Download On the Legitimacy of Human Rights Treaties

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
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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…
* Some challenge the moral authority of such HR bodies to override close-toperfect 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?
1
Kadi and Al Barakaat v. Council of the European Union and Commission of the European Communities (2008)
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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 reframing 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).
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.
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- 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);
- 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;
-4-
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 ).
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
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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;
- which standards of reasoning and range of considerations are appropriate for such
judges, compared to (democratic) legislatures? (Moore, 2001, Ferejohn and Pasquino)
-6-
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1
2
Literature review includes … And cf legitimacy-draft1.doc
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).
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)
3
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
-9-
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.downlo
ad&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.)
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