After 9/11 state actors in different parts of the world and to various degrees decided to give security and counterterrorism measures priority over human rights and fundamental freedoms. In order to legitimize their policy choices, governmental actors used normative argumentation to redefine what is ‘appropriate’ to ensure security. We argue that, in the long run, this may lead to a setback dynamic hollowing out established human and civil rights norms. In this article, we develop a theoretical and analytical framework, oriented along the model of the life cycle of norms, in order to trace ‘bad’ norm dynamics in the field of counterterrorism. We conceptualize the norm erosion process, particularly focusing on arguments such as speech acts put forward by governmental norm challengers and their attempts to create new meaning and understanding. We also draw on convergence theory and argue that when a coalition of norm challengers develops, using the same or similar patterns of arguments, established international normative orders protecting human rights and civil liberties might be weakened over time and a more fundamental process of norm erosion may take place.

The European Convention on Human Rights is rapidly evolving into a cosmopolitan legal order: a transnational legal system in which all public officials bear the obligation to fulfill the fundamental rights of every person within their jurisdiction. The emergence of the system depended on certain deep, structural transformations of law and politics in Europe, including the consolidation of a zone of peace and economic interdependence, of constitutional pluralism at the national level, and of rights cosmopolitanism at the transnational level. Framed by Kantian ideas, the paper develops a theoretical account of a cosmopolitan legal system, provides an overview of how the ECHR system operates, and establishes criteria for its normative assessment.

Fragmentation, institutional overlaps, and norm collisions are often seen as fundamental problems for the global (legal) order. Supposedly, they incite conflict and disorder. However, some scholars have also emphasised functional and normative advantages of the resulting institutional pluralism. We argue that the consequences of the increasing international institutional density are conditional on whether and how different norms, institutions, and authorities are coordinated. In distinction from the fragmentation framework in international law and the regime complexity framework in international relations, this introduction outlines an interface conflict framework that enables important insights into this question and guides the contributions assembled in this issue. It zooms in on the micro-level of conflict between actors that justify incompatible positional differences with reference to different international norms. In particular, the concept of interface conflicts allows studying the conditions under which overlaps and norm collisions become activated in conflicts as well as the ways in which such conflicts are handled. Foreshadowing the main findings of the contributions to this Special Issue, we hold that interface conflicts are neither inevitable nor unmanageable. Most importantly, it seems that, more often than not, conflicts stimulate cooperative forms of management and contribute to the building of inter-institutional order.

We analyse conflicts over norms and institutions in internet governance. In this emerging field, dispute settlement is less institutionalised and conflicts take place at a foundational level. Internet governance features two competing spheres of authority characterised by fundamentally diverging social purposes: A more consolidated liberal sphere emphasises a limited role of the state, private and multistakeholder governance and freedom of speech. A sovereigntist challenger sphere emphasises state control, intergovernmentalism and push against the preponderance of Western institutions and private actors. We trace the activation and evolution of conflict between these spheres with regard to norms and institutions in four instances: the World Summit on the Information Society (WSIS), the World Conference on International Telecommunications (WCIT-12), the fifth session of the United Nations Group of Governmental Experts (UNGGE) and the Budapest Convention of the Council of Europe. We observe intense norm collisions, and strategic attempts at competitive regime creation and regime shifting towards intergovernmental structures by the sovereigntist sphere. Despite these aggressive attempts at creating new institutions and norms, the existing internet governance order is still in place. Hence, authority conflicts in global internet governance do not necessarily lead to fragmentation.

I argue that legal and constitutional theory should avoid the idea of constituent power. It is unhelpful in seeking to understand the authority of law and the place of written constitutions in such an understanding. In particular, it results in a deep ambivalence about whether authority is located within or without the legal order. That ambivalence also manifests itself within positivist legal theory, which explains the affinity between theories of constituent power and legal positivist accounts of authority. Legal theory should then focus on the question of law’s authority as one entirely internal to legal order, thus making the question of constituent power superfluous.

This article argues that paternalism is an organizing principle of the international humanitarian order. The international community is increasingly organized to preserve, protect, and promote human life, reflecting an ethics of care and impulse to intervene for the greater good. This mixture of care and control is captured by the concept of paternalism, which Gerald Dworkin famously defined as ‘the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced’. Paternalism is either present or dormant in many (if not nearly all) interventions that are designed for the betterment of people and the good of humanity. This article has four goals: 1) to reassess and examine the analytical power of this much maligned and misunderstood concept; 2) to consider the dimensions upon which paternalism varies in order to develop the concept’s value for empirical analysis; 3) to speculate how and why paternalism’s form has moved from ‘strong’ to ‘weak’ over the last hundred years; and, 4) to consider whether, why, and when paternalism might be legitimate.

This article contributes to the debate over the whether or not the mainstreaming of Corporate Social Responsibility/Codes of Conduct should be welcomed. It suggests that to grapple with this question requires an engagement with the multiple and necessarily situated performativities (or jursigenerativities) of these codes. The article illustrates the argument through an analysis of two jurisgenerative processes (linked to regulation and to politics) triggered by Codes of Conduct in commercial military markets. It shows that the codes are creating both a hybrid regulatory (or constitutional) network that makes it possible to hold firms accountable and a militarization of politics. It does so by showing that the codes create first-, second- and third-order rules but also processes of misrecognition through distraction, distinction and diffusion that empower military professionals. It draws on a study of three cases involving ArmorGroup, a forerunner and advocate of regulation in military markets. This argument makes sense of the disagreements surrounding the virtues of global constitutionalism by highlighting the tensions that become apparent once it is acknowledged that Codes of Conduct are not only performative but are so in multiple ways. It can provide no easy way to dissolve the specific dilemma this multiple jurisgenerativity poses in the context of military markets specifically. But logically flowing from the argument is a suggestion that encouraging and empowering a broader, non-military/security professional involvement in the debate over the regulation of commercial military markets would be the appropriate way of handling it.

Comparative lawyers have for more than a century sought to increase the understanding of ‘foreign’ legal orders and regulatory systems. Despite some never fully resolved methodological questions, great advances have been made in the comparative study of different regulatory areas both in ‘private’ (contract, tort, corporate, labour) and ‘public’ law (administrative law, environmental law). Comparative constitutional law [CCL] has emerged as a field with particular significance. Born in the context of a politically extremely divided world after the Second World War, CCL has undergone tremendous change in an economically fast-integrating world since the late 1980s. The distinction between ‘liberal’ and ‘socialist’ constitutional orders that characterized early monographical treatments of the subjects has since given way to a very incoherent landscape of varieties of constitutionalism, with enormous consequences for the task of comparative constitutional law. Rather than being able to set side-by-side distinct doctrinal instruments or legal principles that can be associated with a particular constitutional system, the emerging transnational legal-pluralist order demands a methodologically radically opened and methodologically interdisciplinary approach to capture the dynamics of constitutionalization, which characterize today’s processes of public-private norm creation and diffusion.

This article puts forward a constructivist-interpretivist approach to interface conflicts that emphasises how international actors articulate and problematise norm collisions in discursive and social interactions. Our approach is decidedly agency-oriented and follows the Special Issue’s interest in how interface conflicts play out at the micro-level. The article advances several theoretical and methodological propositions on how to identify norm collisions and the conditions under which they become the subject of international debate. Our argument on norm collisions, understood as situations in which actors perceive two norms as incompatible with each other, is threefold. First, we claim that agency matters to the analysis of the emergence, dynamics, management, and effects of norm collisions in international politics. Second, we propose to differentiate between dormant (subjectively perceived) and open norm collisions (intersubjectively shared). Third, we contend that the transition from dormant to open – which we term activation – depends on the existence of certain scope conditions concerning norm quality as well as changes in power structures and actor constellations. Empirically, we study norm collisions in the area of international drug control, presenting the field as one that contains several cases of dormant and open norm collisions, including those that constitute interface conflicts. For our in-depth analysis we have chosen the international discourse on coca leaf chewing. With this case, we not only seek to demonstrate the usefulness of our constructivist-interpretivist approach but also aim to explain under which conditions dormant norm collisions evolve into open collisions and even into interface conflicts.

There are difficult global challenges that need to be addressed. In response, many have argued for the increased constitutionalization of international law. An argument is often also made that the international order is already constitutionalized in some meaningful sense and that there are founding conditions within the international order that represent something like a global constitution. Nevertheless, when surveying the literature on constitutionalization one is often struck by a general ambiguity about what the term means and with how constitutionalization is meant to operate between theory and institutional practice. In particular, there seems to be an overall ambiguity regarding what is being constituted by the processes of constitutionalization, about how these processes operate, and with whether this legal order is in fact creating the type of progressive cosmopolitanism that is often assumed. To address these ambiguities, this article will seek to better understand what appeals to constitutionalization generally mean and to expose key conceptual problems. The goal in doing so is to highlight areas that need greater conceptual attention and to recommend potential solutions, so that more cosmopolitan minded scholars can feel more confident in prescribing constitutionalization as part of their normative catalogue.

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 article presents such defences of state-centric aspects of international law by appeals to subsidiarity, and finds them wanting. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself. Five different interpretations are explored, drawn from Althusius, the US federalists, Pope Leo XIII, and others. One upshot is that the principle of subsidiarity cannot provide normative legitimacy to the state-centric aspects of current international law on its own. It stands in need of substantial interpretation. The versions of subsidiarity that match current practices of public international law are questionable. Many crucial aspects of our legal order must be reconsidered – in particular the standing and scope of state sovereignty.

This article examines the contemporary debate about the spread of transnational law and its sovereigntist critiques. Sovereigntists argue that the rapid development of international and transnational treaties and the emergence of regional human rights courts such as the European Court of Human Rights (ECtHR) undermine sovereignty and thus pose a threat to democratic self-determination. I criticise the new sovereigntism and argue that transnational human rights strengthen rather than weaken democratic sovereignty, and name processes through which rights-norms are contextualised in polities ‘democratic iterations’. I develop the ‘authorship model of democratic legitimacy’ in order to show how constitutional rights and international human rights can be understood to be in harmony and dissonance with one another. The challenge is to think beyond the binarisms of the cosmopolitan versus the civic republican; democratic versus the international and transnational; democratic sovereignty versus human rights law. Distinguishing between state sovereignty and popular sovereignty enables us to do so. By constraining certain sovereign powers of the state, international human rights regimes and courts can enhance popular sovereignty in that they strengthen the rights of the marginalised and the excluded. The article also briefly touches upon the significance of the Alien Tort Statute in US courts from the standpoint of the development of international human rights norms and focuses on Hirst v the United Kingdom, recently adjudicated by the ECtHR, to substantiate the distinction between state and popular sovereignty.

In the global ‘North-West’, liberal democracy is regarded as the universally valid model of political rule that is to be promoted globally via foreign and development policies. Democracy promotion, however, is frequently challenged by justice-related claims. Whereas external democracy promoters claim to help enforce universal individual rights, those resisting democracy promotion point to the collective entitlement to a self-determined political evolution. ‘North-Western’ governments see liberal democracy as the only embodiment of a just political order, but in those countries that are the targets of democracy promotion different understandings of appropriate norms and institutions may exist. Contestation of democracy promotion has, therefore, a crucial normative dimension that can be conceptualized as a series of conflicts over justice. If we conceive of external democracy promotion as a process of interaction instead of unidirectional export or socialization, such justice conflicts constitute a major normative challenge to democracy promoters. The paper argues for an alternative perspective on ‘democracy promotion as interaction’ and presents a typology of justice conflicts that will, in future research, enable us to empirically analyse the normative challenges brought about by the interactive nature of democracy promotion.

This article examines the origins of the concept of constitutional pluralism that has emerged in the last decade and it critically assesses the claims of its advocates. It argues that the claims made on behalf of the concept cannot be sustained and seeks to show that constitutional pluralism is an oxymoronic concept.

Recently, historians of the international system have called into question the significance of the Treaties of Westphalia in 1648 as the moment when the international system formed. One of their primary arguments is that the non-intervention norm typically associated with Westphalian notions of sovereignty developed much later. This paper will examine the early 17th-century debates over the right of the Pope to depose monarchs in the defense of spiritual matters. I read Part III and Part IV of Hobbes’ Leviathan in its intellectual context to see how his theory of sovereignty was partially developed to support a theory of non-intervention. This reading leads to two important contributions to current political science debates. First, it refutes the growing consensus that non-intervention developed as an aspect of sovereignty only in the late 18th and early 19th century. Second, the paper addresses current attempts to assert a right of humanitarian intervention. By exploring similarities between these recent debates and those between Bellarmine and Hobbes in the 17th century, I offer a fresh perspective on what is at stake in current claims to international community.

What role do courts play in advancing or upholding the political ideal that we call ‘the rule of law’? Does the rule of law require that courts should have authority over all other branches of government, including the legislature? And does it impose constraints on the sort of reasoning and decision-making that courts engage in? This article explores an array of possible answers to these questions, and considers the possibility that the ascendancy of courts in a constitution may represent a form of judicial supremacy that looks remarkably like the uncontrolled rule of men, which the rule of law is supposed to prevent. To preclude that possibility, it is particularly important for courts to recognize that their authority is limited in scope and that they should not be guided by any overall political program other than the program of seeing that constitutional constraints on government are upheld.

Ordinarily, militant democracy is about restricting the rights of those who threaten to overthrow the very democracy that guarantees these rights. Hence, militant democracy permits the defence of democracy by disarming its opponents. Turkey’s recent constitutional reform, which arguably is a move away from liberal democracy, forces militant democracy to face up to its transnational application. Can we use militant democracy’s tools to defend not our own, but another democracy? Maybe we can and even should. This article examines the two transnational manifestations of militant democracy. The first is ‘transnational democracy gone militant’, epitomised by the European Union (EU)’s power to enforce liberal democratic standards in its Member States. The second is ‘militant democracy gone transnational’. This manifestation permits treating people rallying in the EU to attack democracy abroad in the same manner in which we are permitted to treat opponents of ‘our own’ democracy. As long as we are dealing with members of the Council of Europe (CoE), the European Convention of Human Rights (ECHR) gives us the instruments we need. Generally, militant democracy is a militant liberal democracy, which is not neutral towards itself, but is also an opponent of every system that is antithetical to it.