This paper considers the introduction of a bill of rights to a territory’s constitution as an example of the transnational transfer of norms. Using the case of the Cayman Islands Constitution promulgated in 2009 this analysis looks specifically at the creation of its bill of rights in light of local debate following the legalisation of homosexuality forced by the United Kingdom in 2000. The unique constitutional structure framing the political relationship between the United Kingdom and its Overseas Territories is outlined as explanation for the nature of the Cayman constitution, as well as the historical trajectory leading to it. This trajectory informs the context for the local debate over homosexuality and substantial local resistance to the transfer of an emerging European norm recognizing same-sex marriage to a Caribbean island firm in its Christian heritage. This case interrogates the transference and reproduction of ‘global human rights norms’ in the construction of constitutions in postcolonial societies anticipated by proponents of ‘norm diffusion’ and highlights the contested acceptance offered exogenous norms by the postcolonial society.

This study is an analytical account of the phenomenon of conflicts of rights, tailored to the context of international human rights law. It addresses the nature of conflicts of rights, the relationship between conflicts of rights and the extent and scope of the rights catalogue and the methods used to resolve conflicts. It is structured around the notion of a meta-rule. It argues that a conflict of rights can only be resolved ‘legally’ through the application of a rule that guides the decision maker to a solution. The study addresses the suitability and justification of such rules.

This article interrogates the intellectual foundations of global legal pluralism as a descriptive and normative position, and assesses its core claims with reference to the changing status of individuals in the postnational realm. In order to uncover the normative core of the pluralist position, the article turns to the rich tradition of value pluralism in political philosophy, particularly as articulated by Isaiah Berlin. It argues that as a normative position, pluralism – whether applied to the abstract sphere of values or the concrete realm of legal regimes – is normatively underdetermined, offering too little guidance as to how the conflicts endemic to a pluralistic world ought to be resolved. Unless it is supplemented by other, more substantive principles of political legitimacy such as democracy, freedom, equality, or justice, the principle of pluralism applied to the global legal realm is poised to reproduce, even exacerbate, existing inequalities of power and resources among those whom it affects.

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 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.

The paper discusses recent propositions that, after a period of ‘American exceptionalism’, forms of ‘European exceptionalism’ are now emerging. The paper first asks what makes a political entity ‘exceptionalist’. For this purpose inspiration is sought in the defining features of ‘American exceptionalism’. The paper then discusses whether ‘Europe’ displays comparable features in the fields of international legal policy and domestic rights culture. It also asks whether there are other aspects of European governance which could make it plausible to speak of a European exceptionalism. The paper concludes that it is misleading to use the term ‘European exceptionalism’ because the underlying phenomena are not comparable with what is usually understood as ‘American exceptionalism’.

This article gives an overview of two competing paradigms in the practice of judicial organs for the resolution of norm conflicts, namely the paradigm of a human rights based hierarchy versus the paradigm of systemic integration or conflict avoidance. Judicial practice indicates that norm conflicts typically manifest themselves between human rights obligations on the one hand and other categories of international obligations on the other. Do judicial organs resolve such norm conflicts in a manner that favours human rights obligations? If so, this would support the view in the literature that the international legal order is increasingly operating within a paradigm of hierarchy, with human rights at its apex. The article addresses this question based on the results of a study conducted by 10 authors who have analysed the practice of domestic, regional, supranational and international courts in dealing with norm conflicts between human rights, on the one hand and the other sub-regimes of public international law mentioned above, on the other (de Wet and Vidmar 2011). The article argues that judicial practice reveals no clear or consistent patterns of a human rights based hierarchy in international law can currently be induced from the manner in which courts resolve norm conflicts in international law. Instead, courts avoid resolving norm conflicts within a paradigm of hierarchy and instead remain within a paradigm of systemic integration that is aimed at maximizing the accommodation of competing sub-regimes of public international law.

Debates about ‘constitutionalism’ have become an important trend in WTO scholarship. Despite over two decades of interest, however, a coherent definition of the term and its content remain out of reach. This paper argues that ‘constitutionalism’ should be approached not as something that can be measured or assessed empirically, but rather as a ‘discursive contest’: a debate in which participants intervene on behalf of particular understandings of how the system does or should operate. Approaching constitutionalism as a discursive contest adds to the literature by shifting the focus to an analysis of how ‘constitutional talk’ produces knowledge about the WTO, and how this knowledge in turn structures perceptions about the way government works and the possibilities for action. Providing examples from scholarly debates and WTO practice, the article aims to make concrete the relationship between truth and government and the implications of discursive contests over constitutionalism in the field of WTO law.

The question of constitutionalization cuts through the heart of theoretical debate on the fragmentation of global governance. This paper aims to contribute to this debate through a comparison of global administrative law (GAL) and the conflicts-law approach. While the conflicts-law approach espouses the move towards global constitutionalism, GAL disavows constitutional ambition. I make a twofold argument. First, the differing diagnoses these two approaches make of global governance lead to their distinct proposed solutions. GAL identifies the lack of accountability as the underlying concern of global governance and responds to fragmented global governance through balancing-centred legal management. The conflicts-law approach instead attributes the challenges facing global governance to the ill-designed democratic institutions in nation states and turns to ‘democratic juridification’ as the solution. Second, GAL and the conflicts-law approach reflect two distinct images of constitutionalism. GAL’s ‘constitutional deficit’ suggests its implicit embrace of a version of constitutionalism rooted in the tradition of populist democracy. The conflicts-law approach situates transnational democracy in the conflicts-law process in which inter-regime conflicts are resolved, suggesting a prototype of constitutionalized global governance underpinned by an epistemic understanding of democracy.

Counterterrorist sanctions against individuals are a prime example of pluralism. Multiple claims of constitutional authority (in resolutions of the UN Security Council, under European Union law, and national law) assume to govern the same legal situation. Choosing between these different authorities has great implications for the legal situation of individuals. This paper analyses the legal position of individuals facing this plurality of claims of constitutional authority and how their rights are largely dependent on the choices of domestic courts. Attention will be given not only to procedural and judicial rights but also to the broader implications of individual sanctions as an example of pluralism. What does it mean for popular sovereignty? Do patterns or guidelines emerge of how courts should address multiple claims of authority? The paper takes into account the latest amendments of the UN sanctioning procedure (Resolutions 1988 and 1989 (2011)).

The article explores the relationship between religious pluralism and national-majoritarian models of social cohesion in European human rights jurisprudence. Comparing the German, French and British interpretation of the ‘social cohesion limitation’ of freedom of religion it contends that, at the national level, concerns for social cohesion are fuelled by attitudes towards religious diversity that range from indifference to intolerance and that are difficult to reconcile with the normative premises of religious pluralism in a democratic society. The second section of the article traces the relationship between religious pluralism and social cohesion in the case law of the European Court of Human Rights. The analysis suggests that the diversity of national-majoritarian approaches to social cohesion in Europe prevents the Court from ensuring an effective trans-national protection of religious pluralism. The third section turns to the controversial Lautsi judgments of the European Court of Human Rights to place the Court’s approach to religious minority protection in the context of trans-national judicial politics in the European legal space. The concluding section suggests an alternative approach to religious pluralism and social cohesion that vindicates religious diversity and does justice to the counter-majoritarian telos of human rights protection.

The European Union (EU) is embedded in a pluralistic legal context because of the EU and its Member States’ treaty memberships and domestic laws. Where EU conduct has implications for both the EU’s international trade relations and the legal position of individual traders, it possibly affects EU and its Member States’ obligations under the law of the World Trade Organization (WTO law) as well as the Union’s own multi-layered constitutional legal order. The present paper analyses the way in which the European Court of Justice (ECJ) accommodates WTO and EU law in the context of international trade disputes triggered by the EU. Given the ECJ’s denial of direct effect of WTO law in principle, the paper focuses on the protection of rights and remedies conferred by EU law. It assesses the implications of the WTO Dispute Settlement Understanding (DSU) – which tolerates the acceptance of retaliatory measures constraining traders’ activities in sectors different from those subject to the original trade dispute (Bananas and Hormones cases) – for the protection of ‘retaliation victims’. The paper concludes that governmental discretion conferred by WTO law has not affected the applicability of EU constitutional law but possibly shapes the actual scope of EU rights and remedies where such discretion is exercised in the EU’s general interest.

According to Carl Schmitt, constitutional law and international law are analogous in that they are both forms of political law. Schmitt concludes that neither is open to legitimate judicial enforcement. This paper critically explores Schmitt’s analogy between constitutional and international law. It argues that the analogy can be turned against Schmitt and contemporary sceptics about international law: Since we no longer have any reason to deny the judicial enforceability of domestic constitutional law, the analogy now suggests that there is no reason to think that legitimate judicial enforcement of international law is impossible.

This paper analyses the mutual influence and self-perpetuating cycle of legitimacy of EU legal scholars and the Court of Justice of the European Union (CJEU) in expanding and broadening the free movement rights of Union citizens and their family members. It is argued that legal scholars have played a dual role in promoting the constitutional paradigm of an ever-expanding scope of directly enforceable residence and movement rights in the EU. First, by presenting the expansion of free movement rights as an inevitable outcome of the EU constitutional order based on directly enforceable individual rights, scholars have played a significant role in legitimizing the jurisprudence of the Court in the face of initial resistance from the member states. Second, legal scholars have been an important source for the Court of Justice in developing its case law in this area. The Advocates General in their opinions have drawn on an expanding field of scholarship presenting the expansion of free movement rights as an inherent feature of the EU as a constitutional legal order. Spurred by the objective of turning the EU into more than an internal market, the opinions of the Advocates General have mostly been followed by the Court. Legal scholars have thus served not only as a legitimizing force, but also as a source of inspiration for the perceived constitutionalization of free movement rights in the EU.

Scholars have proposed a number of different ways to improve global accountability, but none has adequately addressed how individuals who commit widespread or systematic nonviolent wrongs can be held to account. I argue that for moral reasons individuals should be held accountable for nonviolent crimes against humanity and that an existing legal institution, the International Criminal Court (ICC), has the authority to prosecute such crimes. The ICC’s prosecutor should start exercising this legal authority because widespread or systematic nonviolent harms can be just as morally wrong as violent ones. What matters on my account is the gravity of a wrong, not whether it was committed violently or nonviolently. I situate these arguments in contemporary discussions of accountability, and provide evidence that individuals can cause widespread or systematic nonviolent harms that meet the legal definition of a crime against humanity in the Rome Statute, the ICC’s foundational document.

Global legal pluralism is concerned, inter alia, with the growing multiplicity of normative legal orders and the ways in which these different orders intersect and are accommodated with one another. The different means used for accommodation will have a critical bearing on how individuals fare within them. This article examines the recent environmental jurisprudence of the European Court of Human Rights to explore some of the means of reaching an accommodation between national legal orders and the European Convention. Certain types of accommodation – such as the margin of appreciation given to states by the Court – are well known. In essence, such mechanisms of legal pluralism raise a presumptive barrier which generally works for the state and against the individual rights-bearer. However, the principal focus of the current article is on a less well-known, recent set of pluralistic devices employed by the Court, which typically operate presumptively in the other direction, in favour of the individual. First, the Court looks to instances of breaches of domestic environmental law (albeit not in isolation); and second, it places an emphasis on whether domestic courts have ruled against the relevant activity. Where domestic standards have been breached or national courts have ruled against the state, then, presumptive weight is typically shifted towards the individual.