ANDREAS FOLLESDAL 20100615

On the Legitimacy of Human Rights Treaties: the Issues the volume should address some of these issues, adding clear value to recent contributions, especially Besson and Tasioulas, 2010, Meyer, 2009…

The literature reveals a broad range of concerns that may be subsumed under the label ‘legitimacy deficit of international hr treaties’ – in a very wide sense. Section 1 includes a partial list. Some of these issues may ultimately be deemed only tangentially concerned with legitimacy, others seem strikingly unrelated. It is thus of interest in its own right to provide an overall theory of legitimacy that explicates the term and helps bring clarity to which issues and concerns merit more attention under the heading of legitimacy1. Section 2 identifies some of the peculiar aspects of human rights treaties and their organs that challenge proposed accounts of legitimacy even further. Section 3 explores some of the most salient conceptual issues to be resolved by the contributions as a whole – getting the plumbing right.. Section 4 suggests that one way forward would be to explore which sensible ‘social functions’ that hr treaties may serve – it seems that they serve several different roles, and this has implications for their content and legitimacy Section 5 starts to identify some of the challenges and responses to be made on behalf of particular treaties, and on how best to respond to criticism that the members of treaty organs may pose unacceptable risks of domination over the citizens of states that have ratified the various treaties..

1 The Puzzles: Why and when do issues of legitimacy arise concerning Human Rights Treaties?

The legitimacy of legal and judicial authority in general, as these issues arise for international law and treaties – the sources and limits to political obligation: the moral duty to obey political authorities… Democratic accountability is perhaps only one mechanism of legitimation, which may not work well in intl arrangements – and especially not for human rights treaties, one of whose objectives is to limit the domain of majoritarian decision-making…2 - ‘Why do powerful nations obey powerless rules?’ – (Franck, 1990, 3; a locus classicus for many lawyers..) - The problems of judicial review in general must be considered – in democracies (Bellamy, 2007, Waldron, 2006, etc), and elsewhere…

The legitimacy of legal and judicial authority of human rights treaties 1) Many actors stop and ask: with what right does this human rights treaty or body seek to regulate us? Some cases: * some challenge the material content of the norms, eg as Western, cf ‘Asian values’ criticism against human rights norms, or doubted as lacking quality control (Alston, 1984); * some question particular judgments/recommendations by treaty organs, eg the ECtHR on hijab…

______Orreveien 10 [email protected] N-0789 Oslo, Norway (+47) 99 23 50 02 (mob) http://www.follesdal.net * Some challenge the moral authority of such HR bodies to override close-to-perfect democracies, witness the backlash against hr bodies in the Nordic states (Follesdal and Wind, 2009) and UK (Campbell et al., 2001). 2) the UN Secretary General’s calls for Reform of the Human Rights treaty body system (Secretary General, 2005). Why? What would count as improvements that make the treaty body system more effective/credible/efficient/legitimate? Some are worried, others hail, the multiplication – and hence fragmentation – of human rights treaty bodies. Some of the risks are overlapping jurisdiction, forum shopping, excessive duplicating reporting obligations, conflicting/inconsistent jurisprudence, [possible examples: tensions freedom of speech vs freedom of religion vs freedom from racist speech…]. In response, some urge a ‘unified treaty body’, or a common ‘World Court of Human Rights’…

3) Some actors object that this hr treaty organ is not doing its job. – In particular, the European Court of Human Rights (ECtHR) is overburdened, in part because some countries flaunt their obligations. The Court’s reputation suffers insofar as it offers delayed and therefore possibly ineffectual, hasty or slipshod protection. [This concerns in part the effectiveness of the body in reaching its objective, but may in part be due to a mismatch in the eyes of the public about what the mandate of the body is.. and what it in fact has been authorised to do.. – both of which relate to legitimacy in a broader sense…]

4) Some actors face competing/conflicting commands, eg * when an international hr treaty body finds national legislation to be in conflict with the treaty, yet the citizenry and authorities think the national tradition should prevail - Thus the worries concerning the “Legitimacy Deficit” of the EU3… * in conflicts between regional and international treaties. E.g., 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.1 Should national authorities respect global obligations - or regional judgments? Why should either set of obligations prevail? * under fragmented international law: should human rights treaties or WTO have priority? Which hr treaty bodies should be obeyed in such conflicts? 5) some actors observe ‘variable legal compliance’ among signatory states; this sometimes BUT NOT ALWAYS give rise to questions of why should we obey even when others don’t?

Among the more theoretical issues addressed in the literature now: 6) Should hr treaties be seen as parts of (proto) global administrative law, or of the contested ‘constitutionalization’ of international law? – a normative re-framing of international law that may serve to solidify and mask the illegitimate international transfer of power (Koskenniemi, 2003). 7) what is the relationship between such functions that human rights treaties may serve, and the function of philosophical, nonlegal/extralegal human rights norms that some regard as an emerging cosmopolitan constitution, that will provide a moral foundation for international law? (Beitz, 2009, Buchanan, 2004).

1 Kadi and Al Barakaat v. Council of the European Union and Commission of the European Communities (2008)

- 2 - 8) The multifarious human rights regimes challenge traditional conceptions of sovereignty even of established European democracies, and establish new divisions of authority between the national and international level. - The accession of the EU to the European Convention on Human Rights under the Lisbon Treaty raises several such challenges, and in addition urges questions about the effects on our understanding of statehood etc.

What exactly is “legitimacy talk” thought to achieve in such varied cases? Is it to ask whether there are good reasons to obey, and/or to show that the actor does indeed have a political obligation to comply..? - Is the role of HR law mainly to guard against illegitimacy, rather than to secure legitimacy?

2 Challenges for the legitimacy of hr treaties - we need a revised understanding of the relevance of state consent (Bodansky 1999 at 604; Wolfrum 9; Consent is no longer as central as it has traditionally been conceived (– though jus cogens/peremptory norms have long not required consent) (Kumm 2004; Meyer, 2009); the consent of ‘illegitimate’ states seems largely irrelevant.. - much international law is committed to ‘subsidiarity’ as a central norm – that they supplement state authority. Many treaties serve to resolve collective action problems among states, and are justified only insofar as necessary to do so. One central issue is then: for what problems are human rights treaties a solution? In what ways should subsidiarity guide the objectives, the content, procedures and legal effects of hr treaty bodies? Examples of such subsidiarity include: consent by states, the requirement of exhaustion of local remedies, the margin of appreciation, the leeway accorded states in responding to treaty body findings, the ‘soft’ effects of such review… - treaties are much more difficult to change than ‘ordinary’ constitutions, which inter alia leads to more dynamic interpretation, increasing the risk that members of treaty organs dominate the rest of us. - while exit from a treaty often remains a legal option (thus the sense of coercion is different than that of individuals within a state as traditionally conceived), exit is often politically impossible eg from ECHR/EU membership. - Unlike other treaties, HR treaties do not mainly regulate reciprocal relationships among states, and a state’s obligations are not obviously reduced by other states’ noncompliance. - the members of various treaty bodies often sit as independent experts, not representatives/delegates of the signatory states. Thus they are at best held accountable to the best interests of citizens through quite different mechanisms than indirect electoral voting. - the treaty organs often take on tasks across traditional divisions, e.g. they investigate and examine state reports/inquiries; they may entertain individual complaints similar to the tasks of courts, and their ‘general comments’ contribute to legislative functions insofar as they provide authoritative interpretations of treaty obligations.

3 On Legitimacy –Relevant Conceptual Issues to be resolved The volume should help lay out the intricate relationship between senses of legitimacy: legal, social, normative – moral vs political; with regard to the issues at hand: the human rights treaties This may require us to disentangle the various - objects of legitimation (Adjudicatory or monitoring bodies, treaties);

- 3 - - Mechanisms of legitimation (esp. the value of ratification/consent, cf. Buchanan; effective achievement of stated objectives…); - factors that affect the perceived need for legitimacy (among power holders, subjects…)…

-Possibly distinguish the rightful authority to exercise power vs legitimacy that confers an obligation to obey.. e.g. Bodansky: ‘concerns …grounds for deferring to another’s decision, even in the absence of coercion or rational persuasion.’ (603)4 - We may address the intricate relationship between material, instrumental/output and procedural conditions for legitimacy, including the alleged need for democratic procedures..: On Effectiveness: a) Are the treaties’ objectives normatively sound? b) Do the treaties secure sufficient compliance? c) Do the treaties achieve their objectives sufficiently well? - If fully complied with/ if partially complied with… – we must distinguish between the legal effects – eg implementation in the domestic legal order, and the resultant effects ‘on the ground’…

On Legality: Dynamic interpretation as challenge How ensure an interpretation that is - sufficiently loyal to the text consented to by states insofar as that is necessary, and - sufficiently responsive to the objectives of the treaty – insofar as these are normatively acceptable.., and - sufficiently attentive to the best interests of citizens; eg. Who has the authority to decide whether a reservation is compatible with the object and purpose of CEDAW?

Some provisional considered judgments might be that the international multi-level legal order as a whole must satisfy four Contested Constitutional Principles (CCPs), suitably revised for the multi-level setting of which hr treaties are a part: Human rights values, the Rule of Law, Subsidiarity, and Democratic Accountability. Human rights treaties are part of this ‘global basic structure’ thus need not satisfy all of these on their own.

4 Some steps toward a theory of legitimacy of hr treaties

- What are the social functions/rationale for human rights treaties? This question seems central when we seek to assess their normative legitimacy (Raz, 1994; Raz, 2001; Buchanan Buchanan and Powell, 2008, Buchanan and Keohane, 2006, Buchanan, 2009? Buchanan, 2004; Buchanan, 1999; Beitz, 2001; Beitz, 2009; Caney, 2009 ).

- 4 - The objectives of hr treaties are different from other treaties: the aim not mainly to resolve collective action problems by mutual self constraint – where sovereignty is constrained only insofar as necessary to secure common objectives. Cf Simmons, 2009: “Rational functional accounts seem to miss the mark: their focus on reciprocity and institutions as focal points3 underscore more of a contractual model to treaty commitments than is appropriate for the case of human rights.”

Originally: standards to regulate states’ behaviour toward own citizens? Some hr treaties seem originally intended, e.g. in the ECHR, as standards to be applied by the ECtHR to regulate the extent and use of sovereign power of member states over citizens and other residents on the territory. - in fact, different legal HR norms seem to regulate quite different actions by quite a variety of actors: it is not only the ECtHR, but also understood as triggers for various forms of international intervention (Beitz) etc. However, there are very many different actors and actions where international HR norms are used/abused – or where they may come to serve a helpful role, ranging from Corporate Social Responsibility, conditions for membership and ‘club goods’ in regional organisations, criteria for international development assistance, standards for international organisations (Wolfrum 2008), components of ‘International Constitutional Law’ (Besson, 2009)… This raises questions about what the objectives of these treaties are: (they may vary across states/governments (stable, democratic, weak/failed…) - intervention triggered by HR violations? Cf Beitz etc - Trust building mechanisms for the domestic population, - Safeguards and trust building among individuals in federal arrangements - Coordination when free riding is a problem, sucker’s payoff is bad, relative standing is crucial eg asylum; high, costly labour standards; There is no obvious reason why the same HR norms should regulate all these actors and their actions…

Now: Standards for multi-level governance institutions… Under globalisation/multi-level governance, human rights may have to regulate various non- state actors, including (quasi)federal legal orders, international organisations, the EU, the UN, and various private actors such as transnational corporations… Possibly consider the desiderata Buchanan/Keohane suggest5

5 Implications for the legitimacy of specific HR treaties and their organs: courts, committees - and their members What can which regional or intl treaty organs be expected to do better than other institutions? Reasons may stem from how courts and other treaty organs reason: interpretation, casuistic application to new cases, peer esteem and international recognition as important constraints on adjudication … how do such accounts affect the worries about unaccountable and unpredictable judges?6 What is the appropriate role of experts in this setting? Cf Wolfrum 24.

Against this background: Whence the legitimacy of judges and organ members generally as experts nominated/picked by various states? While democratic electoral accountability is small, other accountability mechanisms are actually operative to some degree, eg. professional norms etc;

- 5 - - which standards of reasoning and range of considerations are appropriate for such judges, compared to (democratic) legislatures? (Moore, 2001, Ferejohn and Pasquino)

- 6 - References

ALSTON, P. 1984. Conjuring up new human rights: a proposal for quality control. American Journal of International Law, 78, 607-612. BEETHAM, D. & LORD, C. 1998. Legitimacy and the European Union, London, Longman. BEITZ, C. R. 2001. Human rights as a common concern. American Political Science Review, 95, 269-282. 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. In: DUNOFF, J. L. & TRACHTMAN, J. P. (eds.) Ruling the World? Constitutionalism, International Law, and Global Governance. Cambridge: Cambridge University Press. BESSON, S. & TASIOULAS, J. 2010. The Philosophy of International Law, Oxford, Oxford University Press. BODANSKY, D. 2008. The concept of legitimacy in international law. In: WOLFRUM, R. & ROBEN, V. (eds.) Legitimacy in International Law. Heidelberg: Springer. BRUINSMA, F. J. 2006. Judicial identities in the European Court of Human Rights. In: VAN HOEK, A., HOL, A. M., JANSEN, O., RIJPKEMA, P. & WIDDERSHOVEN, R. (eds.) Multilevel governance in enforcement and adjudication. Intersentia. BUCHANAN, A. 1999. Recognitional legitimacy and the state system. Philosophy and Public Affairs, 28, 46-78. BUCHANAN, A. 2004. Justice, legitimacy, and self-determination: moral foundations for international law, Oxford, Oxford University Press. BUCHANAN, A. 2009? The Legitimacy of International Law. In: BESSON, S. & TASIOULAS, J. (eds.) The Philosophy of International Law. Oxford: Oxford University Press. BUCHANAN, A. & KEOHANE, R. O. 2006. The legitimacy of global governance institutions. Ethics and International Affairs, 20, 405-437. BUCHANAN, A. & POWELL, R. 2008. Survey Article: Constitutional Democracy and the Rule of International Law: Are they Compatible? Journal of Political Philosophy, 16, 326-349. CAMPBELL, T., EWING, K. D. & TOMKINS, A. 2001. Skeptical essays on human rights, Oxford, Oxford University Press. CANEY, S. 2009. The responsibilities and legitimacy of economic international institutions. In: MEYER, L. (ed.) Legitimacy, justice and public international law. Cambridge: Cambridge University Press. EASTON, D. 1965. A systems analysis of political life, New York, Wiley. FEREJOHN, J. 2002. Judicializing politics, politicizing law. Law and Contemporary Problems, 65, 41-68. FEREJOHN, J. & PASQUINO, P. Deliberative institutions. FOLLESDAL, A. & WIND, M. 2009. Judicial Review in the Nordic Countries - Special Issue of Nordic Journal of Human Rights. FRANCK, T. M. 1990. The power of legitimacy among nations, New York, Oxford University Press. GARGARELLA, R. 2006. Should deliberative democrats defend the judicial enforcement of social rights? In: BESSON, S. & MARTI, J. L. (eds.) Deliberative democracy and its discontents. Aldershot: Ashgate.

- 7 - GERARDS, J. 2008? Judicial Deliberations in the European Court of Human Rights. KAGAN, R. A. American and European Ways of Law: Six Entrenched Differences [Online]. Columbia University - Legal Theory Workshop. Available: http://www.law.columbia.edu/center_program/legal_theory/papers/spring06? exclusive=filemgr.download&file_id=941782&rtcontentdisposition=filename %3DRAKonati10-30-05.doc [Accessed 2006]. KOSKENNIEMI, M. 2003. Legitimacy, Rights and Ideology, Notes Towards a Critique of the New Moral Internationalism. Associations: Journal for Legal and Social Theory, 7, 349-373. LOTH, M. 2008? Courts in quest for legitimacy: A comparative approach. MEYER, L. (ed.) 2009. Legitimacy, justice and public international law, Cambridge: Cambridge University Press. MOORE, M. 2001. Justifying the Natural Law Theory of Constitutional Interpretation. Fordham Law Review, 69, 2087-2117. PECZNIK, A. 2002. Why Constitution? What Constitution? Constraints on Majority Rule. In: BERGGREN, N., KARLSON, N. & NERGELIUS, J. (eds.) Why Constitutions Matter. New Brunswick, NJ: Transaction. RAZ, J. 1986. The morality of freedom, Oxford, Clarendon Press. RAZ, J. 1994. The obligation to obey: revision and tradition. Ethics in the public domain. Oxford: Clarendon Press. RAZ, J. 2001. On the authority and interpretations of constitutions: Some preliminaries. In: ALEXANDER, L. (ed.) Constitutionalism: Philosophical foundations. Cambridge: Cambridge University Press. SECRETARY GENERAL, U. N. 2005. Larger freedom: towards development, security and human rights for all. A/59/2005 [Online]. Available: http://daccess- ods.un.org/access.nsf/Get?Open&DS=A/59/2005&Lang=E. SHAPIRO, M. 2002. The Success of Judicial Review and Democracy. In: SHAPIRO, M. & STONE SWEET, A. (eds.) On law, politics and judicialization. Oxford: Oxford University Press. SIMMONS, B. A. 2009. Mobilizing for Human Rights: International Law in Domestic Politics, New York, Cambridge University Press. STONE, A. 1992. Abstract Constitutional Review and Policy making in Western Europe. In: JACKSON, D. W. & TATE, C. N. (eds.) Comparative judicial review and public policy. Westport, Conn: Greenwood Press. SWEET, A. S. 2000. Governing with judges: Constitutional Politics in Europe, Oxford, Oxford University Press. TUSHNET, M. 2005. On judicial review. Dissent. WALDRON, J. 2006. The core of the case against judicial review. The Yale Law Journal, 115, 1346-1406. WALUCHOW, W. J. 2007. A common law theory of judicial review: The living tree, New York, Cambridge University Press. WEBER, M. On three pure forms of legitimate governance. WEILER, J. H. H. W. H. U. & MAYER, F. 1995. European Democracy and its critique: Five Uneasy Pieces. EUI Working Paper RSC No 95/11, and Harvard Jean Monnet Working Paper 1/1995. WOLFRUM, R. 2008. Legitimacy in International Law from a Legal Perspective. In: WOLFRUM, R. & ROBEN, V. (eds.) Legitimacy in International Law. Heidelberg: Springer.

- 8 - 1 Literature review includes … And cf legitimacy-draft1.doc 2 cf Erika de Wet in WOLFRUM, R. 2008. Legitimacy in International Law from a Legal Perspective. In: WOLFRUM, R. & ROBEN, V. (eds.) Legitimacy in International Law. Heidelberg: Springer.136; Buchanan- Keohane 2006 BUCHANAN, A. & KEOHANE, R. O. 2006. The legitimacy of global governance institutions. Ethics and International Affairs, 20, 405-437., 416-7). 3 E.g. "By what authority, if any -- understood in the vocabulary of normative political theory -- can the claim of European law to be both constitutionally superior and with immediate effects in the polity be sustained. Why should the subjects of European law in the Union, individuals, courts, governments et cetera feel bound to observe the law of the Union as higher law, in the same way that their counterparts in, say, the USA are bound, to and by, American federal law?"(Weiler 1995 WEILER, J. H. H. W. H. U. & MAYER, F. 1995. European Democracy and its critique: Five Uneasy Pieces. EUI Working Paper RSC No 95/11, and Harvard Jean Monnet Working Paper 1/1995., 4)

4 (BUCHANAN, A. 2004. Justice, legitimacy, and self-determination: moral foundations for international law, Oxford, Oxford University Press., RAZ, J. 1986. The morality of freedom, Oxford, Clarendon Press.., WEBER, M. On three pure forms of legitimate governance., BODANSKY, D. 2008. The concept of legitimacy in international law. In: WOLFRUM, R. & ROBEN, V. (eds.) Legitimacy in International Law. Heidelberg: Springer., WOLFRUM, R. 2008. Legitimacy in International Law from a Legal Perspective. In: WOLFRUM, R. & ROBEN, V. (eds.) Legitimacy in International Law. Heidelberg: Springer., Meyer, MEYER, L. (ed.) 2009. Legitimacy, justice and public international law, Cambridge: Cambridge University Press.; Dobson …BEETHAM, D. & LORD, C. 1998. Legitimacy and the European Union, London, Longman., EASTON, D. 1965. A systems analysis of political life, New York, Wiley.,

5 A standard of legitimacy for global governance institutions should inter alia "1. It must provide a reasonable public basis for coordinated support for the institutions in question, on the basis of moral reasons that are widely accessible in spite of the persistence of significant moral disagreement—in particular, about the requirements of justice. 2. It must not confuse legitimacy with justice but nonetheless must not allow that extremely unjust institutions are legitimate. 3. It must take the ongoing consent of democratic states as a presumptive necessary condition, though not a sufficient condition, for legitimacy. 4. Although the standard should not make authorization by a global democracy a necessary condition of legitimacy, it should nonetheless promote the key values that underlie demands for democracy. 5. It must properly reflect the dynamic character of global governance institutions: the fact that not only the means they employ, but even their goals, may and ought to change over time.// 6. It must address the two problems we encountered earlier: the problem of bureaucratic discretion and the tendency of democratic states to disregard the legitimate interests of foreigners." (417-18) Three substantive criteria of legitimate institutions: Minimum moral acceptability in terms of HR; Comparative benefit - compared to alternative institutions within reach p 422, Institutional Integrity - a match betw its stated goals and actual performance.

6 (MOORE, M. 2001. Justifying the Natural Law Theory of Constitutional Interpretation. Fordham Law Review, 69, 2087-2117., BRUINSMA, F. J. 2006. Judicial identities in the European Court of Human Rights. In: VAN HOEK, A., HOL, A. M., JANSEN, O., RIJPKEMA, P. & WIDDERSHOVEN, R. (eds.) Multilevel governance in enforcement and adjudication. Intersentia., FEREJOHN, J. 2002. Judicializing politics, politicizing law. Law and Contemporary Problems, 65, 41-68., GARGARELLA, R. 2006. Should deliberative democrats defend the judicial enforcement of social rights? In: BESSON, S. & MARTI, J. L. (eds.) Deliberative democracy and its discontents. Aldershot: Ashgate, GERARDS, J. 2008? Judicial Deliberations in the European Court of Human Rights.,KAGAN, R. A. American and European Ways of Law: Six Entrenched Differences [Online]. Columbia University - Legal Theory Workshop. Available: http://www.law.columbia.edu/center_program/legal_theory/papers/spring06? exclusive=filemgr.download&file_id=941782&rtcontentdisposition=filename%3DRAKonati10-30-05.doc [Accessed 2006].,LOTH, M. 2008? Courts in quest for legitimacy: A comparative approach.,PECZNIK, A. 2002. Why Constitution? What Constitution? Constraints on Majority Rule. In: BERGGREN, N., KARLSON, N. & NERGELIUS, J. (eds.) Why Constitutions Matter. New Brunswick, NJ: Transaction., STONE, A. 1992. Abstract Constitutional Review and Policy making in Western Europe. In: JACKSON, D. W. & TATE, C. N. (eds.) Comparative judicial review and public policy. Westport, Conn: Greenwood Press., SHAPIRO, M. 2002. The Success of Judicial Review and Democracy. In: SHAPIRO, M. & STONE SWEET, A. (eds.) On law, politics and judicialization. Oxford: Oxford University Press., TUSHNET, M. 2005. On judicial review. Dissent, WALUCHOW, W. J. 2007. A common law theory of judicial review: The living tree, New York, Cambridge University Press, SWEET, A. S. 2000. Governing with judges: Constitutional Politics in Europe, Oxford, Oxford University Press.)