing imperatives for centre, large states, and small states; for majorities and minorities. · Common or European interest: lofty sentiments regarding common European objectives are often muddled or conflated, different actors intending quite different things. What clarifications of the different senses of these terms can we offer? These essays contribute towards a systematic understanding of the sometimes profound differences in conceptions of what legitimacy requires, and what political power is for, in the European Union. |
Follesdal, Andreas: Achieving Balance? Forms and Arenas of Institutional and National Balances in the Draft Constitutional Treaty. In: no. 2004, 2004. (Type: Journal Article | Abstract | Links | Tags: Federalism, Publications, Subsidiarity)@article{RN40490,The Draft Constitutional Treaty furthers important forms of stable balance, between the Member States and the Union institutions, among the Union institutions, and among Member States within the Union institutions. The challenge of creeping centralisation typical of federations could have been addressed even more fully by broadening the competence of national parliaments to appeal Union applications of the principle of subsidiarity. Effectiveness and efficiency can only be determined on the basis of specified objectives – which include complex mixes of legitimate ‘European’ and ‘national’ interests. Member States blocking unwarranted centralising decisions is thus not a case of ineffectiveness per se. The DCT changes the balance among Union institutions, It remains unclear how this balance is to be assessed, especially because Member States may legitimately pursue other objectives than the common European interest, and this may lead the Member State government to prefer other candidates than those favoured by the European Parliament. The ambiguity concerning the Draft’s reference to the European interest thus has implications for assessing this shift in balance. Interpreting the European political order as a federal system entails that the ‘national interests’ can not legitimately be dismissed as unbecoming a ‘post-national’ political order. Member State necessary for the long term support for a multi-level or federal political order, and for authorities’ ability to govern. The Draft Constitutional Treaty improves on the Nice Treaty in many regards. In particular, it goes some way toward creating a federal European political order that is more likely to facilitate trust and trustworthiness among Europeans. Importantly, such a revised European political order may also merit such increased trust. |
Follesdal, Andreas: Justice: Global and European. In: Global Society, vol. 14, no. 4, pp. 591-609, 2000. (Type: Journal Article | Abstract | Links | Tags: EU – European Union, Federalism, Publications, Subsidiarity)@article{RN26380,The first section of this paper lays out some aspects of liberal contractualism. Section 2 points to some relevant differences in the subject matters of international and European political order. Section 3 indicates that the research questions are interestingly different for the two subjects. At least three central topics must be addressed by a normative theory of federalism when brought to bear on the issues of europeanisation. Democratic theory must be rethought, and the concepts developed for nation-state parameters must be reconfigured. Distributive justice must consider the normative significance of non-unitary modes of governance. Claims to equal shares may have to be tempered by an account of when sub-units must take responsibility for their worst-off, rather than expecting other individuals in the political order as a whole to do so. A third important topic concerns the allocation of authority between the central level and sub-units. In the context of the European Union, the principle of subsidiarity has been introduced to resolve these issues, first in the Maastricht Treaty and most recently elaborated in the Amsterdam Treaty. The principle of subsidiarity places the burden of proof on those who seeks to centralise authorities. However, the principle is contested, can be interpreted in conflicting ways, and can apply in a variety of fields. It merits more attention by political philosophers. |
Follesdal, Andreas: Subsidiarity and democratic deliberation. In: Eriksen, Erik Oddvar; Fossum, John Erik (Ed.): Democracy in the European Union: Integration through Deliberation?, pp. 85-110, Routledge, London, 2000. (Type: Book Chapter | Abstract | Links | Tags: Democratic theory, EU – European Union, Publications, Subsidiarity)@inbook{RN24040,Subsidiarity may seem attractive for deliberative democrats concerned with the opportunities for preference formation in “decentralised processes of decision making … within constitutional political structures.” (Bohman 1999:::, 25; Miller 1992: 54, 67). While there are such reasons for supporting subsidiarity, the Amsterdam conception of subsidiarity also conflicts with the concern for democratic deliberation when it comes to institutional arrangements. The paper identifies three main areas of tension between Amsterdam Subsidiarity and deliberative democracy. Firstly, an urgent but unanswered task is how to secure accountable applications of Amsterdam Subsidiarity. Secondly, this conception of subsidiarity seems to grant unwarranted powers to Member States. Other entities, such as sub-state regions, might also appeal to considerations of subsidiarity, yet such applications and arguments are not recognised. Finally, Amsterdam Subsidiarity may hinder the development of trans-European values and commitments necessary for a stable European political order. |
Follesdal, Andreas: Subsidiarity. In: Journal of Political Philosophy, vol. 6, no. 2, pp. 190-218, 1998. (Type: Journal Article | Abstract | Links | Tags: EU – European Union, Federalism, Publications, Subsidiarity)@article{RN19890,The principle of subsidiarity regulates authority within a political order, placing the burden of argument with attempts to centralize authority. It has come to recent political prominence through its inclusion in the Maastricht treaty on European Union., intended to quell fears of centralization. However, the principle increases and shapes such tensions due to disagreement about formulations and possible institutional roles. Alternative accounts have strikingly different institutional implications regarding the objectives of the polity, the domain and role of sub-units, and the allocation of authority to apply the principle of subsidiarity itself. The need for a political theory of subsidiarity thus established, five alternative normative justifications of conceptions of subsidiarity are presented and assessed, illustrated by reference to the European Union. Few of the arguments constitute full theories addressing all issues of interpretation and application. Two arguments from liberty – Althusius and Confederalism – are addressed, one argument from efficiency (fiscal or economic federalism), and two arguments from justice: a Catholic argument based on Personalism and liberal contractualism. The order roughly reflects the decreasing autonomy of sub-units granted by each argument.. |
Publications
| : 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. |
| : 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. |
| : 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. |
| : Subsidiarity as a Constitutional Principle in International Law. In: Global Constitutionalism, vol. 2, no. 1, pp. 37-62, 2013. |
| : The principle of subsidiarity as a constitutional principle in international law. In: Jean Monnet Working Paper 12/11, 2011. |
| : 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). |
| : Introduction. In: Dobson, Lynn; Follesdal, Andreas (Ed.): Political Theory and the European Constitution, Routledge, London, 2004. |
| : Achieving Balance? Forms and Arenas of Institutional and National Balances in the Draft Constitutional Treaty. In: no. 2004, 2004. |
| : Justice: Global and European. In: Global Society, vol. 14, no. 4, pp. 591-609, 2000. |
| : Subsidiarity and democratic deliberation. In: Eriksen, Erik Oddvar; Fossum, John Erik (Ed.): Democracy in the European Union: Integration through Deliberation?, pp. 85-110, Routledge, London, 2000. |
| : Subsidiarity. In: Journal of Political Philosophy, vol. 6, no. 2, pp. 190-218, 1998. |