Andreas Follesdal

• PhD Philosophy, Harvard University
• Managing Director at University of Oslo

Many elements of current positive public international law (PIL) originated in theories of natural law, including both rules – of the law of the sea and of war, of refugee and asylum law – and constitutive conceptions of sovereignty. Several scholars argue that PIL has improved upon and replaced those origins, leaving the old natural law theories d...

Although customary international law (CIL) has been central to international law from its inception, it is often misunderstood. This edited volume remedies that problem by tracing the history of CIL and provides an in-depth study of its theory, practice, and interpretation. Its chapters tackle the big questions which surround this source of interna...

What does justice require concerning socio-economic distribution among citizens of the European Union? The EU should reduce cross-national economic inequalities among inhabitants of different member states, but full economic distributive equality or a European ‘Difference Principle,' may not be required. Individuals' claim to more political influen...

How might Ethiopia maintain its federal structure and its territory? ‘Constitutional contestation’ in Ethiopia is fuelled by two factors: regions and political parties follow ethnic line; and the Ethiopian Constitution has a secession clause. A central challenge is to secure sufficient political trust. The public must be assured that authorities an...

Critics challenge international courts for their interference with domestic democratic processes and alleged violations of rule of law standards: they claim that these guardians of the rule of law are not well guarded themselves. These concerns should not be dismissed too quickly as mere disgruntled venting by populist politicians. This article foc...

These reflections elaborates the theory of The Idea of Human Rights by addressing a topic that theory attempts to bracket: international and regional judicialization in the form of international courts and tribunals. Using the method of reflective equilibrium, the article argues that this exclusion is inconsistent. Including these international cou...

Since the beginnings of civilization, the religious has posed a central problem to the normative order of the political. The present volume illuminates this crucial relation in 21 chapters from different disciplinary perspectives including philosophy, theology, constitutional theory and law. Leading scholars are addressing conceptual questions as w...

This chapter concludes the book as a whole and attempts to bring some order to debates about the legitimacy of international courts. It draws on Raz’s conception of authority and on cosmopolitan theory. It argues that this approach can reduce apparent confusion about the legitimacy of international courts by explaining the significance of considera...

Cambridge Core - European Law - Building Consensus on European Consensus - edited by Panos Kapotas

Building Consensus on European Consensus - edited by Panos Kapotas January 2019

These comments address three themes concerning Oona A Hathaway’s and Scott J Shapiro’s The Internationalists (Hathaway and Shapiro 2017), a great contribution to scholarship about international relations, international law and international legal theory. I first explore further some game theoretical themes, how the Peace Pact arguably contributed t...

While 10 years is too short a time to draw broad conclusions, the ERC does seem to have succeeded in promoting excellent and basic research in Europe, both through its own projects and by affecting standards and aspirations more broadly. It has affected widely shared conceptions of scholarly excellence and introduced new measures of academic esteem...

The European Court of Human Rights (ECtHR) has a practice of granting states a 'Margin of Appreciation:' the Court grants states the authority to decide, in some cases, whether they are in compliance with their obligations under the European Convention on Human Rights. This deference by the ECtHR toward states merits philosophical attention: it is...

Cambridge Core - International Trade Law - The Legitimacy of International Trade Courts and Tribunals - edited by Robert Howse

One of the most noted developments in international law over the past twenty years is the proliferation of international courts and tribunals. They decide who has the right to exploit natural resources, define the scope of human rights, delimit international boundaries and determine when the use of force is prohibited. As the number and influence o...

International relations are increasingly judicialized by the increasing number of international courts and tribunals. On the one hand this judicialization of international law is hailed as a glimmer of more effective and legitimate world governance promoting human rights, justice, and peace. On the other hand critics highlight how sovereignty is in...

This chapter presents the main contents of the book, setting the stage by discussing the expansion of international courts, and the challenges therein, touching upon the legitimacy crises certain courts have faced. The introduction stresses that the volume shows how ICs are adaptable, but that these adaptations may matter little if the concern and...

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...

In recent years, political philosophers have debated whether human rights are a special class of moral rights we all possess simply by virtue of our common humanity and which are universal in time and space, or whether they are essentially modern political constructs defined by the role they play in an international legal-political practice that re...

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...

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...

Wie Schiffer sind wir, die ihr Schiff auf offener See umbauen müssen, ohne es jemals in einem Dock zerlegen und aus besten Bestandteilen neu errichten zu können. [We are like sailors who have to rebuild their ship on the open sea, without ever being able to dismantle it in dry-dock and reconstruct it from the best components.] – Neurath, ‘Protokoll...

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 Eu...

The article considers implications of contested multilateralism for the processes and normative standards of global constitutionalism. The focus is primarily on aspects of CM regarded as a mode of constitutional change, considering what to make of such a form of ‘extra-constitutional’ procedure. Research challenges for political science, law and no...

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 all...

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 Europ...

This article addresses whether Albert Weale’s view in Democratic Justice and the Social Contract (OUP 2013) fits into one of two strands of social contract traditions, and how his account stands up to critics. He claims to stand in the contractarian tradition, which seeks to justify normative principles of justice from non-moral premises. The alter...

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 f...

The article introduces John Rawls’ book A Theory of Justice, which is perhaps that contribution in political philosophy that attracted the most attention in the twentieth century. After a brief biographical introduction, Part 2 presents the allocation principles John Rawls advocated. Part 3 presents Rawls’ conception of society and the individual,...

Machiavelli's 500-year-old treatise The Prince outlined the central features of the realist tradition in international relations. His premises led him to question the likelihood of efficacious and stable international law and international courts, a skepticism that has present-day proponents. Machiavelli's reluctance was due to a combination of fea...

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 1 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...

This article focuses on how Weale's view in Democratic Justice (Oxford University Press 2013) fits into and responds to two strands of social contract traditions and their critics: the contractarian tradition as he claims to, which seeks to justify normative principles of justice from non-moral premises. The alternative is the contractualist tradit...

The Euro crisis has led to an unprecedented Europeanization and politicization of public spheres across the continent. In this volume, leading scholars make two claims. First, they suggest that transnational crossborder communication in Europe has been encouraged through the gradual Europeanization of national as well as issue-specific public spher...

Susan Moller Okin, an egalitarian feminist liberal, reconstructed the history of political thought to correct for the absence, exclusion, or distortion of women, gendered culture, and reproduction. She developed the social contract tradition to secure family and gender central place, highlighted the plight of minority women in multicultural societi...

Over the past two decades, authors, many of whom are included in this volume, have addressed several salient foundational issues concerning citizenship in Europe. Others in this volume address some of these issues—such as the relationship between national and European citizenship regarded as multilevel (Rainer Baubock and Ulf Bernitz), the relation...

This chapter explores different conceptions of the principle of subsidiarity and their implications for constitutional and institutional design. It begins with a discussion of four alternative theories of subsidiarity that draw on insights from Althusius, the American Confederalists, economic or fiscal federalism, and Catholic Personalism, respecti...

Subsidiarity has been proposed as an answer to the challenges of globalisation 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 criticises the ‘state centric’ versions of subsidiarity of...

The Euro crisis has led to an unprecedented Europeanization and politicization of public spheres across the continent. In this volume, leading scholars make two claims. First, they suggest that transnational crossborder communication in Europe has been encouraged through the gradual Europeanization of national as well as issue-specific public spher...

Globalization describes the processes of widening and deepening relations and institutions across space.ii Increasingly, our actions and practices systematically and mutually affect oters across territorial borders (Held 1995: 21). Since these processes affect our opportunities and our possible impact, globalization also affects what we ought to do...

The Article addresses some of the disagreement concerning the legitimacy of the international human rights judiciary. It lays out some aspects of a theory of legitimacy for the international human rights judiciary that seem relevant to addressing two challenges: First, it is difficult to justify the human rights judiciary by appeal to standard acco...

The "great question", as John Locke put it, is not whether there should be political power in the world, nor whence it came, but who should have it. For domestic institutions, these three questions of normative political theory may well be separable and ordered as Locke indicated. However, the legitimacy of multi-level systems of governance can har...

Alleged tensions between liberalism and nationalism have recently received sustained attention . Several authors have explored or defended moderate views . Yet liberal theories are considered unable to account for political allegiance - the duty to comply with the just laws and institutions of one's own state. I assume that political allegiance is...

The first section of this draft 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 b...

The paper argues that liberal contractualism can defend the distributive significance of state borders. While unequal shares of certain goods is unreasonable among citizens, some such inequalities are not objectionable in a system of sovereign states. Domestically, a strong case can be made for requiring equal shares of "social primary goods", unde...

25 år etter at Hernes presenterte idealet om resultatlikhet for den norske skole blir dette idealet gransket kritisk, innenfor en drøfting av ulike grunner for likhet. Hovedkonklusjonen er at resultatlikhet ikke er en påkrevet målsetting i skolen - men at reell resultatlikhet heller ikke har vært fremsatt som mål, selv om ordet altså har vært brukt...

Hvordan bør vi behandle dyr? Dette spørsmålet står på dagsorden i mange land. Påstander om misbruk av dyr i industri og forskning har ført til aksjoner, politiske protester, og krav om lovendringer. Er det nødvendig å endre etablert praksis, med alle de utgifter dette medfører? Slike vurderinger kan ikke bare dreie seg om kostnadene, men også om dy...

Mange mennesker er svært kritiske til hvordan dyr behandles i dag. Skepsisen gjelder ikke bare vanskjøtsel, men også slakt av dyr for menneskeføde og bruk av dyr for testing av produktsikkerhet. Noen protesterer sågar mot bruk av dyr i medisinsk forskning. Påstander og mistanker om misbruk av dyr i industri og forskning fører til aksjoner, politisk...

This paper explores subsidiarity as a constitutional principle in international law. 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 a...

“Beth Hamishpath” - the House of Justice, this voice accompanies the entrance of the three judges in black robes who take their seats surrounded by books and several hundreds of document pages. Since the incipit Arendt’s philosophical insight emerges as a blend of formal and informal elements concurring in the trial of “the evil”. No wonder why the...

Should state borders matter for claims of distributive justice? The article explores, only to reject, the best reasons for an ‘Anti-Cosmopolitan’ position which grants some minimum international obligations, including social and economic human rights. At the same time this Anti-Cosmopolitanism rejects distinctly distributive principles of justice,...

Institutional suggestions for how to rethink democracy in response to changing state responsibilities and capabilities have been numerous and often mutually incompatible. This suggests that conceptual unclarity still reigns concerning how the normative ideal of democracy as collective self-determination, i.e. rule by the people, might best be broug...

The Constitutional Treaty (CT) and the Reform Treaty (RT) does take several valuable steps to ensure that the European Union becomes more trustworthy and comes ‘closer to the people’ – though I register some ambivalence. Section 1 provides some fragments of the history of the European Union, to justify the diagnosis that it needs increased levels o...

I denne artikkelen drøfter vi prøvingen av norsk rett i forhold til Den europeiske menneskerettighetskonvensjonen (EMK) ved Den europeiske menneskerettighetsdomstolen (EMD) og av Høyesterett, både ut fra demokratiske legitimitet og mulige andre grunnlag for legitim myndighetsutøvelse. Vi peker til sist på hva denne internasjonaliseringen av retten...

What is at stake when the EU suffers from a legitimacy deficit, and what should be done about it? As always, Gráinne de Búrca and J H H Weiler identify and illuminate central issues of concern. de Búrca adroitly pinpoints a crux of the legitimacy debates in Europe: how to secure sufficient deference to EU decisions by citizens and national authorit...

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...

In the twenty-first century, questions of corporate conduct in relation to human rights have come to the forefront of public attention. Several institutional investors such as pension funds, especially responsible private funds and government funds have established policies and practices to handle issues of corporate involvement which they find une...

Do investors have an obligation to not invest in corporations that contribute to human rights violations? – Even when such divestment neither causes changes in the corporations, nor prevents the violations? Is there a justification of divestment that holds up even in the face of general breaches of the norms? Can such a justification avoid reliance...

In federal political orders political authority is divided, often constitutionally, between at least two levels so that units at each level have final authority and can be self governing in some issue area.

How can businesses and their shareholders avoid moral and legal complicity in human rights violations? This central and contemporary issue in the field of ethics, politics and law is of concern to intergovernmental organizations such as the UN and to many NGOs, as well as investors and employees. In this volume legal scholars and political philosop...

Deputy Governor Qvigstad's lecture on transparency in Norges Bank invites us to reflect on the grounds for democracy – and its limitations. In Norway, a number of bodies are kept independent of our elected politicians: the Supreme Court and international courts, a free media, researchers – and Norges Bank. In a democracy, all citizens are equal. Is...

The full set of EU objectives in the long run require basic and critical research in the social sciences and the humanities (SSH). A European Research Council (ERC) may act for reasons of economies of scale, to alleviate coordination problems, or to obtain public goods or ‘club goods’ for humanities and social science (SSH). It should promote data...

This chapter looks at the new modes of governance from a normative perspective, assessing their democratic legitimacy. Of the four questions underlining the NEWGOV project, therefore, we concentrate on evaluation, discussing only briefly and at the beginning how new modes of governance emerged, evolved and operate. Under new modes of governance we...

The present article explores 'anti-cosmopolitan' arguments that shared institutions above the state, such as there are, are not of a kind that support or give rise to distributive claims beyond securing minimum needs. The upshot is to rebut certain of these 'anti-cosmopolitan' arguments. Section I asks under which conditions institutions are subjec...

In order to understand the recent political and constitutional events of Nepal, and to discern feasible and fair ways to move forward, it is essential to consider the complex composition, circumstances and potential for conflicts by and among the many groups and minorities that constitute the people of Nepal.The future inclusion of marginalized gro...

Introduction Under globalization, individuals' opportunities, life plans and choices are influenced not only by the political decisions of their own national governments, but also by various non-state actors. Regional and international organizations set up by states themselves, and powerful private actors such as transnational corporations, affect...

One area where calls for reform of global regimes and of the actors within them are very vocal and visible concerns the responsibilities of corporations and investors. The normative constraints on the investments of the Norwegian Government Pension Fund may be explained and assessed by such trends and standards. The following reflections first comm...