No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 20 September 2018
In this article, I examine the attempt to apply proportionality balancing (PB) to the co-ordination of the relations between governance regimes, which I call ‘inter-scalar PB’, from the perspective of competing institutional arrangements of global governance. Observing inter-scalar PB becoming a legal technique of management, I argue that it be reconceived as a narrative framework within which the fundamental values and principles of individual governance regimes can be politically contested without antagonism. I first discuss the role PB has played in the interaction between the law of state immunity and international investment law and then take a closer look at the features of inter-scalar PB as intimated in those instances: simplism, normativism, institutionalism and legalism. I suggest that the complex fundamental issues concerning the relationship between governance regimes are left out in the proportionality analysis-mediated resolution of regime-induced conflicts, disclosing the depoliticization tendency in inter-scalar PB. Juxtaposing it with the indicator project in international human rights advocacy, I conclude that both are jurispathic and reflect the rationalist propensity in the legal administration of global governance. PB, reconceived as a language in which values, conflicts, and interests of each governance regime can be argued and narrated as part of the politics of reconstructing global governance, will help to recast global governance in more jurisgenerative terms.
Associate Professor, University of Warwick School of Law, UK; JSD, LLM, Yale Law School; LLM, LLB, National Taiwan University [[email protected]]. The ideas in this article were first presented at the ‘Symposium on Scaling Global Governance’ organized by the Institute of Advanced Studies at Durham University. This article has benefited from comments from the participants in the ‘Legitimacy Across Scales’ panel discussion at the same symposium. I am grateful to both anonymous reviewers for their critical comments and helpful suggestions. Surabhi Ranganathan’s editorial help is also heartily acknowledged. The usual disclaimer applies. Comments are welcome.
1 Offe, C., ‘Governance: An “Empty Signifier”?’, (2009) 16 Constellations 550CrossRefGoogle Scholar; Rosanvallon, P., Counter-Democracy: Politics in an Age of Distrust (2008), 259–63CrossRefGoogle Scholar.
2 See Dunoff, J.L. and Trachtman, J.P., ‘A Functional Approach to International Constitutionalization’, in Dunoff, J. L. and Trachtman, J.P. (eds.), Ruling the World? Constitutionalism, International Law, and Global Governance (2009), 3CrossRefGoogle Scholar.
3 Compare Kingsbury, B., Krisch, N. and Stewart, R.B., ‘The Emergence of Global Administrative Law’, (2005) 68 Law and Contemporary Problems 15Google Scholar, with Koskenniemi, M., ‘The Fate of Public International Law: Between Technique and Politics’, (2007) 70 Modern Law Review 1CrossRefGoogle Scholar. Cf. Simma, B. and Pulkowski, D., ‘Of Planets and the Universe: Self-contained Regimes in International Law’, (2006) 17 EJIL 483CrossRefGoogle Scholar. For the variations on the definition of regime in current literature see Young, M.A., ‘Introduction: The Productive Friction between Regimes’, in Young, M.A. (ed.), Regime Interaction in International Law: Facing Fragmentation (2012), 1 at 4–11Google Scholar. I shall come back to the concept of regime later.
4 See Fischer-Lescano, A. and Teubner, G., ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’, (2004) 25 Michigan Journal of International Law 999Google Scholar.
5 See J.L. Dunoff, ‘A New Approach to Regime Interaction’, in Young (ed.), supra note 3, at 136, 139–44.
6 Ibid., at 137–9, 158–73.
7 Salughter, A.M., A New World Order (2004), 131–65Google Scholar.
8 As will be further defined, governance regimes are closely related to special legal regimes but they are not identical. Governance regimes are understood as the sites where standards, guidelines, and other norms that underpin the operation of international law, including special legal regimes, are created.
9 See generally Krasner, S. (ed.), International Regimes (1983)Google Scholar.
10 See Kingsbury, Krisch and Stewart, supra note 3. See also Dunoff, supra note 5, at 159.
11 See Krisch, N. and Kingsbury, B., ‘Introduction: Global Governance and Global Administrative Law in the International Legal Order’, (2006), 17 EJIL 1CrossRefGoogle Scholar.
12 Young, supra note 3; Fischer-Lescano and Teubner, supra note 4; Teubner, G., Constitutional Fragments: Societal Constitutionalism and Globalization (2012), 150–73CrossRefGoogle Scholar. It is noteworthy that regime interactions are not necessarily conducted in the form of conflicts. See Dunoff, supra note 5, at 137–8.
13 See Michaels, R. and Pauwelyn, J., ‘Conflict of Norms or Conflict of Law?: Different Techniques in the Fragmentation of Public International Law’, (2012) 22 Duke Journal of International and Comparative Law 349Google Scholar; J. Crawford and P. Nevill, ‘Relations between International Courts and Tribunals: The Regime Problem’ in Young (ed.), supra note 3, at 235, 236–47.
14 Ralf Michaels and Joost Pauwelyn distinguish between conflicts of norms and conflicts of laws: the former refers to legal conflicts within a legal system (or a regime) whereas the latter to those between legal systems or regimes. Michaels and Pauwelyn, supra note 13, at 350–1.
15 See, e.g., Craven, M., ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’, (2000) 11 EJIL 489CrossRefGoogle Scholar; Vandevelde, K.J., ‘Sustainable Liberalism and the International Investment Regime’ (1998) 19 Michigan Journal of International Law 373Google Scholar.
16 Cf. Dunoff, supra note 5, at 159.
17 Ibid., at 138.
18 See also Kingsbury, B., The Concept of “Law” in Global Administrative Law, (2009) 20 EJIL 23, at 55–6CrossRefGoogle Scholar.
19 For the purpose of elegance, I simply refer to the analytic framework of proportionality analysis and its component of balancing as proportionality balancing (PB). For the importance of balancing in proportionality analysis, see Möller, K., The Global Model of Constitutional Rights (2012), 13CrossRefGoogle Scholar. See also Sweet, A. Stone and Mathews, J., ‘Proportionality Balancing and Global Constitutionalism’, (2008) 47 Columbia Journal of Transnational Law 72, at 87–9Google Scholar. In an insightful comparative analysis of the German and the Canadian constitutional jurisprudence, Dieter Grimm observes of the relative weight given to balancing in the judicial exercise of proportionality balancing in both jurisdictions. Grimm, D., ‘Proportionality in Canadian and German Constitutional Jurisprudence’, (2007) 57 University of Toronto Law Journal 383CrossRefGoogle Scholar. For a critical discussion of the relationship between proportionality and balancing in the law see also Luterán, M., ‘The Lost Meaning of Proportionality’, in Huscroft, G., Miller, B.W., and Webber, G. (eds.), Proportionality and the Rule of Law: Rights, Justification, Reasoning (2014), 21 at 23–6CrossRefGoogle Scholar.
20 See, e.g., Fischer-Lescano and Teubner, supra note 4; Teubner, supra note 12; Kingsbury, supra note 18, at 55–6; Joerges, C., ‘The Idea of a Three-dimensional Conflicts Law as Constitutional Form’, in Joerges, C. and Petersmann, E.-U. (eds.), Constitutionalism, Multilevel Trade Governance and International Economic Law (2011), 413Google Scholar. But cf. Michaels and Pauwelyn, supra note 13, at 356–7.
21 This is what I call regime-induced conflicts. See note 35, infra. But cf. Crawford and Nevill, supra note 13, at 247, 259.
22 See Section 2, infra.
23 To avoid confusion, I interchangeably use the terms ‘inter-scalar PB and the ‘inter-scale of PB’ when referring to the exercise of PB in resolving regime-induced conflicts.
24 See Somek, A., Individualism (2008), 140–3, 235–8CrossRefGoogle Scholar. Cf. Supiot, A., Governance by Numbers: The Making of a Legal Model of Allegiance (translated by S. Brown, 2017), 42–4, 49–51Google Scholar.
25 See text at notes 159–60, infra.
26 E.g., van Aaken, A., ‘Defragmentation of Public International Law Through Interpretation: A Methodological Proposal’, (2009) 16 Indiana Journal of Global Studies 483, at 502–6CrossRefGoogle Scholar; Schill, S.W., ‘Cross-Regime Harmonization through Proportionality Analysis: The Case of International Investment Law, the Law of State Immunity and Human Rights’, (2012) 27 ICSID Review 87CrossRefGoogle Scholar; Pulkowski, D., The Law and Politics of International Regime Conflict (2014), 225CrossRefGoogle Scholar.
27 Young, supra note 3, at 4. Notably, James Crawford and Penelope Nevill trace the use of the term ‘regime’ in international law to the nineteenth century where it referred to a ‘legal framework which governed and controlled a particular area of conduct, usually concerning an area of territory’. Crawford and Nevill, supra note 13, at 258 (emphasis added).
28 Krasner, S.D., ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’, (1982) International Organization 185, at 186CrossRefGoogle Scholar.
29 Crawford and Nevill, supra note 13, at 258–9.
30 ILC Study Group, ‘Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, UN Doc. A/CN.4/L.702 (18 July 2006), para. 12.
31 Young, supra note 3, at 11.
32 Ibid.
33 Compare Fischer-Lescano and Teubner, supra note 4, at 1000–1, with Dunoff, supra note 5, at 139. For a much more restrictive, territory-based understanding of regimes, see Crawford and Nevill, supra note 13, at 259.
34 Along the same line, Crawford and Nevill seem to use regime conflict and rule conflict interchangeably. See Crawford and Nevill, supra note 13, at 236.
35 For this reason, a conflict between a special legal regime and general international law is still one induced by the emergence of the former, although the latter is not considered a regime in legal scholarship. See ibid., at 259. I use regime-induced conflicts rather than regime conflicts to include conflicts between regimes and those between a special legal regime and general international law.
36 For similar views but with different foci, see Klabbers, J., Treaty Conflicts and the European Union (2009)Google Scholar; Jeutner, V., Irresolvable Norm Conflicts in International Law: The Concept of a Legal Dilemma (2017)CrossRefGoogle Scholar.
37 Kuo, M.-S., ‘Taming Governance with Legality? Critical Reflections upon Global Administrative Law as Small-c Global Constitutionalism’, (2011) 44 New York University Journal of International Law and Politics 55, at 98–9Google Scholar.
38 Cohen-Eliya, M. and Porat, I., Proportionality and Constitutional Culture (2013), 10, 25–7CrossRefGoogle Scholar.
39 See Stone Sweet and Mathews, supra note 19, at 111–59; Sweet, A. Stone and Mathews, J., ‘Proportionality and Rights Protection in Asia: Hong Kong, Malaysia, South Korea, Taiwan – Whither Singapore?’, (2017) 29 Singapore Academy of Law Journal 774Google Scholar.
40 See Möller, supra note 19, at 179–205.
41 See generally Alexy, R., A Theory of Constitutional Rights (translated by J. Rivers, 2002Google Scholar). See also Stone Sweet and Mathews, supra note 19, at 88–90; Somek, supra note 24, at 149; Cohen-Eliya and Porat, supra note 38, at 16–23; Barak, A., Proportionality: Constitutional Rights and Their Limitations (2012), 340, 378Google Scholar. Cf. Bomhoff, J., Balancing Constitutional Rights: The Origins and Meanings of Postwar Legal Discourse (2013), 18–19CrossRefGoogle Scholar. But cf. Grimm, supra note 19, at 393–7. For the centrality of balancing to Robert Alexy’s discussion of proportionality analysis, see Petersen, N., Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (2017), 45–7CrossRefGoogle Scholar. This formula of weighing also applies to the situation in which rights are in conflict. See Barak, ibid., at 342.
42 Stone Sweet and Mathews, supra note 19, at 87–8; Möller, supra note 19, at 179; Perju, V., ‘Proportionality and Freedom—An Essay on Method in Constitutional Law’, (2012) 1 Global Constitutionalism 334, at 339–40, 350–6CrossRefGoogle Scholar. Aharon Barak discriminatingly identifies the closeness of proportionality to ‘reasonableness in the strong sense’. Barak, supra note 41, at 377–8.
43 Stone Sweet and Mathews, supra note 19. See also Möller, supra note 19.
44 See Kumm, M., ‘The Idea of Socratic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review’, (2010) 4 Law and Ethics of Human Rights 141CrossRefGoogle Scholar. See also Möller, supra note 19.
45 I shall come back to the concept of translation in Section 3, infra.
46 M. Antaki, ‘The Rationalism of Proportionality’s Culture of Justification’, in Huscroft, Miller, and Webber (eds.), supra note 19, at 284, 291–4. See also Klatt, M. and Meister, M., The Constitutional Structure of Proportionality (2012), 8–12CrossRefGoogle Scholar. But cf. Somek, supra note 24, at 143, 149.
47 For the cultural evocations of mathematical objectivity surrounding the idea of proportionality, see Supiot, supra note 24, at 75–7.
48 Kingsbury, supra note 18, at 55–6.
49 Ibid., at 55.
50 See also Joerges, C., ‘Unity in Diversity as Europe’s Vocation and Conflicts Law as Europe’s Constitutional Form’, in Nicke, R. and Greppi, A. (eds.), The Changing Role of Law in the Age of Supra- and Transnational Governance (2014), 127–76Google Scholar; Watt, H. Muir, ‘Conflicts of Laws Unbounded: The Case for a Legal-Pluralist Revival’, (2016) 7 Transnational Legal Theory 313CrossRefGoogle Scholar; Krisch, N., Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010), 12, 295–6Google Scholar.
51 E.g., Guntrip, E., ‘International Human Rights Law, Investment Arbitration and Proportionality Analysis: Panacea or Pandora’s Box?’, EJIL: Talk!, 7 January 2014, available at www.ejiltalk.org/international-human-rights-law-investment-arbitration-and-proportionality-analysis-panacea-or-pandoras-box/ (accessed 23 July 2018)Google Scholar; Finke, J., ‘Regime-collisions: Tensions Between Treaties (and How to Solve Them)’, in Tams, C.J. et al. (eds.), Research Handbook on the Law of Treaties (2016), 415Google Scholar.
52 See T. Endicott, ‘Proportionality and Incommensurability’, in Huscroft, Miller, and Webber (eds.), supra note 19, at 311.
53 Schill, supra note 26, at 108.
54 See, e.g., Saluka Investments BV v. The Czech Republic, UNCITRAL, Partial Award (17 March 2006), para. 306; Joseph C Lemire v. Ukraine, ICSID Case No. ARB/06/18, Decision on Jurisdiction and Liability (14 January 2010), para. 285; Total SA v. The Argentine Republic, ICSID Case No. ARB/04/01, Award (8 December 2010), para. 123; El Paso Energy International Company v. The Argentine Republic, ICSID Case No. ARB/03/15, Award (31 October 2011), paras. 241–3, 365–74. For further commentary on these cases, see Schill, supra note 26, at 107; Sweet, A. Stone and Grisel, F., The Evolution of International Arbitration: Judicialization, Governance, Legitimacy (2017), 198–203Google Scholar. See also Henckels, C., Proportionality and Deference in Investor-State Arbitration: Balancing Investment Protection and Regulatory Autonomy (2015)CrossRefGoogle Scholar. Cf. Kingsbury, B. and Schill, S.W., ‘Public Law Concepts to Balance Investors’ Rights with State Regulatory Actions in the Public Interest—The Concept of Proportionality’, in Schill, S.W. (ed.), International Investment Law and Comparative Public Law (2010), 75CrossRefGoogle Scholar; Mouyal, L.W., International Investment Law and the Right to Regulate: A Human Rights Perspective (2016), 31–6CrossRefGoogle Scholar.
55 This is mostly obvious in the investor-state arbitration. Notably, Alec Stone Sweet and Florian Grisel suggest the application of PB in international commercial arbitration when arbitrators need to enforce mandatory law and public policy. See Stone Sweet and Grisel, supra note 54, at 172–86.
56 Ibid., at 197–8, 244–5.
57 Cf. VanDuzer, J.A., ‘Sustainable Development Provisions in International Trade Treaties: What Lessons for International Investment Agreements?’, in Hindelang, S. and Krajewski, M. (eds.), Shifting Paradigms in International Investment Law: More Balanced, Less Isolated, Increasingly Diversified (2016), 142 at 173CrossRefGoogle Scholar.
58 See Schill, S.W., ‘Reforming Investor-State Dispute Settlement: A (Comparative and International) Constitutional Law Framework’, (2017) 20 Journal of International Economic Law 649, at 650–1CrossRefGoogle Scholar.
59 See Mouyal, supra note 54, at 17–19; Harten, G.V. and Loughlin, M., ‘Investment Treaty Arbitration as a Species of Global Administrative Law’, (2006) 17 EJIL 121, at 146CrossRefGoogle Scholar; Kaushal, A., ‘Revisiting History: How the Past Matters for the Present Backlash Against the Foreign Investment Regime’, (2009) 50 Harvard International Law Journal 491, at 511–12Google Scholar.
60 Kulick, A., Global Public Interest in International Investment Law (2012), 258–9CrossRefGoogle Scholar. But cf. Stone Sweet and Grisel, supra note 54, at 245–6.
61 Schill, supra note 26.
62 Ibid., at 91–101.
63 Ibid., at 89–90, 104–5.
64 ‘Nothing in Art. 54 shall be construed as derogating from the law in force in any Contracting State relating to immunity of that State or of any foreign State from execution.’ Art. 55 of the ICSID Convention. Although ‘execution’ is chosen for the purpose of Art. 55, which is thus distinguished from both Arts. 53 and 54 where ‘enforce’ and ‘enforcement’ are adopted, Andrea K. Bjorklund suggests that their meanings are identical when it comes to the attachment of the respondent host state’s property. Bjorklund, A.K., ‘State Immunity and the Enforcement of Investor-State Arbitral Awards’, in Binder, C. et al. (eds.), International Investment Law for the 21st Century: Essays in Honour of Christoph Schreuer (2009), 302 at 306CrossRefGoogle Scholar.
65 Bjorklund notes that the provision for the enforcement of arbitral awards ‘in accordance with the rules of the procedure of the territory where the award is relied on’ in Art. III and the public policy exception in Art. V(2)(b) are susceptible to the interpretation that state immunity from enforcement is unaffected, despite variations on state practice. Ibid., at 308–9.
66 As the scope of the ICSID Convention is narrower, some investor-state arbitrations have to rely on the New York Convention for the enforcement of the award. See ibid., at 308.
67 See also ibid., at 321. Cf. Stone Sweet and Grisel, supra note 54, at 2–3.
68 See Priem, C., ‘International Investment Treaty Arbitration as a Potential Check for Domestic Courts Refusing Enforcement of Foreign Arbitration Awards’, (2014) 10 New York University Journal of Law &. Business 189, at 196–217Google Scholar; Annacker, C., ‘Investment Treaty Arbitration as a Tool to “Enforce” Arbitral Awards?’, Global Arbitration Review, 16 November, 2014Google Scholar.
69 The awards Schill discusses include Desert Line Projects LLC v. Republic of Yemen (ICSID Case No. ARB/05/17, Award, 5 February 2008), Saipem SpA v. People’s Republic of Bangladesh (ICSID Case No. ARB/05/7, Award, 30 June 2009), and Chevron Corporation (USA) and Texaco Petroleum Company (USA) v. The Republic of Ecuador (PCA Case No. 34877, UNCITRAL, Partial Award on the Merits, 30 March 2010). Schill, supra note 26, at 104–5.
70 Ibid., at 104–5.
71 See cases cited at note 54, supra.
72 Schill, supra note 26, at 106–8.
73 See ibid., at 105–6.
74 Schill also acknowledges this discrepancy. Ibid.
75 See Born, G., ‘A New Generation of International Adjudication’, (2012) 61 Duke Law Journal 775, at 831–44Google Scholar.
76 See B. Simma and T. Kill, ‘Harmonizing Investment Protection and International Human Rights: First Steps Towards a Methodology’, in Binder et al., (eds.), supra note 64, at 678, 682–91. See also Mouyal, supra note 54, at 47–65.
77 See Simma and Pulkowski, supra note 3, at 498–500. Cf. Roberts, A., ‘Triangular Treaties: The Extent and Limits of Investment Treaty Rights’, (2015) 56 Harvard International Law Journal 353, at 363Google Scholar.
78 Schill, supra note 26, at 96–8, 102–8.
79 See Schreuer, C., ‘Interaction of International Tribunals and Domestic Courts in Investment Law’, in Rovine, A.W., Contemporary Issues in International Arbitration and Mediation: The Fordham Papers (2010), 71, at 84–6Google Scholar. In this light, a parallel can be drawn between the municipal court of the forum state and ‘distributed administration’ in global administrative law, which means ‘domestic regulatory agencies’ that ‘act as part of the global administrative space’ and ‘take decisions on issues of foreign or global concern’. See Kingsbury, Krisch and Stewart, supra note 3, at 21–2.
80 Schill, supra note 26, at 112–15.
81 Ibid.
82 Ibid., at 117–18. The result is likely to move in the direction of what has been called the ‘restrictive theory of immunity’. See Bjorklund, supra note 64, at 304.
83 Born, supra note 75, at 831.
84 See note 41 and accompanying text, supra.
85 Michaels and Pauwelyn, supra note 13, at 356.
86 Ibid., at 368.
87 I shall further address the issues surrounding the question of applicability in Section 4, infra.
88 See text at note 45, supra.
89 See generally Glanert, S. (ed.), Comparative Law - Engaging Translation (2014)CrossRefGoogle Scholar.
90 Eskridge, W.N. Jr., Dynamic Statutory Interpretation (1994), 128–32Google Scholar.
91 Lessig, L., ‘Fidelity in Translation’, (1993) 71 Texas Law Review 1165Google Scholar.
92 Ibid., at 1168–9.
93 See Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (translated by W. Rehg, 1996), 326–8Google Scholar; Luhmann, N., Law as a Social System (translated by K.A. Ziegert, 2004), 94Google Scholar.
94 Cf. Simma and Pulkowski, supra note 3, at 492–3.
95 Shelton, D., ‘International Human Rights Law: Principled, Double, or Absent Standards’, (2007) 25 Law and Inequality 467, at 491–505Google Scholar.
96 Bailey, J.L., ‘States, Stocks, and Sovereignty: High Seas Fishing and the Expansion of State Sovereignty’, in Gleditsch, N.P. (ed.), Conflict and the Environment (1997), 215 at 220CrossRefGoogle Scholar.
97 With such a double move of reduction, the issues concerning the opaqueness of global governance are likely to be further aggravated.
98 See Borensztein, E., De Gregorio, J., and Lee, J.-W., ‘How Does Foreign Direct Investment Affect Economic Growth?’, (1998) 45 Journal of International Economics 115CrossRefGoogle Scholar; Li, X. and Liu, X., ‘Foreign Direct Investment and Economic Growth: An Increasingly Endogenous Relationship’, (2005) 33 World Development 393CrossRefGoogle Scholar.
99 ICSID Convention Art. 27 (1).
100 Salacuse, J.W., ‘The Emerging Global Regime for Investment’, (2010) 51 Harvard International Law Journal 427, at 446–8Google Scholar.
101 Even when issues concerning the law of state immunity are brought up before the investor-state arbitral tribunal, they are likely to be subsumed under the concept of the host state’s right to regulate, although it is more of sovereignty than right. Cf. Mouyal, supra note 54, at 79–80.
102 For the idea of global administration and its role in the analysis of global governance, see Kingsbury, Krisch and Stewart, supra note 3, at 18–27.
103 See also Simma and Pulkowski, supra note 3, at 490–4.
104 Kingsbury, supra note 18, at 56.
105 Ibid., at 55–6; Kingsbury, B., ‘International Law as Inter-Public Law’, in Richardson, H.S. and Williams, M.S. (eds.), Moral Universalism and Pluralism: NOMOS XLIX (2008), 167 at 190–1Google Scholar.
106 Kuo, M.-S., ‘The Concept of “Law” in Global Administrative Law: A Reply to Benedict Kingsbury’, (2009) 20 EJIL 997, at 1002–3CrossRefGoogle Scholar.
107 Perju, supra note 42.
108 Somek, supra note 24, at 149 (emphasis in original).
109 Alexy, supra note 41, at 102–7.
110 Ibid., at 408–10.
111 For the quest for objectivity in law, see Alexander, L., ‘Legal Objectivity and the Illusion of Legal Principles’, in Klatt, M. (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy (2012), 115CrossRefGoogle Scholar.
112 Kuo, M.-S., ‘Inter-Public Legality or Post-Public Legitimacy? Global Governance and the Curious Case of Global Administrative Law as a New Paradigm of Law’, (2012) 10 ICON 1050, at 1064–7Google Scholar. Cf. Jeutner, supra note 36, at 105–6.
113 For a discussion of the concept of juridification and its relationship with legalism, see Silverstein, G., Law’s Allure: How Law Shapes, Constrains, Saves and Kills Politics (2009), 1–10Google Scholar.
114 Kuo, supra note 106, at 1000–1.
115 See Bloodgood, E.A., ‘The Interest Group Analogy: International Non-Governmental Advocacy Organisations in International Politics’, (2011) 37 Review of International Studies 93CrossRefGoogle Scholar. See also Kuo, M.-S., ‘(Dis)Embodiments of Constitutional Authorship: Global Tax Competition and the Crisis of Constitutional Democracy’, (2009) 41 George Washington International Law Review 181, at 229–31, 239–40Google Scholar.
116 See also Fischer-Lescano and Teubner, supra note 4, at 1002–3.
117 Kuo, supra note 112, at 1067–72. Cf. Rosanvallon, supra note 1, at 260–3.
118 See Somek, A., The Cosmopolitan Constitution (2014), 264–6, 272–3CrossRefGoogle Scholar.
119 See generally Davis, K.E., et al., Governance by Indicators: Global Power through Quantification and Rankings (2012)CrossRefGoogle Scholar; Cingranelli, D., ‘The Cingranelli and Richards (CIRI) Human Rights Data Project’, (2010) 32 Human Rights Quarterly 401CrossRefGoogle Scholar. See also McGrogan, D., ‘Human Rights Indicators and the Sovereignty of Technique’, (2016) 27 EJIL 385CrossRefGoogle Scholar.
120 McGrogan, supra note 119, at 393–7.
121 Donnelly, J., ‘The Virtues of Legalization’, in Meckled-Garcia, S. and Çalı, B. (eds.), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law (2006), 61 at 63–5Google Scholar.
122 Mechlem, K., ‘Treaty Bodies and the Interpretation of Human Rights’, (2009) 42 Vanderbilt Journal of Transnational Law 905, at 919–22Google Scholar; Harrington, J., ‘The Human Rights Committee, Treaty Interpretation, and the Last Word’, EJIL: Talk!, 5 August 2015, available at www.ejiltalk.org/the-human-rights-committee-treaty-interpretation-and-the-last-word (accessed 25 July 2018)Google Scholar.
123 With the duplication of human rights provisions in domestic legislation and treaties, national renderings of a human right play an increasingly important role in the implementation of international human rights law. See Waldron, J., “Partly Laws Common to All Mankind”: Foreign Law in American Courts (2012), 24–47Google Scholar. This brings to the fore the long overlooked third primary source of international law, the ‘general principles of law recognized by civilized nations’, which sits alongside treaty and customs in the Statute of the International Court of Justice Art. 38(1). See Thirlway, H., The Sources of International Law (2014), 94–115Google Scholar.
124 See Neumayer, E., ‘Do International Human Rights Treaties Improve Respect for Human Rights?’, (2005) 49 Journal of Conflict Resolution 925CrossRefGoogle Scholar.
125 Moyn, S., The Last Utopia: Human Rights in History (2010), 20–41, 100–6Google Scholar.
126 Ibid., at 213–27.
127 Donnelly, supra note 121. Compare Hathaway, O.A., ‘Do Human Rights Treaties Make a Difference?’, (2002) 111 Yale Law Journal 1935, at 2006–7CrossRefGoogle Scholar, with Goodman, R. and Jinks, D., ‘Measuring the Effects of Human Rights Treaties’, (2003) 14 EJIL 171CrossRefGoogle Scholar.
128 McGrogan, supra note 119, at 388.
129 Ibid., at 399.
130 See ibid., at 399–401 (quoting Davis, K.E., Kingsbury, B. and Merry, S.E., ‘Indicators as a Technology of Global Governance’, (2012) 46 Law and Society Review 71, at 81)CrossRefGoogle Scholar.
131 See K.E. Davis, B. Kingsbury, and S.E. Merry, ‘Introduction: Global Governance by Indicators’, in Davis et al. (eds.), supra note 119, at 3.
132 Alain Supiot notes the age-old ‘fascination with numbers and their systematising powers’ as a counter to the man-made law that is susceptible to arbitrary will. Non-human law can take different forms in different periods of history. In ancient times, the law of nature that embodies the harmony of the cosmos is one example. See Supiot, supra note 24, at 67–73.
133 M. Kumm and A.D. Welen, ‘Human Dignity and Proportionality: Deontic Pluralism in Balancing’, in Huscroft, Miller and Webber (eds.), supra note 19, at 67, 69–70. See also Luterán, supra note 19, at 29–41.
134 Gaus, G.F., ‘Public Reason and the Rule of Law’, in Shapiro, I. (ed.), The Rule of Law: NOMOS XXXVI (1994), 328Google Scholar. For the embeddedness of proportionality in law, see Luterán, supra note 19, at 23–9.
135 McGrogan, supra note 119, at 397. For the rationalist propensity in proportionality balancing, see Antaki, supra note 46.
136 See also F. Schauer, ‘Proportionality and the Question of Weight’, in Huscroft, Miller and Webber (eds.), supra note 19, at 173, 173–4. For the intellectual roots of this development, see Supiot, supra note 24, at 78–120.
137 McGrogan, supra note 119, at 392 (quoting M. Oakeshott, Rationalism in Politics and Other Essays (1962), 1, 6).
138 McGrogan, supra note 119, at 408.
139 For the perceived scientific character of proportionality and balancing, see Aleinikoff, T.A., ‘Constitutional Law in the Age of Balancing’, (1987) 96 Yale Law Journal 943, at 992–3CrossRefGoogle Scholar; Jackson, V.C., ‘Being Proportional About Proportionality’, (2004) 21 Constitutional Commentary 803, at 832Google Scholar. As suggested in Section 3, Robert Alexy’s ‘Law of Balancing’ and associating it with ‘legal scales’ and what he calls ‘Weight Formula’ testify to this point. Alexy, supra note 41, at 401–14; see also Klatt and Meister, supra note 46, at 10–12.
140 Cf. Supiot, supra note 24, at 48–9, 75–6, 93–7.
141 Cf. Michaels and Pauwelyn, supra note 13, at 356–7.
142 Somek, supra note 118, at 131, 272–3. See also Kuo, supra note 112, at 1072.
143 Michaels and Pauwelyn, supra note 13, at 368.
144 See Stone Sweet and Mathews, supra note 19, at 82–9. Cf. Kuo, supra note 112, at 1068–70.
145 Kuo, supra note 112, at 1071–2.
146 See also Aleinikoff, supra note 139, at 992–4; Jackson, supra note 139, at 832–3.
147 The concept of jurisgenesis and the critique of the jurispathic vis-à-vis jurisgenerative character of state law are central to the work of the late legal scholar, Robert Cover. In Cover’s view, a fundamental distinction needs to be drawn between the law-making processes and the resulting legal precepts. The jurisgenerative envisages a nomos imbued with meaning whereas the jurispathic is a legal system underpinned by administration and force, if necessary. See Cover, R.M., ‘The Supreme Court, 1982 Term – Foreword: Nomos and Narrative’, (1983) 97 Harvard Law Review 4CrossRefGoogle Scholar. Notably, Neil Walker transmutes the normative meaning of jurisgenesis at the heart of Cover’s critique. By ‘jurisgenerative’, he simply describes the processes and activities that contribute to the emergence of transnational law. See Walker, N., Intimations of Global Law (2015), 52CrossRefGoogle Scholar.
148 See Kuo, supra note 37, at 99. But cf. Dunoff, supra note 5, at 149–56.
149 See Kuo, supra note 112, at 1074.
150 Compare Antaki, supra note 46, at 305–8, with Saaty, T.L., Mathematical Principles of Decision Making (Principia Mathematica Decernendi) (2009), 43–4Google Scholar.
151 See Schauer, supra note 136, at 184.
152 Compare Antaki, supra note 46, at 287–94, 300–3, with Stone Sweet and Mathews, supra note 19, at 86–9. See also Rivers, J., ‘Proportionality and Variable Intensity of Review’, (2006) 65 CLJ 174, at 176CrossRefGoogle Scholar.
153 Kuo, supra note 112, at 1069–70.
154 Ibid., at 1070–2.
155 Kumm, supra note 44. Cf. Perju, supra note 42, at 334.
156 See Kuo, supra note 112, at 1072–4. Cf. Jeutner, supra note 36, at 105–10.
157 See Cover, supra note 147, at 4–5, 11–19.
158 See generally de Guevara, B. Bliesemann (ed.), Myth and Narrative in International Politics: Interpretive Approaches to the Study of IR (2016)Google Scholar.
159 See Miskimmon, A., O’Loughlin, B., and Roselle, L. (eds.), Forging the World: Strategic Narratives and International Relations (2017)CrossRefGoogle Scholar. See also Flockhart, T., ‘Towards a Strong NATO Narrative: From a “Practice of Talking” to a “Practice of Doing”’, (2012) 49 International Politics 78CrossRefGoogle Scholar; Salla, V.D., ‘Political Myth, Mythology and the European Union’, (2010) 48 Journal of Common Market Studies 1CrossRefGoogle Scholar.
160 Kahn, P.W., The Cultural Study of Law: Reconstructing Legal Scholarship (1999), 15–16, 48–50, 73–4, 99–100Google Scholar.
161 Ibid., at 108–11; Koskenniemi, M., The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2002), 11–97Google Scholar.
162 D. Kennedy, ‘The Mystery of Global Governance’, in Dunoff and Trachtman (eds.), supra note 2, at 37, 43–54.
163 See also Klabbers, supra note 36, at 227.