The proliferation of human rights treaties at regional and global levels may offer moral foundations for international law. However, many worry that this growth of supervisory organs is illegitimate. The MultiRights team of international lawyers and political theorists will first scrutinize the claims of legitimacy deficits. We then consider reform proposals for global and European human rights organs: We develop four plausible models, ranging from Primacy of National Courts to a World Court of Human Rights. We will assess the models by four Contested Constitutional Principles of legitimacy, revised for our multilevel legal order: Human Rights values, the Rule of Law, Subsidiarity, and Democracy.
The proliferation of human rights treaties at regional and global levels may offer moral foundations for international law. However, many worry that this growth of supervisory organs is illegitimate. Consider, for instance
- The European Court of Human Rights (ECtHR) is overburdened.
- The human rights organs may disagree e.g. on how to balance freedom of expression against protection from hate speech. Which should be obeyed?
- Citizens of well-functioning democracies ask: why should such international organs intervene?
The MultiRights team of international lawyers and political theorists will first scrutinize the claims of legitimacy deficits. We then consider reform proposals for global and European human rights organs: We develop four plausible models, ranging from Primacy of National Courts to a World Court of Human Rights. We will assess the models by four Contested Constitutional Principles of legitimacy, revised for our multilevel legal order: Human Rights values, the Rule of Law, Subsidiarity, and Democracy.
MultiRights thereby provides reasoned comparative assessment of models for human rights regime reforms, and contributes to better standards of legitimacy for international institutions. The findings may also help us understand and assess the alleged ‘Constitutionalisation of International Law” – an urgent topic under globalization, when governance beyond states increases in density and impact.
The academic contributions of MultiRights will also benefit several reforms:
- the Interlaken Process on how to improve the ECtHR,
- the accession of the EU to the European Convention on Human Rights under the Lisbon Treaty,
- the UN Secretary General’s calls to reform the Human Rights treaty body system, and
- challenges to the democratic credentials of such human rights review.
The proliferation of human rights treaties at regional and global levels stirs hope – and despair. To some, human rights protection herald an emerging cosmopolitan constitution that will provide a moral foundation for international law (Beitz, 2009; Buchanan, 2004). Others fear the repercussions of this growth of human rights supervisory organs: courts and treaty bodies. Consider, for instance:
- The European Court of Human Rights (ECtHR) is overburdened, in part because some countries flaunt their obligations. The Court’s reputation suffers from delayed and possibly hasty protection.
- The manifold human rights courts and treaty bodies may lead to conflicting jurisdiction, forum shopping and conflicting or inconsistent jurisprudence, such as balancing freedom of expression against protection from hate speech. No solution is in sight.
- In its famous ‘Kadi’ ruling, the European Court of Justice challenged the lawfulness of UN Security Council resolutions as incompatible with the protection of fundamental rights. Should national authorities respect global obligations – or regional judgments? Why should either prevail?
- When human rights organs challenge domestic legislators, governments or courts, politicians and citizens now start to ask: with what right do they intervene in democracies?
These and other challenges are taken by some as evidence that the human rights supervisory organs suffer from a legitimacy deficit. The team of international lawyers and political theorists MultiRights therefore:
- seeks to assess these claims about a legitimacy deficit, and then
- critically considers reforms proposals with a focus on global and European supervisory organs:
Four plausible models for future human rights regimes will be assessed according to
four contested constitutional principles of legitimacy, revised for our multilevel legal order.
- will shed light on claims about the shortcomings and benefits of the ‘constitutionalisation of international law,’ an urgent topic when governance beyond states increase in density and impact.
Such research is at the academic forefront, and addresses several current reform proposals:
- the Interlaken Process on how to improve on the future of the ECtHR;
- accession of the EU to the European Convention on Human Rights ECHR under the Lisbon Treaty;
- the UN Secretary General’s calls for Reform of the Human Rights treaty body system; and
- challenges to the democratic credentials of international human rights supervisory organs.
These research questions also raise profound questions for the development of international law, since the multifarious human rights regimes challenge traditional conceptions of sovereignty. The number of influential treaty organs with overlapping jurisdiction in the field of human rights raises issues concerning both the ever-more "public" character of international law, and its institutional fragmentation. And since human rights have become the de facto global “common moral language” (Beitz, 2009: 1), the MultiRights research topic is critical to determine whether human rights regimes – including the supervisory organs – should serve as normative requirements for rulers, and enjoy legal supremacy.
I State of the Art and Objectives
Several studies have addressed the proliferation, ‘fragmentation’ and possible constitutionalisation of international courts and tribunals, ( Koskenniemi 2006; J Int L Pol 31 (1998-1999); the UCL Project; (Follesdal, Wessel and Wouters 2008; Klabbers, Peters and Ulfstein 2009). New approaches are also represented by Global Administrative Law, as developed at NYU Law School (eg Kingsbury, 1998). But these studies have not focused on human rights law and human rights supervisory organs in particular. Nor have they been particularly concerned with what may be called the ‘vertical’ aspects of fragmentation: the relationship between protection mechanisms at the international, regional and national levels. MultiRights will, in addition to the interface between the international and national level, also address the relationship between the regional and global level. It will also consider the relationship between the EU and the ECtHR. This is a crucial case of ‘vertical’ fragmentation that will undergo fascinating change, since the Lisbon Treaty requires the EU to seek accession to the European Convention on Human Rights – a convention that applies not only to all EU states, but also to states outside the EU.
Scholars of international law and international political theory who have argued for reforms of the present human rights regimes have typically focussed on somewhat narrow issues. They have assessed individual reform proposals such as establishing a World Court of Human Rights (Nowak, 2007; Scheinin, 2006; Ulfstein, 2008), or accepting the ECtHR as a European Constitutional Court (cf. Ryssdal 1991). Theorists of international normative political theory have tended to focus on single ‘constitutional’ principles that should inform the reform processes, for instance access for all to institutions that protect human rights (Buchanan 2004), or standards to justify international protective and restorative action (Beitz 2009).
In international political theory and political philosophy, researchers have taken an increased interest in institutions beyond the nation state, not least within the recent so-called "cosmopolitan turn" in political philosophy. However, much though not all of this literature is routinely criticized for discussing world order reforms only in ideal theory, while failing to take into account how political institutions actually work, and how to best reform the existing flawed arrangements (Hessler 2005).
International relations research has broadened the research agenda by focusing on issues of institutional design, the interplay between domestic and international institutions, and multilevel governance, while only recently bringing up concerns of the legitimacy and democratic accountability of international governance. The standards of legitimacy they have employed have often failed to be informed by the best scholarship in international political theory.
MultiRights fills a gap among these valuable contributions in a unique way: by the interdisciplinary framing of research questions, the answers sought, and the research team of political theorists/ philosophers and lawyers. MultiRights is at the cutting edge of these disciplines concerning theories of legitimacy, constitutionalism and human rights, about the nature of and developments within international law, and the case law of human rights supervisory organs. So models for reform are informed by existing institutions, best practices, as well as the legal hurdles some such proposals face. MultiRights’ design provides fruitful cross-pollination among disciplines to secure the best reasoned critique and reform proposals for the tangled set of multi-level human rights regimes.
II Methodology, Mode and Plan of Work
MultiRights consists of 8 interrelated research topics, each needed to assess charges that the human rights regimes suffer from legitimacy deficits, and to explore and assess 4 models by 4 contested principles of legitimacy: Human rights values, the Rule of Law, Subsidiarity and Democratic Accountability.
MultiRights pursues these topics with a multidisciplinary international research team consisting of lawyers and political theorists, as detailed below. The main materials will be texts in law, empirical political science and political theory, including treaties, case law, and academic journals and books that draw on further empirical studies. It will meet in a weekly seminar and usually one publication-oriented workshop every semester. Both will allow for mutual learning among team members.
MultiRights will contain several intermediate goals during the 5 years, as noted in the bottom row of the overview below: an annual publication-oriented workshop that brings together the findings of each year, for the project’s main conclusions.
The main risks of MultiRights concern the project’s innovative inter-disciplinarity to transpose and bring to bear constitutional principles wrought from domestic contexts to multilevel relations. Feasibility: Andreas Follesdal and Professor Ulfstein who heads the legal scholars have strong academic track records, with extensive experience of all stages of multidisciplinary research management, as in their previous project ‘Should States Ratify Human Rights Conventions?’. Three standard risks of such research are minimized. Unlikely time delays will be minimal since topics 1-3 will anyway be regularly revisited and topics 4 –7 can start independent of each other, and can even be interchanged. Personnel uncertainties: The members are academically stellar, and known to deliver timely. Their times of visit can be adjusted. Multi-disciplinary communication is secured by preparatory workshops etc.
|Year 1 2011-12||Year 2 2012-13||Year 3 2013-14||Year 4 2014-15||Year 5 2015-16|
|1: Symptoms of legitimacy deficits|
|2: A theory of Legitimacy with 4 CCPs:||4: Human Rights - brought to bear on the 4 models||5: Rule of Law - brought to bear on the 4 models||6: Subsidiarity - brought to bear on the 4 models||7: Democracy - brought to bear on the 4 models|
|3: Four Models developed:|
|Primacy of National Courts||Compare weak/ strong judiciaries||Closer to facts – yet weaker?||Democratic control at national level|
|Powerful National Courts||Non-binding int’l decisions e.g. UN||“Margin of Appreciation”?||Unaccountable networks?|
|Powerful Int’l Courts||Stronger protection e.g. ECtHR||More multilevel conflicts?||“Margin of Appreciation”?||Unaccountable networks?|
|Toward World H R Court||Hierarchy reduces fragmentation||Democratic control at international level|
|Workshop:Preliminary conclusions re 1, 2 and 3||Workshop re 4->||Workshop re 5->||Workshop re 6->||Workshops:
a) re 7
|b) revising conclusions re 1, 2 and 3|
|c) re 8|
The research project critically inventories and analyses the claims about a legitimacy deficit. Some are more factual, others are partly informed by latent normative and theoretical considerations.
1) The emergence of international human rights courts and supervisory organs may be seen as tilting the balance between national democratic organs and an unaccountable international judiciary, especially in Europe. A stronger judiciary may imply Domination – not to say risk of tyranny - of judges and committees. Rather than promoting the rule of law, human rights regimes that review domestic legislation are said to promote the rule of lawyers, engaged in activist, ‘dynamic’ interpretative practices that challenge and even override accountable politicians at the domestic level (Waldron 2006). The international nature of these bodies lead some to claim that we see an unwarranted ‘constitutionalisation:’ International human rights regimes are paradigm examples of what some scholars see as the vanguard of ‘global constitutionalism’, a normative re-framing of international law that may serve to solidify and mask the illegitimate international transfer of power (Koskenniemi 2003)
(2) The proliferation of international human rights supervisory organs may also threaten rule of law standards. They may lead to a lack of Finality including forum shopping among treaty organs (Kingsbury 1998: 685) as well as unpredictability due to dynamic interpretation of several regional or international treaties, by judges who may weigh various treaties’ norms and rulings with competing jurisdictions at their own discretion (Graver 2007). Moreover, Inconsistencies may occur among the judgments and treaty organs at different levels, leading to accusation of ‘double standards’ (Alston and Weiler 1998; Shany 2003). This threatens the ‘unity’ of international human rights law (Buergenthal 2001: 272; Dupuy 1998: 796-798) .
(3) Lacunae: the patchwork of human rights regimes regulating different issue areas and geographical regions may leave jurisdictional gaps (Shany 2009): blind spots of unprotected vital human interests, e.g. concerning international solidarity and obligations regarding social and economic rights.
(4) Overload, especially in the case of the ECtHR, leading to justice delayed at best, ineffectual and inconsistent rulings at worst (Woolf 2005). These fears are further fuelled by suspicions that new human rights treaties lack sufficient quality control as to the material content of their decisions ( Alston 1984).
MultiRights will identify which of such charges are accurate and symptoms of more fundamental charges of illegitimacy. Yet we also attend critically to how perceptions of evidence are shaped by normative assumptions: what counts as symptoms of sickness for some, appear as symbols of strength for other beholders. These concerns notwithstanding, we provisionally submit that four Contested Constitutional Principles seem at stake: Human Rights Values, The Rule of Law, Subsidiarity, and Democratic Accountability.
Whether to be optimistic, cautious or sceptical about the effects of the current proliferation of human rights regimes depends in part on where you stand and where you look: what counts as symptoms of sickness for some, appear as symbols of strength for other beholders. MultiRights therefore critically examines how perceptions of the evidence are shaped by assumptions about the desirability of the developments.
Some may dismiss the human rights regimes as so much hot air, though careful empirical research specifies some impact of human rights treaty ratification (Simmons 2009). Others point to their disastrous potential (Kennedy 2001; Kennedy 2004). Some argue that international human rights regimes have a negative impact, as instruments of the powers that be, to establish a world order serving their interests by subjecting competitors and lesser powers. Human rights help legitimize "just" wars from the Gulf War to Iraq (Chandler 2001; Evans 2005; Koskenniemi 2003). While human rights enthusiasts welcome the never ending "rise and rise of human rights" (Sellars 2002), they may ignore the untoward political impact at their peril, perhaps partly due to a disconnect between ideal philosophical theorizing and the potential for abuse of all institutions.
The anarchic thicket of human rights regimes shows no evidence of a grand architect. Some welcome this multiplicity of uncoordinated sources of international law, as an indication of the bottom-up, needs-driven development of Lilliputian human rights reigns on too powerful states. Others may see no philosophical need for a final arbiter, but rather fear its potential for tyranny: Any power authorised to harmonise these regimes must be feared to therewith also further entrench power differentials (Koskenniemi 2003). These factual and normative claims will be scrutinised as part of MultiRights.
We then address the profound disagreement even about the diagnosis ‘legitimacy deficit,’ – is it a matter of law, of compliance, efficiency and/or a question of the normative justifiability of international constitutional review? This complexity is even more overwhelming in a multidisciplinary setting, which require us to clarify the interconnected uses of the term ‘legitimacy’ about issues of legality, of social compliance, and normative justifiability (Beetham 1991, Follesdal 2006). Critics may also challenge the extrapolation of ‘domesticated’ norms of legitimacy onto a multi-level political order: that such attempts at applying standards developed for sovereign states for a sui generis global legal order are ‘category mistakes.’
In response, MultiRights insists that while the appropriate norms of legitimacy cannot simply be copied from their domestic origins onto the multi-level legal order, we must discern whether the interests that principles of legitimacy are set out to protect and promote, also justify modified principles to be secured by the models considered. An increased focus on requirements of legitimacy at the international level is required as international institutions are ever more empowered: such empowerment should respond to quests for democratic accountability as well as rule of law and human rights standards, - but duly modified for the multi-level circumstances.
MultiRights will therefore lay out and defend a sufficiently comprehensive theory of legitimacy for multi-level legal orders, inter alia based on discussions of the ‘legitimacy deficit’ of the European Union. The provisional upshot is that the legitimacy of the multi-level legal order depends crucially on satisfying four Contested Constitutional Principles (CCPs). These CCPs are then brought to bear on four models for improving the present problems of human rights regimes.
How to justify, specify and bring these principles to bear is hotly debated. MultiRights will critically reconsider both how to understand questions about the legitimacy of international law, and these principles in particular: can they be justified and specified for multi-level legal and political orders, and brought to bear on a sufficiently integrated and justifiable set of human rights regimes? The four principles are not neatly separable, and are partly mutually supportive - and in mutual conflict (Fox-Decent 2008). As part of MultiRights – expanded in the conclusion, Topic 8 - we thus explore and advance the theoretical frontier of discussions about the Legitimacy of International Institutions, with special attention to the relationship between legality, compliance and normative justifiability as they pertain to human rights in particular.
MultiRights studies each of the 4 CCP in two ways: as normative standards, with regard to their justifiability; and then applied to the four different models to help assess which model may help improve the legitimacy of the human rights regimes. For reasons of presentation, the four models are presented before elaborating on the four principles.
MultiRights brings the CCPs to bear on four different models of reformed human rights regimes, to address what would be a legitimate international institutional system to safeguard human rights and monitor human rights obligations. These four models will be developed and refined during the first year, and adjusted in light of the detailed discussions of the various CCPs during the rest of the project. They combine various procedural and material elements that we and others now regard as decisive for any reform to address the legitimacy deficit of the human rights judiciary. Further elements may be added in light of the research.
The four reform models vary along two main dimensions: whether they strengthen domestic or international courts, and whether they do so by formal or informal means. The dimensions are not mutually exclusive, but interact. Each of these four models will alleviate some illegitimacy symptoms and worsen others; and each model will satisfy the various CCPs to different degrees. Within each model MultiRights devotes particular attention to central features or legal mechanisms that are salient for normative assessment, such as the “Margin of Appreciation’ or the reliance on networks of judges.
Primacy of National Courts - through formal means
A first model of reform is that human rights adjudication should be shifted towards the national judiciary, by formal legal means. This requires implementation and institutionalization of principles that operationalize the interaction and relationship of the national with the international and regional level. This may protect against international disrespect for human rights, for instance by the UN Security Council. Two mechanisms can contribute to the relationship between the international and the national level: A federalist approach, and strengthened local remedies for human rights violations. These will receive particular scrutiny in the project. Federalist approaches / demarcation of jurisdictions
A general organizing principle that would reduce the current muddled web of human rights regimes would be one that specifies their scope of jurisdiction and competence in each treaty, while at the same time clarifying the relationship with national courts through a demarcation of jurisdictions. A more federalist version of this model would find institutional arrangements to settle conflicts of jurisdiction, without any general claim that the geographically larger regime should have precedence. For instance: arguably economic and social human rights should be at the national level, while protection against torture should be handled by regional and mainly international treaties. These arrangements draw lessons from the federal traditions (Follesdal, 2010). This model would remove some inconsistencies and opacity, secure sufficient finality and predictability, and might possibly identify and respond to lacunae. MultiRights will address the plausibility of such claims, as well as the fears that such a court may further entrench the domination of the judiciary and treaty organs over democratically accountable legislators and executives.
Strong national remedies for human rights violations
A second mechanism is to strengthen the effectiveness and availability of national remedies for human rights violations. If remedies are readily available at the national level and function effectively, recourse to the international or regional level is no longer a pressing need to many claimants. Therefore, MultiRights will assess what remedies that currently exist for the national level, which of them can most effectively remedy human rights violations, and what changes would be necessary to render these more effective and legitimate.
Several issues will be considered. The human rights protections and rule of law offered by versions of this model are questionable; not so much in stable democracies as in less democratic states – whose consent anyway carries less normative weight (Buchanan 2004). This model arguably seem to fail to respond to ‘deconstitutionalisation’ and ‘hollowing out’ of democratically accountable politics at the domestic level (Peters 2006; Klabbers, Peters and Ulfstein 2009; Follesdal and Hix, 2006 ): If many other powers are placed with multi-level bodies, domestic courts may prove insufficient human rights protections.
Powerful National Courts - through informal means
Strong national courts may be the result of the activities of the international as well as the national judiciary, and by their combined efforts. International courts and supervisory organs may apply a strict interpretation of their jurisdiction and requirements of admissibility and thereby leaving more authority to the national level. In the European context the ECtHR has also developed a doctrine of the ‘Margin of Appreciation’ whereby it leaves the national level leeway to allow for local traditions and circumstances. MultiRights will address this doctrine with great care.
The ECtHR has furthermore applied a comparative methodology whereby it relies on an alleged emerging consensus among member states before it proclaims a higher level of human rights protection. Moreover, international human rights decisions will only establish minimum standards of protection, but leave to the states in what form to implement these standards. Finally, the international judiciary in the human rights field does not have supra-national powers in the sense that they may invalidate decision taken at the national level: they may at most conclude that international obligations have been violated.
The Interlaken Declaration that addresses how to reform the ECtHR supported the “principle of subsidiarity” by inviting the Strasbourg Court to apply “uniformly and rigorously the criteria concerning admissibility and jurisdiction and take fully into account its subsidiary role in the interpretation and application of the Convention” (Action Plan, Section E).
National courts may also choose an ‘activist’ role by actively taking part in the interpretation and development of international human rights obligations, and thereby taking a ‘constitutional’ role in engaging in the international/national institutional interface. The Kadi and Solange decisions by the European Court of Justice and the German Constitutional Court may be seen as efforts at the regional and national level to uphold human rights standards, challenging, respectively, UN Security Council resolutions and the future institutional framework of the EU.
MultiRights will assess how national courts can play a strong role through methods of interpretation and judicial policy, while ensuring respect for other values in the form of democracy, rule of law and human rights protection.
Strong national courts may also be the result of extra-judicial means. Networks among national and international judges and members of supervisory bodies are likely to promote consistency among judgments and facilitate learning within the epistemic community (Slaughter 2004). Such networks may not only enhance predictability and possibly reduce the opportunities for forum shopping. The intellectually and theoretically gifted members of treaty organs can also be expected to continue to develop the requisite conceptual tools to understand, describe and assess the changing global legal order. Networks may also provide insight for the national judges in the legal methods applied by international organs, and thereby increase their awareness of how they can influence those decisions.
MultiRights will address several of these claims, and consider central objections. Do, for instance, the benefits of politically unaccountable networks outweigh the risks to Rule of Law values and democratic accountability? (Anderson 2005)
Powerful International Courts - through informal means
The proliferation of international courts and supervisory organs may itself increase the power of the international judiciary. But the power balance is also an effect of how the judicial authority is practiced. Indeed, some scholars hold that national officials are gradually socialized into a “Europe of rights:” a transnational legal space with its own political and juridical legitimacy (Keller and Stone Sweet 2008). The ECtHR has taken on what may be seen as a constitutional role by its interpretation of the European Convention in a progressive manner: it not only requires that member states shall ensure effective interpretation of human rights in practice, it also applies a dynamic (“evolutive”) interpretation of the human rights obligations. This means that the ECtHR in practice develops standards that may be considered as of a constitutional nature, with international binding effect on national legislators and judiciaries. These effects are not only achieved by the binding character of individual decisions, but also through the building of a case law based on precedence. MultiRights will study this practice with particular care.
Other aspects of the supremacy of the ECtHR include its use of proportionality which has been called ‘one of the most intrusive forms of judicial supervision known: it requires courts to stand in judgment of the policy choices of State officials’ (Keller and Stone Sweet 2008: 11). The use of ‘pilot judgments’ is also more intrusive than traditional judgments in the sense that the Court not only decides the dispute at hand, but also proposes what should be the content of national law.
On the other hand, to the extent that national courts practice deference by respecting international decisions, this also tilts the balance in favour of the international judiciary. Finally, the existence of networks between judges and members of supervisory organs may, as indicated above, in practice empower the national judiciary. MultiRights will also consider whether such networks also have the opposite effect of streamlining judicial decisions in accordance with preferences at the international level. Furthermore, such networks may preempt decision-making at the national or international level, by legislatures or the judiciary.
Toward a World Court of Human Rights
A fourth model of legitimate human rights review strengthens international judiciary organs by formal rules, possibly with a World (Appellate) Court of Human Rights (Ulfstein 2008), perhaps with a Unified Human Rights Code of Procedure. Due to the constraints imposed by global politics, this model is probably the most utopian. It would require coherent international institutional reform and a strong international consensus on setting up such new institutions. Concerted action at the international level could also provide the formal methods and means which would strengthen international review mechanisms, even without going as far as creating a World Court. Some suggestions have already been entertained in the discussions concerning the fragmentation of international law, like the principle of systemic interpretation. Some would require more harmonization, like the adoption of common rules of uniform human rights interpretation or a uniform Code of Procedure of human rights review organs. As mentioned above, a federalist model could also operationalize a more coherent system of strong international courts, because it clarifies and settles the relationship between national courts and international courts, and establishes a certain hierarchical order.
MultiRights assesses these four models by how well they satisfy four principles of legitimacy. Each such Contested Constitutional Principle is in focus one year, concluding with a publication-oriented workshop. Opinions differ about whether each of them, suitably specified, qualify as ‘constitutional’ principles at the domestic level. Even more profound disagreements concern their possible transposition to legal orders beyond the nation state. MultiRights will critically reconsider both how to understand questions about the legitimacy of international law, and these principles in particular, to see whether and how they can be justified and specified for multi-level legal and political orders, and how they are best brought to bear on a sufficiently integrated and justifiable set of human rights regimes including supervisory organs.
The four models will be assessed in part in light of how well they are likely to protect human rights values – such as securing vital interests, including economic needs, against certain kinds of threats.
A normative requirement of legitimate rulers harking back to John Locke and beyond is that they must respect and protect the vital interests of all subjects. Legal human rights are often defended as such constraints to protect the vital interests of all against tyranny and domination, not only by autocrats but also by democratic majorities. Thus Buchanan defends human rights as a central legitimacy standard for international law (Buchanan 2004).
One research frontier in the Philosophy of Human Rights currently concerns the comparative advantages of ‘ethical’ accounts (Griffin 2009; Tasioulas 2007; Tasioulas 2010) and ‘political’ or ‘institutional’ accounts (Rawls 1999; Pogge 2000; Pogge 2005; Beitz 2009; Raz 2010). One innovative contribution of MultiRights is to address this issue on the basis of a better interface toward international legal theory, that is: with a more sophisticated and empirically informed understanding of political and legal institutions (cf Besson and Tasioulas 2010; Follesdal 2009). The focus is throughout on the multi-level nature of human rights regimes: How can they protect against domination, yet not themselves be instruments of domination at regional and international levels.
The four models will be assessed in part in light of how well they are likely to protect human rights values – such as securing vital interests of individuals against certain kinds of threats. One could argue that respecting and protecting the rights of citizens is and ought to be the sovereign responsibility of states, and that international bodies should mainly serve to prevent international authorities from having the capacity to violate human rights, and to thwart a state’s capacity to protect and respect those rights (Donnelly 2006). A special case concerns the normative challenges that arise with the Lisbon Treaty, when the EU shall seek to ratify the European Convention on Human Rights. MultiRights will also analyze two issues concerning social and economic human needs: - Reflective critics are wary of states, and even more so supervisory organs, empowered to promote and protect social and economic rights. They may be equally ‘urgent’ and no more costly than civil and political rights (Goodin 1979). But they involve more difficult trade-offs for resource allocation, thus perhaps better left to democratically accountable politicians, than to judiciaries or distant treaty organs. These arguments merit careful attention, especially given that many treaties apply also to non-democratic states the accountability mechanisms of which are weak at best. Furthermore, several contributors to arguments about ‘global justice’ agree that at least minimum obligations apply to the international community (Caney 2005; Follesdal 2001; Pogge 2005).
A second topic MultiRights will address concerns the risk that human rights regimes unintentionally drain attention and resources from those human needs that are not so protected. Thus insofar as there are international or global moral obligations to promote institutions that secure human interests beyond borders, international rights and obligations may have to be regulated by treaties to avoid unacceptable lacunae.
MultiRights is concerned with certain deeply contested ‘rule of law’ values, but limited to their proper explication and justification for multilevel human rights regimes in particular. Mindful that “there is contestation about the content and requirements of the Rule of Law ideal, and there is contestation about its point." (Waldron 1989: 30), the main focus of MultiRights is firstly for Predictability, i.e. to prevent indetermination of rights and duties as a result of a judiciary fragmented between the international and national levels, and between different international institutions. b) The project will also emphasize that the rule of law should prevail, rather than the rule of men. Two standard mechanisms to ensure the rule of law are the separation of powers, often including judicial review. A centuries old criticism against judicial review is that it does not secure the rule of law but the rule of lawyers. MultiRights addresses such concerns as they arise for our internationalized setting: With what right may international human rights treaty organs review the decisions of legislators and executives, especially when they are democratically accountable to domestic electorates – or in the European Parliament? Is not the cure worse than the disease? (Hirschl 2004).
MultiRights is particularly concerned with the Rule of Law values often traditionally expressed as seeking to preserve individual freedom from state intervention. One research task will be to assess the ‘Liberal’ vs. ‘Republican’ justifications: is the main – or sole - aim of human rights review to secure against the subjection of individuals to the arbitrary will of others? MultiRights will engage the arguments of Waldron 2006), Bellamy 2007), Pettit 1997), and Beatty 1994), considering especially how each of the four models compare. One concern is the drastic variation among states as to their constitutional and democratic culture –more so at the global than at the European level. This may make such protections more urgent in some states than in others. Another central challenge is to apply this value to multi-level legal orders.
A special case that MultiRights will study in depth is the ECtHR, which enjoys the strongest such power. The extra-parliamentary modes of accountability of judges and other committee members may reduce the risks of domination, such as public opinion, contingent compliance, and professional standards of legal reasoning and rhetoric. These are different from, but possibly sufficiently effective combined with and compared to electoral accountability – domestically, and possibly in multi-level settings. Whether similar pressures operate on and within treaty organs is a central empirical and normative research topic. Composition, rules of procedure, capacity, fact-finding, etc. of international bodies will be studied, especially with regard to the ECtHR (Graver 2007; Moore 2001).
MultiRights will explore Subsidiarity – somewhat unconventionally - as a constitutional principle for international human rights law (Carozza 2003). The principle of subsidiarity regulates the placement and/or use of authority within a political or legal order, and holds that the burden of argument lies with attempts to centralize authority (Follesdal 1998). This principle is explicit in EU law at least since the Maastricht Treaty, as well as in many federal states. The centrality of state consent in accounts of the legitimacy of international law (Rabkin 2005) is arguably another expression of this normative principle, as is the requirement that domestic remedies must be exhausted.
Subsidiarity can apply both in a procedural and in a material sense. Procedurally subsidiarity is a principle of admissibility which delimits the jurisdiction of human rights treaty organs and national courts. This is central to the Interlaken Declaration (6, para 9) and the Solange judgments of the German Bundesverfassungs-gericht. Material aspects concern how to determine the content of rights, which is sometimes better left to the national state at least absent consensus at the international level. Consensus on the material content of a right might move the decision to the international level. Such considerations influence the jurisprudence of the ECtHR on the ‘Margin of Appreciation,’ central to the MultiRights model ‘Powerful National Courts’.
With regard to the human rights supervisory organs, a central philosophical question addressed by MultiRights is whether they are at all compatible with subsidiarity: why, if at all, should treaty organs exist with the powers they have over domestic legislators, executives and judiciaries? A central research task is to use answers to this question to explore the best account of subsidiarity for international human rights review. Different interpretations 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 (Follesdal, 1998). This has drastic implications for which of the four models that subsidiarity considerations favour. A second issue is to compare the objectives of such supervision with arguments in the Solange and Kadi cases. MultiRights brings these arguments to bear on the four models.
Judicial review – including that of human rights – is often thought to violate a popular standard for legitimate rule, namely democratic accountability (Flathman 1993: 528; Lenaerts and Desomer 2002; Waldron, 2006; Bellamy, 2007). MultiRights will explore how well each of the four models can stand up to the best formulation of these worries, in light of what makes democratic arrangements valuable.
Various approaches to the relationship between democracy and legitimacy must be addressed. The main concern of MultiRights is not the informal, less legal senses of democracy (Dryzek 2006), but the legitimacy of democracy understood as institutionalized levers of popular deliberation and electoral control over executive and legislative powers (Besson 2009; Christiano 2010), including the reinvigorated ‘Republican’ tradition (Pettit 1997). A central claim in favour of decision procedures whereby the preference of the majority of the electorate determines the result, is that under certain conditions these decisions will be responsive to the best interests of the population – themselves identified, specified and ‘weighted’ within the democratic process. (Follesdal and Hix 2006; Pettit 2000; Shapiro 2003).
Such democratic rule requires political contestation, deliberation, - and argue some - : judicial review to protect the interests of vulnerable minorities against tyranny or indifference.
MultiRights will explore and assess these recent contributions to democratic theory. We use these findings to identify the strongest case of somewhat independent international human rights review bodies, presumably when they are balanced by, checked by and otherwise interact with democratically accountable legislatures and executives at one or more territorial levels of the global political and legal order.
Three central issues for the philosophical MultiRights research are: First, how to ensure that treaty organs respect normatively acceptable discretion of national authorities to reflect the circumstances, legitimate expectations and preferences of the citizenry, while striking down unacceptable decisions? This allegedly occurs with the ECtHR’s ‘Margin of Appreciation’ central in the model ‘Powerful National Courts.’
Another central concern is the dynamic interpretation of the model ‘Powerful International Courts.’ Human rights review must be based on ‘dynamic interpretation’ of the treaty texts so as to protect individuals’ best interests under changing circumstances. Yet the supervisory organs must remain sufficiently responsive to citizens’ best interests and avoid domination. How best ensure this – absent direct democratic accountability?
Thirdly, if democratic control should be exercised not only at national, but also at regional – European – or global levels (Archibugi, Koenig-Archibugi and Marchetti 2010), similar concerns about the ‘democratic deficit’ arise for human rights review also at those levels. MultiRights will explore whether there are particular challenges to international review in such cases. Following a common argument in constitutional theory, an independent judiciary is justified if it is checked and balanced by an elected legislature and an accountable executive. By analogy, one might argue that independent international human rights bodies are justified to the extent that they are similarly balanced at the transnational and/or national level. But how are we to assess such human rights bodies in the absence of democratically accountable checks and balances?
MultiRights yields three main sets of conclusions. It a) aims to provide reasoned comparative assessment of the four models of human rights regime reforms, duly adjusted and improved in light of the research findings. It will thereby shed light on the opportunities for coherence among effective human rights review bodies whose legitimacy has been most challenged (Kumm 2009; Rabkin 2005; Buchanan 2004). The variations among the models and their elements allow advanced and innovative research on the implications of the four Contested Constitutional Principles. At the same time the models are sufficiently realistic that the findings may guide policy debates at the UN and in Europe. Some recommendations may be narrow in scope, for instance that certain rights should be handled at certain territorial levels, while other institutional solutions may be better for other human rights regimes.
Other conclusions are more theoretical in nature. MultiRights will b) contribute to a better understanding of the legitimacy of international institutions in general. In particular, we will provide in-depth studies on the four CCP developed and justified for human rights in multi-level legal settings. MultiRights will finally c) contribute to the debates about the symptoms and desirability of the ‘Constitutionalisation of International Law’. A theoretical discussion of growing concern is whether concepts such as ‘Constitutionalism’ and ‘Constitution’ can and should apply to regional and international legal orders. MultiRights does not assume that the world order is or should move toward a global constitution: we only explore these norms. Yet the debate about ‘Global’ or ‘Cosmopolitan’ constitutionalism should inform and be informed by MultiRights.
MultiRights will include in-depth discussions concerning the state of the art on several of these issues: whether such descriptions as ‘constitutionalisation’ are category mistakes, misapplications or whether they rather illuminate some tacit assumptions also about legitimacy claims of the sovereign state (Kumm 2009); the respective, distinct functions of domestic and international human rights law - and potentially of domestic and international ‘constitutions’ and ‘constitutional norms’ (Gardbaum 2009; Klabbers, Peters and Ulfstein 2009), such as ‘thinner’ or ‘thicker’ backgrounds for international norms (Besson 2009).
It is only by solid, cutting edge multidisciplinary work of the kind that MultiRights seeks to provide that we can move forward on these puzzles concerning how to assess and possibly improve on the multi-level human rights supervisory organs.
III Research Team
MultiRights will be based at the Faculty of Law at the University of Oslo, including its Centre for Human Rights, and draw on further expertise at Norway’s Centre of Excellence for the Study of Mind in Nature. MultiRights is led by Professor Andreas Follesdal who will spend 80% of his time on the project, in close cooperation with team member Professor Geir Ulfstein, Professor of Public Law, to ensure solid quality control of both the philosophical and legal scholarship. The research project will draw on and promote the next generation scholars in these fields, by continually including 3-4 PostDocs or PhDs. They are joined by a Core Team of political theorists and international legal scholars hand-picked from the U of Oslo and globally, each to be in residence for 1-12 months timed to exploit their expertise.
IV Central References
Alston, P. (1984). "Conjuring up new human rights: a proposal for quality control." American Journal of International Law 78: 607-612.
Alston, P. and J. H. H. Weiler (1998). "An 'Ever closer Union' in need of a human rights policy: the European Union and Human Rights." European Journal of International Law 9: 658-723.
Anderson, K. (2005). "Squaring the circle? Reconciling sovereignty and global governance through global government networks - review of Slaughter 2004." Harvard Law Review: 1255-1312.
Archibugi, D., M. Koenig-Archibugi and R. Marchetti (2010). Global Democracy. Cambridge, Cambridge University Press.
Beatty, D. M. (1994). "Human rights and the rule of law". Human rights and judicial review: A comparative persective. D. M. Beatty. Dordrecht, Martinus Nijhoff: 1-56.
Beetham, D. (1991). The legitimation of Power. London, Macmillan.
Beitz, C. R. (2009). The Idea of Human Rights. Oxford, Oxford University Press.
Bellamy, R. (2007). Political Constitutionalism: A republican defense of the constitutionality of democracy. Cambridge, Cambridge University Press.
Besson, S. (2009). "Whose Constitution(s)? International Law, Constitutionalism, and Democracy". Ruling the World? Constitutionalism, International Law, and Global Governance. J. L. Dunoff and J. P. Trachtman. Cambridge, Cambridge University Press: 381-408.
Besson, S. and J. Tasioulas (2010). The Philosophy of International Law. Oxford, Oxford University Press.
Buchanan, A. (2004). Justice, legitimacy, and self-determination: moral foundations for international law. Oxford, Oxford University Press.
Buergenthal, T. (2001). "Proliferation of International Courts and Tribunals: Is It Good or Bad?" Leiden Journal of International Law 14(2): 267-275.
Caney, S. (2005). Justice beyond borders. Oxford, Oxford University Press.
Carozza, P. G. (2003). "Subsidiarity as a structural principle of international human rights law " American Journal of International Law 97(38): 38-79.
Chandler, D. (2001). "Universal Ethics and Elite Politics: The Limits of Normative Human Rights Theory." The International Journal of Human Rights 5(4).
Christiano, T. (2010). "Democratic Legitimacy and International Institutions". Global Democracy. D. Archibugi, M. Koenig-Archibugi and R. Marchetti. Cambridge, Cambridge University Press.
Donnelly, J. (2006). "The virtues of legalization". The legalization of human rights. Multidisciplinary perspectives on human rights and human rights law. S. Meckled-Garcia and B. Cali. London, Routledge.
Dryzek, J. (2006). Deliberative Global Politics. Oxford, Polity Press.
Dupuy, J. M. (1998). "The Danger of Fragmentation or Unification of the International Legal System and the International Court of Justice." NYU Journal of International Law and Politics: 791-807.
Evans, T. (2005). The politics of human rights: a global perspective. London, Pluto Press.
Follesdal, A. (1998). "Subsidiarity." Journal of Political Philosophy 6(2): 231-259.
Follesdal, A. (2001). "Federal Inequality among Equals: A Contractualist defense". Global Justice. T. Pogge. Oxford, Blackwell. First published in Metaphilosophy 2001, 236-255: 242-261.
Follesdal, A. (2009). "How to bring normative requirements to bear on institutions beyond the state." Journal of Social Philosophy 40(4): 461-465.
Follesdal, A. and S. Hix (2006). "Why there is a Democratic Deficit in the EU: A Response to Majone and Moravcsik." Journal of Common Market Studies 44(3): 533-562.
Follesdal, A., R. Wessel and J. Wouters, Eds. (2008). Multilevel Regulation and the EU: The interplay between Global, Europan and National normative processes. Leiden, Martinus Nijhoff.
Fox-Decent, E. (2008). "Is the Rule of Law really indifferent to Human Rights?" Law and Philosophy 27: 533-581.
Gardbaum, S. (2009). "Human rights and international constitutionalism". Ruling the World? Constitutionalism, International Law, and Global Governance. J. L. Dunoff and J. P. Trachtman. Cambridge, Cambridge University Press: 233-257.
Goodin, R. E. (1979). "The development-rights tradeoff: some unwarranted economic and political assumptions." Universal Human Rights/Human Rights Quarterly 1: 31-42.
Graver, H. P. (2007). "What cares these roares for the name of king? To cabin! Silence! Trouble us not. Community law, judicial activism and liquid rules - an EEA perspective, ". European integration through interaction of legal regimes. C. Baudenbacher and H. Bull. Oslo: 99-131.
Griffin, J. (2009). On Human Rights. Oxford, Oxford University Press.
Hessler, K. (2005). "Resolving interpretive conflicts in international human rights law." Journal of political philosophy 13(1): 29-52.
Hirschl, R. (2004). Towards Juristocracy: the origins and consequences of the new constitutionalism. Cambridge, Harvard University Press.
Keller, H. and A. Stone Sweet, Eds. (2008). A Europe of Rights. Oxford, Oxford University Press.
Kennedy, D. (2001). "The International Human Rights Movement: Part of the Problem?" European Human Rights Law Review(3): 245-267.
Kennedy, D. (2004). The dark side of virtue: reassessing international humanitarianism. Princeton, Princeton University Press.
Kingsbury, B. (1998). "Is the Proliferation of International Courts and Tribunals a Problem? ." NYU Journal of International Law and Politics 31.
Klabbers, J., A. Peters and G. Ulfstein (2009). The constitutionalization of international law. Oxford, Oxford University Press.
Koskenniemi, M. (2003). "Legitimacy, Rights and Ideology, Notes Towards a Critique of the New Moral Internationalism." Associations: Journal for Legal and Social Theory 7(2): 349-373.
Koskenniemi, M. (2006). "Fragmentation of International Law: difficulties arising from the diversification and expansion of international law". International Law Commission, Study Group on Fragmentation.
Kumm, M. (2009). "The cosmopolitan turn in constitutionalism: On the relationship between constitutionalism in and beyond the state". Ruling the World? Constitutionalism, International Law, and Global Governance. J. L. Dunoff and J. P. Trachtman. Cambridge, Cambridge University Press: 257-324.
Lenaerts, K. and M. Desomer (2002). "New models of constitution-making in Europe: the quest for legitimacy." Common Market Law Review 39(6): 1217-1253.
Moore, M. (2001). "Justifying the Natural Law Theory of Constitutional Interpretation." Fordham Law Review 69: 2087-2117.
Peters, A. (2006). "Compensatory Constitutionalism: The Function and Potential of Fundamental International Norms and Structures." Leiden Journal of International Law 19: 579-610.
Pettit, P. (1997). Republicanism: A theory of freedom and government. Oxford, Clarendon Press.
Pettit, P. (2000). "Democracy: Electoral and Contestatory". Designing Democratic Institutions. I. Shapiro and S. Macedo. New York, New York University Press: 104-144.
Pogge, T. W. (2000). "The international significance of human rights." The journal of Ethics 4(1): 45-69.
Pogge, T. W. (2005). "World Poverty and Human Rights " Ethics and international Affairs 19(1): 1-7.
Rabkin, J. A. (2005). Law without nations? Why constitutional Government requires sovereign states. Princeton, Princeton University Press.
Rawls, J. (1999). The law of peoples. Cambridge, Mass., Harvard University Press.
Raz, J. (2010). "Human Rights without Foundations". The Philosophy of International Law. S. Besson and J. Tasioulas. Oxford, Oxford University Press.
Ryssdal, R. (1991). "On the road to a European Constitutional Court." Recueil des Cours de l'Académie de Droit Européen: 3-20.
Sellars, K. (2002). The rise and rise of human rights. Stroud, Sutton Publishing.
Shany, Y. (2003). The competing jurisdictions of international courts and tribunals. New York, Oxford University Press.
Shany, Y. (2009). "No Longer a Weak Department of Power? Reflections on the Emergence of a New International Judiciary." The European Journal of International Law 20(1): 73-91.
Shapiro, I. (2003). The state of democratic theory. Princeton, Princeton University Press.
Simmons, B. A. (2009). Mobilizing for Human Rights: International Law in Domestic Politics. New York, Cambridge University Press.
Slaughter, A. M. (2004). A new world order. Princeton, Princeton University Press.
Tasioulas, J. (2007). "The moral reality of human rights". Freedom from Poverty as a Human Right: Who owes What to the Very Poor? T. W. Pogge. Oxford, Oxford University Press.
Tasioulas, J. (2010). The Philosophy of International Law. S. Besson. Oxford, Oxford University Press.
Ulfstein, G. (2008). "Do we need a world court of human rights?". Law at War - the Law as it was and the Law as it Should Be. O. Engdahl and P. Wrange, Brill: 261-272.
Waldron, J. (1989). "the rule of law in contemporary liberal theory." Ratio Juris 2(1): 79-96.
Waldron, J. (2006). "The core of the case against judicial review." The Yale Law Journal 115: 1346-1406.
Woolf, L. (2005). Review of the Working Methods of the European Court of Human Rights. Strasbourg, The European Court of Human Rights.