Published online by Cambridge University Press: 27 February 2017
There is an inherent tension in international human rights law between affirming a universal substantive vision of human dignity and respecting the diversity and freedom of human cultures. Although understanding and securing human rights in international law requires us to grapple with that conflict, classic notions of state sovereignty cannot adequately address the issue. The principle of subsidiarity, instead, gives us a conceptual tool to mediate the polarity of pluralism and the common good in a globalized world and helps us make sense of international human rights law. I argue that we should regard subsidiarity as a structural principle of international human rights law.
1 The sources of the epigraphs to this article are Violini, Lorenza, Il Principio di sussidiarietà, in Sussidiarietà: La Riforma Possibile 53, 57 (Vittadini, Giorgio ed., 1998)Google Scholar (quoting Rudolf von Jhering) (my trans.); Roosevelt, Eleanor, In Your Hands, Address at the United Nations (Mar. 27, 1958)Google Scholar, at <http://www.udhr.org/history/inyour.htm>.
1 Although I will show below that the concept is considerably more complex, for now a very simplified working definition can suffice: subsidiarity is the principle that each social and political group should help smaller or more local ones accomplish their respective ends without, however, arrogating those tasks to itself.
2 Much of the American literature on subsidiarity focuses especially on its comparison to United States federalism. George Bermann’s early and exhaustive study is still the standard-bearer of this work. Bermann, George A., Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 Colum. L. Rev. 332, 336 (1994)Google Scholar; see also Edwards, Denis J., Fearing Federalism’s Failure: Subsidiarity in the European Union, 44 Am. J. Comp. L. 537 (1996)CrossRefGoogle Scholar; Neuman, Gerald L., Subsidiarity, Harmonization, and Their Values: Convergence and Divergence in Europe and the United States, 2 Colum. J. Eur. L. 573 (1996)Google Scholar; Gary Vause, W., The Subsidiarity Principle in European Union Law—American Federalism Compared, 27 Case W. Res. J. Int’l L. 61 (1995)Google Scholar.
3 See, e.g., Klimisch, Annette & Krueger, Birgit, Decentralized Application of E. C. Competition Law: Current Practice and Future Prospects, 24 Eur. L. Rev. 463 (1999)Google Scholar; Lenaerts, Koen, The Principle of Subsidiarity and the Environment in the European Union: Keeping the Balance of Federalism, 17 Fordham Int’l L. J. 846 (1994)Google Scholar; Murray Tabb, William, Environmental Impact Assessment in the European Community: Shaping International Norms, 73 Tul. L. Rev. 923 (1999)Google Scholar; Wesseling, Rein, Subsidiarity in Community Antitrust Law: Setting the Right Agenda, 22 Eur. L. Rev. 35 (1997)Google Scholar.
4 See generally Sussidiarietà e Ordinamenti Costituzionali: Esperienze a confronto (Rinella, A. et al. eds., 1999)Google Scholar (describing subsidiarity in a variety of different constitutional systems). With respect to the lively debate in Italy over the principle of subsidiarity as a constitutional concept, see Sussidiarietà: La Riforma Possibile, supra note *.
5 The preamble “reaffirms, with due regard for the powers and tasks of the Community and the Union and the principle of subsidiarity,” the rights resulting from a variety of other sources of law, and the Charter also specifies in Article 51 that it is “addressed to the institutions and bodies of the Union with due regard for the principle of subsidiarity.” Charter of Fundamental Rights of the European Union, 2000 O.J. (C 364) 1 [hereinafter Charter].
6 See, e.g., Alston, Philip & Weiler, Joseph H. H., An ‘Ever Closer Union’ in Need of a Human Rights Policy: The European Union and Human Rights, in The EU and Human Rights 3, 27 (Alston, Philip ed., 1999)Google Scholar, available at <http://www.jeanmonnetprogram.org/papers/papers99.html>.
7 At this level, the relationship between subsidiarity and human rights is almost entirely unexplored, both within EU law and even more outside it. But see Cata Backer, Larry, Harmonization, Subsidiarity and Cultural Difference: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems, 4 Tulsa J. Comp. & Int’l L. 185 (1997)Google Scholar; Murphy, Daniel T., Subsidiarity and/or Human Rights, 29 U. Rich. L. Rev. 67 (1994)Google ScholarPubMed; Shelton, Dinah, Subsidiarity, Democracy and Human Rights, in Broadening the Frontiers of Human Rights: Essays on Honour of Asbjørn Eide 43 (Gomien, Donna ed., 1993)Google Scholar. Many authors who have addressed “subsidiarity” in the context of human rights have in effect used the term to refer to ideas only partially related to the principle of subsidiarity in its fuller and original sense, as I seek to use it here. Very commonly, for example, “subsidiarity” is used to refer to the relationship between certain international human rights treaties and domestic law, represented by clauses common to human rights treaties that say, basically, that nothing in the treaty shall limit or restrict rights and freedoms guaranteed under the national law of a state party; such provisions make the international agreement “subsidiary” to domestic law, and hence it is not uncommon to refer to the relationship as a form of “subsidiarity.” See, e.g., Besselink, Leonard F. M., Entrapped by the Maximum Standard: On Fundamental Rights, Pluralism and Subsidiarity in the European Union, 35 Common Mkt. L. Rev. 629 (1998)CrossRefGoogle Scholar. Others, especially in the context of the Council of Europe’s human rights system, have used “subsidiarity” as a synonym for the European Court of Human Rights’ doctrine of the margin of appreciation, or to refer generally to the idea of devolving decisions to local authorities. See, e.g., Mahoney, Paul, Universality Versus Subsidiarity in the Strasbourg Case Law on Free Speech: Explaining Some Recent Judgments, 1997 Eur. Hum. Rts. L.R. 364 Google Scholar.
8 Millon-Delsol, Chantal, L’Etat subsidiaire: Ingérence et non-ingérence de L’Etat: Le Principe de subsidiarité aux fondements de l’histoire européenne 15–27 (1992)Google Scholar.
9 Id. at 35-45.
10 Id. at 47-60; see also Endo, Ken, The Principle of Subsidiarity: From Johannes Althusius to Jacques Delors, 44 Hokkaido L. Rev. 2064, 2043 (1994)Google Scholar.
11 Millon-Delsol, supra note 8; Endo, supra note 10; see also Angelo Rinella, Il Principio di sussidiarieta: Definizioni, comparazioni e modello d ‘analisi, in Sussidiarietà e Ordinamenti costituzionali: Esperienze a Confronto, supra note 4, at 3,8-18. Benjamin Llamazon, instead, traces the lineage of the idea from Plato and Aristotle, through Augustine to von Humboldt, Mill, and Nietzsche. Llamazon, Benjamin S., Subsidiarity: The Term, Its Metaphysics and Use, 21 Aquinas: Rivista Internazionale di Filosofia 44, 47 (1978)Google Scholar.
12 See Kohler, Thomas C., Quadragesimo Anno (1931), in A Century of Catholic Social Thought: Essays on Rerum Novarum and Nine Other Key Documents 27, 29–30 (Weigel, George & Royal, Robert eds., 1991)Google Scholar; cf. Millon-Delsol, supra note 8, at 5 (“The idea of subsidiarity aims at going beyond the alternative between classic liberalism and centralizing socialism . . . . [I]t abandons socialist egalitarianism in favor of the value of dignity; it abandons philosophical individualism in favor of a structured and federated society.”) (my trans.).
13 Leo, XIII, Rerum Novarum: Encyclical Letter on Capital and Labor (May 15, 1891), in 2 The Papal Encyclicals 1878-1903, at 241 (Carlen, Claudia ed., 1990)Google Scholar. Papal encyclicals are typically denominated by the first few words of their Latin texts; in this case, Rerum Novarum means “New Things.”
14 Id at 250-51, para. 36.
15 Pius XI, Quadragesimo Anno: Encyclical Letter on Reconstruction of Social Order (May 15,1931), in 3 The Papal Encyclicals 1903-1939, supra note 13, at 421, para. 39.
16 In the Latin text, for the word “help” Pius used subsidium. Pius, XI, Litterae Encyclicae Quadragesimo Anno, in 23 Acta apostolicaesedis 177, 203 (1931)Google Scholar. The Latin term originated in the ancient Roman military—the subsidium was that portion of the troops held in reserve, to be able to assist the front lines when in need—but came also to mean more generally “support,” “help,” “assistance,” or “protection.” See Oxford Latin Dictionary 1849 (Glare, P. G. W. ed., 1982)Google Scholar.
17 Pius XI, supra note 15, at 428, paras. 79-80.
18 See Pizzolato, Filippo, Note sul principio di sussidiarietà, 12 Rivista Internazionale dei Diritti dell ’Uomo 493 (1999)Google Scholar.
19 See Endo, supra note 10, at 2029-26.
20 See Llamazon, supra note 11, at 45, 49, 56.
21 See Kossel, Clifford, Global Community and Subsidiarity, 8 Communio: Int’l. Cath. Rev. 37, 46 (1981)Google Scholar. Although the notion here of man as a social being by nature is basically Aristotelian, at the same time it can be thought to turn on its head Aristotle’s conclusion that the polis exists prior to the individual. Aristotle, Politics, bk. I, ch. 2, §§5-16.
22 Endo, supra note 10, at 2026 (noting that subsidiarity presupposes that “societies are necessary for the development of any person, therefore for the ‘concretisation’ of human dignity”) (footnote omitted).
23 Cf. Pizzolato, supra note 18, at 498 (“Starting from this conception of man as a being structurally open to solidary relationships, . . . subsidiarity becomes an ordering principle for living together in a way that aspires to be just and to extend itself potentially to everyone.”) (my trans.).
24 “Higher” here refers to an association whose scope and authority are broader, thus more completely expressive of the total ambit of human interactions. One could say “larger” instead, even though the size of the group is not, of itself, at issue.
25 Cf. Pizzolato, supra note 18, at 497 (relating subsidiarity to “organicism”).
26 Llamazon, supra note 11, at 56.
27 Finnis, John, Natural Law and Natural Rights 147 (1980)Google Scholar (arguing that the source of the principle of subsidiarity is that “only in action . . . does one fully participate in human goods”).
28 These do not apply only to the state, of course. Because I am most interested in arriving here at the intersections between subsidiarity and human rights, I will focus on the application of subsidiarity to the state, but the prior discussion should make clear that these are principles that would apply to each of the social groups constituting every form of human association.
29 Endo, supra note 10, at 2054.
30 Id. at 2053.
31 Llamazon, supra note 11, at 59.
32 Kossel, supra note 21, at 46.
34 Millon-Delsol, supra note 8, at 8 (my trans.).
35 Cf. Llamazon, supra note 11, at 44-45 (noting subsidiarity’s opposition to totalitarianism); Pizzolato, supra note 18, at 502 (emphasizing incompatibility of subsidiarity with a totalitarian state).
36 Millon-Delsol, supra note 8, at 9.
37 Kossel, supra note 21, at 48.
39 Id. at 46.
40 See Llamazon, supra note 11, at 51 (deriving from the common good of society the conclusion that “diversity in society should be given full free play”). But see Skillen, James W. & McCarthy, Rockne M., Three Views of Social Pluralism: A Critical Evaluation, in Political Order and the Plural Structure of Society 357, 382–89 (Skillen, James W. & McCarthy, Rockne M. eds., 1991)Google Scholar (calling into question “the adequacy of the principle of ‘subsidiarity’ as the normative principle that undergirds social pluralism,” and concluding that “[t]he subsidiarity principle, which assumes the autonomy of the parts within the whole, does not. . . seem to safeguard society from moving in either a collectivist or an individualist direction. It does not appear strong enough to resist purely pragmatic tendencies whether coming from above or from below.”).
41 See Maccormick, Neil, Questioning Sovereignty: Law, State, and Nation in the European Common Wealth 151–55 (2000)Google Scholar (distinguishing “market subsidiarity,” “communal subsidiarity,” “rational legislative subsidiarity,” and “comprehensive subsidiarity”); cf. Pizzolato, supra note 18, at 501-04.
42 See Pizzolato, supra note 18, at 496.
43 Cf. Ann Glendon, Mary, A World Made New; Eleanor Roosevelt and the Universal Declaration of Human Rights 174–75 (2001)Google Scholar; Dicke, Klaus, The Founding Function of Human Dignity in the Universal Declaration of Human Rights, in The Concept of Human Dignity in Human Rights Discourse 111 (Kretzmer, David & Klein, Eckart eds., 2002)Google Scholar; Feldman, David, Human Dignity as a Legal Value—Part I, 1999 Pub. L. 682, 690 Google Scholar; Schachter, Oscar, Human Dignity as a Normative Concept, 77 AJIL 848 (1983)CrossRefGoogle Scholar.
44 Universal Declaration of Human Rights, GA Res. 217A, Dec. 10, 1948, pmbl., UN GAOR, 3d Sess., pt. I, Res., at 71, UN Doc. A/810 (1948) [hereinafter UDHR].
45 International Covenant on Economic, Social and Cultural Rights, Dec. 16,1966, pmbl., 993 UNTS 3 [hereinafter ICESCR]; International Covenant on Civil and Political Rights, Dec. 16, 1966, pmbl., 999 UNTS 171 [hereinafter ICCPR].
46 UDHR, supra note 44, Art. 1.
47 See Ann Glendon, Mary, Rights Talk: The Impoverishment of Political Discourse 47–75 (1991)Google Scholar.
48 UDHR, supra note 44, pmbl., Art. 1; ICESCR, supra note 45, pmbl.; ICCPR, supra note 45, pmbl.; cf. Glendon, supra note 43, at 174-77 (discussing the basic ideas in the preamble to the Universal Declaration of Human Rights).
49 See generally UDHR, supra note 44; ICESCR, supra note 45; ICCPR, supra note 45: on recognition of the family as the “natural and fundamental group unit of society” (UDHR Art. 16; ICESCR Art. 10; ICCPR Art. 23); on the right to a nationality (UDHR Art. 15; ICCPR Art. 24); on the right to marry (UDHR Art. 16; ICCPR Art. 23); on freedom to manifestone’s religion or belief “in community with others” (UDHR Art. 18;ICCPRArt. 18); on freedom to exchange information (UDHR Art. 19; ICCPR Art. 19); on freedom to associate and assemble (UDHR Art. 20; ICCPR Art. 21); on the right to participate in the cultural life of the community (ICESCR Art 15; ICCPR Art. 27); on the right to self-determination of all peoples (ICESCR Art. 1; ICCPR Art. 1); on the right to form and join trade unions (UDHR Art. 23; ICESCR Art. 8; ICCPR Art. 22); and on the liberty to establish and direct educational institutions (UDHR Art. 26; ICESCR Art. 13).
51 See Giussani, Luigi, The Religious Sense 56 (1997)Google Scholar (“The religious sense is reason’s capacity to express its own profound nature in the ultimate question: it is the ‘locus’ of consciousness that a human being has regarding existence. Such an inevitable question is in every individual, in the way he looks at everything.”).
52 UDHR, supra note 44, Art. 18; ICCPR, supra note 45, Art. 18.
53 UDHR, supra note 44, Art. 22.
54 Id., Art. 26; ICESCR, supra note 45, Art. 13.
55 UDHR, supra note 44, Art. 23.
56 ICESCR, supra note 45, Art. 11.
57 See Garvey, John H., What are Freedoms For? (1996)Google Scholar. Although approaching the question from a very different theoretical perspective, the work of Amartya Sen and Martha Nussbaum tying human rights to human capabilities supports the same conclusion regarding the positive dimensions of civil and political liberties. See generally The Quality of Life (Nussbaum, Martha & Sen, Amartya eds., 1993)CrossRefGoogle ScholarPubMed.
58 See, e.g.,UDHR, supra note 44, Art. 3 (security of person), Art. 4 (prohibition against slavery), Art. 5 (prohibition against cruel, inhuman, or degrading treatment), Art. 13 (freedom of movement); ICESCR, supra note 45, Art 12 (right to highest attainable standard of physical and mental health); ICCPR, supra note 45, Art 6 (right to life), Art. 7 (prohibition against cruel, inhuman, and degrading treatment), Art. 8 (prohibition against slavery), Art. 9 (security of person).
59 See, e.g., UDHR, supra note 44, Art. 19; ICCPR, supra note 45, Art. 19.
60 See, e.g., UDHR, supra note 44, Art. 20; ICCPR, supra note 45, Art. 22.
61 ICCPR, supra note 45, Art. 2.
62 For example, the Human Rights Committee, in its comment on the right to life in the International Covenant on Civil and Political Rights, has commented:
The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.
Human Rights Committee, General Comment No. 6 (16), in Report of the Human Rights Committee, UN GAOR, 37th Sess., Supp. No. 40, Annex V, at 93, UN Doc. A/37/40 (1982). For availability online, see infra note 125. Although here I have limited the discussion to the International Bill of Rights, it is worth pointing out that the European Court of Human Rights has developed a broad jurisprudence of affirmative obligations regarding civil and political rights. In that Court’s case law, affirmative state obligations have been recognized with respect to human rights as varied as the right to life, the right to respect for family and private life, and the right to a fair trial. For a good overview of the case law, see generally van Dijk, Pieter, “Positive Obligations “Implied in the European Convention on Human Rights: Are the States Still “Masters “ of the Convention ? in The Role of the Nation-State in the 21st Century 17 (Castermans-Holleman, Monique etal. eds., 1998)Google Scholar.
63 ICESCR, supra note 45, Art. 2.
64 For example, with respect to the right to adequate food, the Committee on Economic, Social and Cultural Rights has elaborated on the nature of the state’s obligation as including “the obligations to respect, to protect, and to fulfill.” Committee on Economic, Social and Cultural Rights, General Comment No. 12, para. 15, UN Doc. E/C. 12/1999/5, available at <http://www.unhchr.ch/tbs/doc.nsf>; see also Alston, Philip & Quinn, Gerard, The Nature and Scope of State Parties’ Obligations Under the International Covenant on Economic, Social and Cultural Rights, 9 Hum. Rts.Q. 156 (1987)CrossRefGoogle Scholar.
65 In fact, if one takes Article 28 of the Universal Declaration of Human Rights seriously, the affirmative responsibilities of states with respect to the realization of human rights should not be limited to their own citizens or territorial jurisdiction, but should extend to a duty of solidarity and cooperation with other states for the creation and maintenance of an international order in which human rights are realized. Although those obligations have not been developed very much at all in the literature and practice of human rights, in principle an emphasis on subsidiarity would strengthen them since subsidiarity does not draw any sharp distinctions between state and international society. See Eide, Asbjørn, Article 28, in The Universal Declaration of Human Rights: A Common Standard of Achievement 597 (Alfredsson, Gudmundur & Eide, Asbjorn eds., 1999)Google Scholar; cf. Macdonald, Ronald St. J., Solidarity in the Practice andDiscourse of Public International Law, 8 Pace Int’l L. Rev. 259 (1996)Google Scholar (discussing role of solidarity as an obligation of states in international law); McWhinney, Edward, The Concept of Co-operation, in International Law: Achievements and Prospects 425 (Bedjaoui, Mohammed ed., 1991)Google Scholar (exploring international cooperation as a legal obligation of states).
66 The most specific example of human rights norms supporting defined forms or processes of governance can be found in work advocating an emerging right to democratic rule, which also happens to be one of the few normative contexts in which subsidiarity and human rights have been linked explicitly. See Shelton, supra note 7.
67 Millon-Delsol, supra note 8, at 191,210-16. Most obviously, subsidiarity inspired Article 72 of the Basic Law of the German Federal Republic, which governs the allocation of concurrent powers between the federal government and the Länder. Grundgesetz [Constitution] Art. 72. The principle was thereafter applied much more broadly, however, throughout a variety of German legislation, especially on social issues, as well as within the Länders’ local law. Millon-Delsol, supra, at 211-13. Millon-Delsol attributes subsidiarity’s success in the social and political discourse of postwar Germany also to its ability to serve as a “central pivot” around which liberal, socialist, an d corporatist ideas could turn and unite, as well as its ability to serve as a focal point for the dynamics of federalism. Id. at 191, 215. There is, naturally, an extensive German literature on subsidiarity, although unfortunately very little of it is available in translation. For many of the most frequently cited German works, see the extensive bibliographies in id. at 229-32, and Endo, supra note 10, at 1973-1965.
68 Its first use came from a German member of the European Commission, Ralf Dahrendorf, who in 1971 took aim in a newspaper editorial at what he perceived to be an excessively bureaucratized European Community (especially the European Community’s common agricultural policy) by suggesting that Europe should “move away from the dogma of harmonization towards the principle of subsidiarity.” Endo, supra note 10, at 2019.
69 See, e.g., Single European Act, Feb. 17 & 28, Art. 25,1987 O.J. (L169) 1 (this subsidiarity provision in the environmental area was repealed later, when the requirement fell within the broader scope of the Treaty of European Union’s subsidiarity provision, now found in Article 5 of the consolidated EC Treaty); Draft Treaty Establishing the European Union, Art. 12, 1984 O.J. (C 77) 33; Article 12, L ‘Union européenne: Présentation du rapport de synthèse de M. Tindemans, Bull. CE 12/75, cited in Endo, supra note 10, at 2017.
70 See Endo, supra note 10, at 2007-2004. Delors’s ideas about subsidiarity were explicitly and pervasively personalist, influenced especially by the twentieth-century French intellectual Emmanuel Mounier. Id. at 2003-2001; cf. Mounier, Emmanuel, Personalism (Mairet, Philip trans., 1970)Google Scholar.
71 Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) [hereinafter TEU]. For much fuller accounts of the process by which subsidiarity came to be recognized in the TEU, see Patrizia de Pasquale, Il Principio di Sussidiarietà Nella Comunità Europea (2000); Endo, supra note 10.
72 TEU, supra note 71, Art. 1 (consolidated version, 1997) (emphasis added).
73 Id., Art. 2.
74 Treaty Establishing the European Community, Nov. 10,1997, Art. 5,1997 O.J. (C340) 3 [hereinafter EC Treaty]. In addition to this direct, formal incorporation of the principle of subsidiarity into the Treaties, the TEU indirectly acknowledged the importance of subsidiarity by emphasizing, in the context of each new substantive sphere of Community law, that the member states would continue to have primary responsibility over those areas.
75 .See Endo, supra note 10.
76 Bermann, supra note 2, at 348.
77 Cass, Deborah Z., The Word That Saves Maastricht? The Principle of Subsidiarity and the Division of Powers Within the European Community, 29 Common Mkt. L. Rev. 1107, 1107 (1992)Google Scholar.
78 See Bermann, supra note 2, at 333.
79 E.g., Interinstitutional Declaration on Democracy, Transparency and Subsidiarity, 26 E. C. Bull., No. 10,1993, at 118; Overall Approach to the Application by the Council of the Subsidiarity Principle and Article 3b of the Treaty on European Union, Conclusions of the Presidency, 25 E.C. Bull., NO. 12, 1992, at 12.
80 Protocol on the Application of die Principles of Subsidiarity and Proportionality, Treaty of Amsterdam Amending the Treatyon the European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1,105 [hereinafter Amsterdam Protocol]. The Amsterdam Protocol clarifies in several respects the scope and content of subsidiarity as a Treaty norm, but its most significant step was to shift subsidiarity to a more procedural level. Id., Arts. 4, 9-12. It may be noted that George Bermann argued in favor of this proceduralization of subsidiarity years before the Amsterdam Protocol made it a reality. See generally Bermann, supra note 2.
81 Schilling, Theodor, A New Dimension of Subsidiarity: Subsidiarity as a Rule and a Principle, 1994 Y.B. Eur. L. 203, 255 Google Scholar. But see von Borries, Reimer & Hauschild, Make, Implementing the Subsidiarity Principle, 5 Colum. J. Eur. L. 369, 369 (1999)Google Scholar (arguing that the principle of subsidiarity, “rather than being a socio-philosophical doctrine, is a principle of constitutional law. I t . . . . is simply a rule for the rational exercise of Community competencies. Article  contains no meaning other than this rule.” (footnote omitted)).
82 Schilling, supra note 81, at 255. To accept subsidiarity as a legal principle with broader meaning and application than the rule of Article 5 does not necessarily mean that the way it is used in the European Union is as comprehensive as the idea I described in part I of this article, but the constitutional nuances are not of primary importance to the international legal context of this article. For further discussion of the possible divergences in uses and meanings of subsidiarity in the EU context, see MacCormick, supra note 41; Føllesdal, Andreas, Survey Article: Subsidiarity, 6 J. Pol. Phil. 190 (1998)CrossRefGoogle Scholar; Pizzolato, supra note 18 (speculating whether subsidiarity in the Unionis “denatured” from its intellectual roots).
85 See text at note 34 supra.
87 See Carozza, Paolo G., The Charter and the Member States, in The European Union Charter of Fundamental Rights: Context and Possibilities (Peers, Steve & Ward, Angela eds., forthcoming 2003)Google Scholar.
89 For an excellent account of the process by which the Charter was proposed, drawn up, and approved, see de Búrca, Gráinne, The Drafting of the European Union Charter of Fundamental Rights, 26 Eur. L. Rev. 126 (2001)Google Scholar.
90 On the general tension between the commonality of the Union and the particularity of the several member states that pervades the Charter, see Carozza, supra note 87.
91 Charter, supra note 5, pmbl.
92 Id. Moving beyond the preamble, the Charter’s substantive rights maintain this antinomy, providing, for example, that “[t]he Union shall respect cultural, religious and linguistic diversity,” while also guaranteeing the right of every EU citizen to “move and reside freely within the territory of the Member States.” Id., Arts. 22, 45.
93 Weiler, Joseph H. H., Human Rights, Constitutionalism and Integration: Iconography and Fetishism, 3 Int’l L.F. 227, 232 (2001)Google Scholar.
94 Weiler, supra note 88, at 343.
95 Charter, supra note 5, pmbl.
96 Id., Art. 51.
97 See supra text at note 84.
98 See Alston & Weiler, supra note 6, at 22-27; von Bogdandy, Armin, The European Union as a Human Rights Organization? Human Rights and the Core of the European Union, 37 Common Mkt. L. Rev. 1307 (2000)Google Scholar.
99 One could presumably argue that locating legislative competence over human rights matters exclusively in the member states and not in the Union is itself a manifestation of subsidiarity; this is one possible way of reading the Charter of Fundamental Rights when it proclaims both a respect for subsidiarity and an intent to maintain the existing allocation of competences in the Union. In reality, though, that would not be subsidiarity, which necessarily entails shared authority, so much as pure decentralization.
100 After the adoption of the Maastricht Treaty, the issue was whether subsidiarity could be applied by the ECJ to other EC institutions. See, e.g., Tofh, A. G., Is Subsidiarity Justiciable? 19 Eur. L.R. 268 (1994)Google Scholar. More recently, the question has turned to the application of the principle by the ECJ to itself with regard to its own exercise of interpretive powers. For persuasive arguments in favor of a “judicial subsidiarity” in the Union, see de Búrca, Gráinne, The Principle of Subsidiarity and the Court of Justice as an Institutional Actor, 36 J. Common Mkt. Stud. 217 (1998)CrossRefGoogle Scholar; Swaine, Edward T., Subsidiarity and Self-interest: Federalism at the European Court of Justice, 41 Harv. Int’l L. J. 1 (2000)Google Scholar.
101 See, e.g., Case 155/79, AM&S Europe Ltd. v. Commission, 1982 ECR1575; Case 44/79, Hauer, 1979 ECR 3727. One recent, post-Charter case that exemplifies this practice is the opinion of Advocate General Mischo in Booker Aquaculture Ltd., Cases C–20/00, C-64/00 (Sept. 20,2001), available at <http://www.curia.eu.int/en/index.htm> (Court’s decision pending). Mischo undertakes a brief survey of the scope of the right to private property in the constitutional law of several member states before turning to the Charter to reinforce the conclusion that would be drawn on the basis of national constitutional law, and then to the European Convention on Human Rights. While the interaction of the various sources here is relatively cursory, it still points the way toward continued exchange and cross-fertilization between the national and European legal orders.
With regard to the characteristics of fundamental rights as general principles of law in the EU more generally, including their reliance on national constitutional traditions, see Tridimas, Taki, The General Principles of EC Law 202–43 (1999)Google Scholar; Toth, A. G., Human Rights as General Principles of Law, in the Past and in the Future, in General Principles of European Community Law 73 (Bernitz, Ulf & Nergelius, Joakim eds., 2000)Google Scholar.
102 See, e.g., Tridimas, supra note 101, at 16. Regarding the judicial dialogue between the ECJ and national courts both in this respect and more generally, see The European Court and National Courts—Doctrine and Jurisprudence (Anne-Marie, Slaughter et al. eds., 1998)Google Scholar.
103 I am not suggesting that subsidiarity leads to any hard rule or method of interpretation by the ECJ. The sort of comparative exercise in fundamental rights that subsidiarity encourages could not result in any mechanical formula for the recognition, understanding, or justification of the rights in question but, rather, serves (at its best) as a source of perspective and critical distance in fashioning a balanced and open jurisprudence of rights. See Carozza, Paolo G., Uses and Misuses of Comparative Law in International Human Rights: Some Reflections on the Jurisprudence of the European Court of Justice, 73 Notre Dame L. Rev. 1217 (1998)Google Scholar.
104 For a general overview of the structure of, and justification for, the several kinds of review, see Weiler, supra note 88.
103 See, e.g., Hauer, 1979 ECR 3727, para. 14.
106 See, e.g., Case 5/88, Wachauf, 1989 ECR 2609, paras. 18-19.
107 See, e.g.. Case C–368/95, Familiapress, 1997 ECR I–3689; Case C–299/95, Kremzow, 1997 ECR I–2629, para. 15; Judgment of 18June 1991, ERT, 1991 ECR I–2925.
108 Predictably, the Court’s review of action by the member states is generally what provokes concern about the potential expansion of the scope of EU fundamental rights law, and about a concomitant reduction in those states’ autonomy and local discretion. See Besselink, Leonard, The Member States, the National Constitutions and the Scope of the Charter, 8 Maastricht J. Eur. Comp. L. 68 (2001)CrossRefGoogle Scholar; von Bogdandy, supra note 98.
109 Compare Amsterdam Protocol, supra note 80, Art. 7, which provides:
Community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the Treaty. While respecting Community law, care should be taken to respect well established national arrangements and the organisation and working of Member States’ legal systems.
110 Although the Charter was adopted as a mere declaration of principles rather than as a formally binding legal instrument (e.g., a separate treaty or an amendment to the existing treaties), its status has officially been made part of the current process of considering the future constitutional structure of the Union. See Laeken Summit Declaration on the Future of the Union, para. 23(5), 2001 O.J. (C 80/85) 23.
111 See, for example, the debate between Schilling, Theodor, The Autonomy of the Community Legal Order—An Analysis of Possible Foundations, 37 Harv. Int’l L. J. 389 (1996)Google Scholar, and Joseph H. H. Weiler, The Autonomy of the Community Legal Order: Through the Looking Glass, in Weiler, supra note 88, at 286.
112 See Kossel, supra note 21, at 44.
113 Id. at 45; cf. Pizzolato, supra note 18, at 507 (arguing that inadequacy of the nation-state justifies supranational authority). In this vein, Finnis, supra note 27, at 149-50, also states:
If it now appears that the good of individuals can only be fully secured and realized in the context of international community, we must conclude that the claim of the national state to be a complete community is unwarranted and the postulate of the national legal order, that it is supreme and comprehensive and an exclusive source of legal obligation, is increasingly what lawyers would call a “legal fiction”.
114 Cf. George, Robert P., Natural Law and International Order, in International Society 54, 64–66 (Mapel, David R. & Nardin, Terry eds., 1998)Google Scholar (arguing that the natural law tradition envisages a world government of limited scope).
115 Cf. id. at 65-66 (noting that “the application of the principle of subsidiarity is more a matter of art than of science” and that it cannot be “applied mechanically or with anything approaching mathematical precision”).
116 See, e.g., Henkin, Louis, International Law: Politics, Values and Functions, 216 Recueil des Cours 208–26 (1989 IV)Google Scholar.
117 Cf. Endo, supra note 86 (identifying sovereignty as the “principal opponent concept” of subsidiarity).
118 Alston, Philip, Introduction to Human Rights Law at xi, xii (Alston, Philip ed., International Library of Essays in Law and Legal Theory, 1996)Google Scholar. Alston is responding to the much deeper critique that Martti Koskenniemi and other postmodern theorists have leveled against human rights as being not only “immature” but basically incoherent, because they are irretrievably indeterminate. I am well aware of that critique of rights, and agree that it is a powerful challenge to facile assertions of a false (and potentially colonialist) “universality” of values. Certainly, if it is accepted in its entirety, then my project here is basically futile. Ultimately, however, it should be clear that the premises of my argument do accept as given that it is possible to engage in a meaningful inquiry into a communicable “common good” and a knowable “human dignity.” I do not, therefore, take on directly the postmodern rights critique. Recognizing that these concepts and their political uses are subject to our historically contingent and often frail human judgments does not, in my view, require abandonment of the rights project so much as a constant willingness to engage in critical self-reflection about our uses of the language of rights. If I am right, the relationship of subsidiarity to human rights that I take up here is one way to keep a measure of distance between the virtues of rights talk and its hegemonic tendencies, a way to use the language of rights without its being the Trojan horse of a narrowly circumscribed liberal Western ideology.
119 See generally Glendon, supra note 43.
120 ICESCR, supra note 45.
121 ICCPR, supra note 45.
122 International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature Mar. 7, 1966, 660 UNTS 195.
123 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature Mar. 1, 1980, 1249 UNTS 13.
124 Human Rights Committee, General Comment No. 3, UN Doc. CCPR/C/21/Rev.1/Add.1 (1981). For availability online, see note 125 infra.
125 For a survey of the jurisprudence of the Human Rights Committee, see Joseph, Sarah, Schultz, Jenny, & Castan, Melissa, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (2000)Google Scholar; Mcgoldrick, Dominic, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (1994)Google Scholar. Easy access to the text of the decisions and views of the Human Rights Committee can be found at <http://www.unhchr.ch/tbs/doc.nsf>, <http://www1.umn.edu/humanrts/undocs/undocs-index.html>.
126 See, e.g., The United Nations and Human Rights (Alston, Philip ed., 1992)Google Scholar (providing general overview of UN human rights treaty regimes).
127 For the jurisprudence of the European Court of Human Rights, the cases are digested by article number in Kempees, Peter, A Systematic Guide to the Case-Law of the European Court of Human Rights (1996)Google Scholar. The full texts of the cases are found in European Court of Human Rights, Reports of Judgments and Decisions, Series A, and at <http://www.echr.coe.int/Eng/Judgments.htm>. For the jurisprudence of the Inter-American Court of Human Rights, see the Court’s Web site at <http://www.corteidh.or.cr/index-ingles.html>.
128 Convention on the Rights of the Child, Nov. 20, 1989, 1577 UNTS 3.
129 Id., Arts. 9, 18,37.
130 See, e.g., The Best Interests of the Child: Reconciling Culture and Human Rights (Philip Alston ed., 1994).
191 See, for example, the exchange between the Human Rights Committee and the United States and the United Kingdom regarding the compatibility of reservations with the object and purpose of the ICCPR. Human Rights Committee, General Comment No. 24, UN Doc. CCPR/C/21/Rev.1/Add.6 (1994), reprinted in 34 ILM 839, 843 (1995); Observations on General Comment No. 24(52), United States of America, in Report of the Human Rights Committee, UN GAOR, 50th Sess., Supp. No. 40, Vol. I, Annex V, at 422, UN Doc. A/50/40 (1995), reprinted in 16 Hum. Rts. L. J. 52,53 (1995); Observations on General Comment No. 24(52), United Kingdom of Great Britain and Northern Ireland, id. at 424, reprinted in 16 Hum. Rts. L. J. at 52.
132 See, e.g., Pellet, Alain, Second Report on Reservations to Treaties, UN Doc. A/CN.4/477 & Add.1 (1996)Google Scholar.
133 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 1951 ICJ Rep. 15, 29 (May 28).
134 Id. at 24.
135 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, Arts. 20-23, 1155 UNTS 331.
136 Schabas, William A., Reservations to the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child, 3 Wm. & Mary J. Women & L. 79 (1997)Google Scholar.
137 See sources cited supra note 131.
138 ICCPR, supra note 45, Art. 22(1).
139 Id., Art. 22(2).
140 Classic cases in this regard include, for example, Handyside v. United Kingdom, 24 Eur. Ct. H.R. (ser. A) (1976) (recognizing limitations on obscenity based on the requirements of public morality), and Engel and Others, 22 Eur. Ct. H.R. (ser. A) (1976) (allowing limitations on discriminatory treatment in the punishment of military servicemen based on the need for military discipline). More recently, the ECHR has found limitations permissible in cases involving, for instance, restrictions on the right to home and family life based on the need for environmental planning. Chapman v. United Kingdom, 33 Eur. H.R. Rep. 399 (2001). See generally Brems, Eva, Human Rights: Universality and Diversity 365–90 (2001)Google Scholar. For the Convention, see infra note 151.
141 A recent and complete discussion of the use of the margin of appreciation doctrine, analyzing much of the ECHR case law in the context of a broad discussion of “legal techniques for the accommodation of diversity,” can be found in Brems, supra note 140, at 357-422, while a good, concise monograph surveying its use can be found in Greer, Steven, The Margin of Appreciation: Interpretation and Discretion Under the European Convention on Human Rights (2000)Google Scholar. Earlier studies of note in the extensive body of literature regarding the margin of appreciation include Kastanas, Elias, Unité et diversité: Notions autonomes et marge d’appréciation des Etats dans la jurisprudence de la Cour Européenne des droits de l’homme (1996)Google Scholar; Charles Yourow, Howard, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996)Google Scholar; Macdonald, Ronald St. J., The Margin of Appreciation, in The European System for the Protection of Human Rights 63 (Macdonald, Ronald St. J. et al. eds., 1993)Google Scholar. See also the collection of short articles by various authors in 19 Hum. Rts. L.J. 1-36 (1998).
142 See generally Kastanas, supra note 141; Mahoney, Paul, Marvellous Richness of Diversity or Invidious Cultural Relativism? 19 Hum. Rts. L.J. 1 (1998)Google Scholar.
143 Smith & Grady v. United Kingdom, 1999–VI Eur. Ct. H.R. 45.
144 Petrovic v. Austria, 33 Eur. H.R. Rep. 307 (2001).
145 Pretty v. United Kingdom, 35 Eur. H.R. Rep. 1 (2002).
146 See, e.g., United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/24 (1993), reprinted in 32 ILM 1661 (1993).
147 The most exhaustive recent overview of the debate over universality and cultural relativism, surveying in one place all of the various substantive, political, and geographic manifestations of the issue, can be found in Brems, supra note 140.
148 Obviously, the European Court of Human Rights and the Inter-American Court of Human Rights are exceptions.
149 ICCPR, supra note 45, Art. 14(1).
150 ICESCR, supra note 45, Art. 2.
151 See, e.g., Optional Protocol to the International Covenant on Civil and Political Rights, Dec. 19,1966, Art. 2, 999 UNTS 302; American Convention on Human Rights, Nov. 22, 1969, Art. 46(a), 1144 UNTS 123; European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature Nov. 4,1950, Art. 35(1), 213 UNTS 222.
153 In fairness to Philip Alston, from whom I borrow the reference to “immaturity” here (see supra note 118), it should be acknowledged that he was one of the first human rights scholars seriously to question the need for and wisdom of an unchecked expansion of international human rights norms. Alston, Philip, Conjuring up New Human Rights: A Proposal for Quality Control, 78 AJIL 607 (1984)CrossRefGoogle Scholar.
154 For a strong example of this characterization, see Donnelly, Jack, State Sovereignty and International Intervention: The Case of Human Rights, in Beyond Westphalia? State Sovereignty and International Intervention 115 (Lyons, Gene M. & Mastanduno, Michael eds., 1995)Google Scholar.
155 International Human Rights in Context 573–74 (Steiner, Henry & Alston, Philip eds., 2d ed. 2000)Google Scholar; see also Araujo, Robert, Sovereignty, Human Rights and Self-Determination: The Meaning of International Law, 24 Fordham Int’l L. J. 1477 (2001)Google Scholar (generally summarizing position of human rights in international law vis-à-vis sovereignty).
156 Bradley, Curtis A. & Goldsmith, Jack L., Customary International Law as Federal Common Law: A Critique of the Modem Position, 110 HARV. L. REV. 816 (1997)CrossRefGoogle Scholar (challenging the position that customary international law is part of federal common law); Hongju Koh, Harold, Is International Law Really State Law? 111 Harv. L. Rev. 1824 (1998)Google Scholar (critiquing Bradley & Goldsmith’s argument); Neuman, Gerald L., Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371 (1997)Google Scholar. Much of the argument revolves around the history of federal common law and the allegedly “new” character of recent customary international law, and neither the merits nor the details of those arguments are relevant to the discussion here. It is more interesting for our purposes to observe how much of that debate, on both sides of the issue, is really about the sovereign independence of the United States vis-à-vis the international community and especially international human rights law—particularly a notion of sovereignty couched in arguments about democracy. Peter Spiro has rightly identified this core to the position of Bradley, Goldsmith, and others: “At the center of their thinking stands the edifice of sovereignty. Sovereignty, in this conception, calls for America to resist the incorporation of international norms and drapes the power to do so in the mantle of constitutional legitimacy.” For that reason, he dubs the group collectively as “the New Sovereigntists.” Spiro, Peter J., The New Sovereigntists American Exceptionalism and Its False Prophets, Foreign Aff., Nov./Dec. 2000, at 1.Google Scholar In response, Bradley and Goldsmith just as plausibly label Spiro’s position one of “unalloyed internationalism” that does not take sufficiently serious account of the importance of national consent to international obligations. Curtis A. Bradley & Jack L. Goldsmith, Letter to the Editor, Foreign Aff., Mar./Apr. 2001, at 188,189. It is at least suggestive that Bradley and Goldsmith’s quarrel with Spiro’s “New Sovereigntist” tag is not with the “sovereigntist” part of the phrase but with the alleged “newness” of it.
157 See, e.g., Wang, Juangyu, China and the Universal Human Rights Standards, 29 Syracuse J. Int’l L. & Com. 135, 139, 146–49 (2001)Google Scholar (emphasizing China’s historical assertion of state sovereignty against human rights).
158 See generally The United States and the International Criminal Court: National Security and International Law (Sewall, Sarah B. & Kaysen, Carl eds., 2000)Google Scholar.
160 E.g., Araujo, supra note 155, at 1485 (noting that “[a] sovereign nation is a community of people who exercise shared values concerning human dignities that shape and direct the particulars of their communitarian self-determination”).
161 We can only wonder what will become of sovereignty in this sense as a result of the current era of globalization. See, e.g., McGinnis, John O., The Decline of the Western Nation States and the Rise of the Regime of International Federalism, 18 Cardozo L. Rev. 903, 918 (1996)Google Scholar; van Staden, Alfred & Vollard, Hans, The Erosion of State Sovereignty: Towards a Post-Territorial World? in State, Sovereignty, and International Governance 165 (Kreijen, Gerard ed., 2002)Google Scholar.
162 Koskenniemi, Martti, From Apologyto Utopia: The Structure of International Legal Argument, ch. 4 (1989)Google Scholar.
164 Id. at 211 (footnote omitted).
165 Id. at 234-35, 262-63.
166 Koskenniemi, Martti, The Future of Statehood, 32 Harv. Int’l L.J. 397, 397 (1991)Google Scholar.
167 Id. at 407; Koskenniemi, supra note 162, at 233.
169 Koskenniemi, supra note 166, at 407, 409.
170 E.g., Michael Reisman, W., Sovereignty and Human Rights in Contemporary International Law, 84 AJIL 866 (1990)Google Scholar.
171 Falk, Richard, Sovereignty and Human Dignity: The Search for Reconciliation, in African Reckoning: A Quest for Good Governance 12 (Deng, Francis M. & Lyons, Terrence eds., 1998)Google Scholar.
172 Anne-Marie, Slaughter, A Liberal Theory of International Law, 94 ASIL Proc. 240, 246 (2000)Google Scholar. For a more specific application of liberal internationalism to the question of sovereignty, intervention, and human rights, see Fox, Gregory H., New Approaches to International Human Rights: The Sovereign State Revisited, in State Sovereignty: Change and Persistence in International Relations 105 (Hashmi, Sohail H. ed., 1997)Google Scholar.
173 See, e.g., Fox, supra note 172.
174 See Slaughter, supra note 172, at 246.
175 This is obviously not the place for a comprehensive treatment of the differences between liberal theory and subsidiarity. Here I would simply note that such an analysis would have to focus at least in part on the differences between the comprehensively personalist orientation of subsidiarity and the more limited concept of liberty implicit in liberal theory, as well as the balance between intervention and noninterference that might flow from their distinctive understandings of freedom.
176 Endo, supra note 86, at 34.
177 E.g., Simonovic, Ivan, State Sovereignty and Globalization: Are Some States More Equal? 28 Ga. J. Int’l & Comp. L. 381 (2000)Google Scholar. Simonovic attempts to address the dilemmas of globalization by applying a “sovereignty vs. interventionism” dichotomy that reduces every state’s choice merely to “whether to maintain the old version of sovereignty, trying to protect all their traditional rights, or to accept international authority to interfere into some areas that were previously in their exclusive competence.” Id. at 398. Similarly, another scholar is reduced to summarizing the relationship between sovereignty and international concern in the inter-American human rights system as “you win some, you lose some.” Frits Kalshoven, State Sovereignty versus International Concern in Some Recent Cases of the Inter- American Court of Human Rights, in State, Sovereignty, and International Governance, supra note 161, at 259,259.
178 Schreuer, Christoph, The Waning of the Sovereign State: Towards a New Paradigm for International Law? 4 Eur. J. Int’l L. 447, 453 (1993)Google Scholar.
180 Cf William Mugwanya, George, Realizing Universal Human Rights Norms Through RegionalHuman Rights Mechanisms: Reinvigorating the African System, 10 Ind. Int’l & Comp. L. Rev. 35 (1999)Google Scholar; Shelton, Dinah, The Promise of Regional Human Rights Systems, in The Future of International Human Rights 351 (Weston, Burns H. & Marks, Stephen P. eds., 1999)Google Scholar.
181 Valticos, Nicolas, Pluralité des orders juridiques internationaux et unité du droit international, in Theory of International Law at the Threshold of the 21st Century 301, 322 (Makarczyk, Jerzy ed., 1996)Google Scholar (my trans.).
182 Cassese, Antonio, International Law in a Divided World 148 (1986)Google Scholar; Alston, supra note 118, at xii-xiv.
183 Alston, supra note 118, at xii-xiv.
184 Koskenniemi, supra note 166, at 397-400.
185 Subsidiarity in this way proposes a reconceptualization of the international society not unlike that sought by Philip Allott in his monumental Eunomia: New Order for a New World (1990). Allott would have us pursue the humanization of the state system by reconceiving international law as international society. Id. at 254, para. 14.1. In this transformation, he sees human rights as affirming both the unity of human nature and the plurality of human values by providing “a model or pattern or formula of the reconciling of the good of each member of society and the good of society within a good which transcends society.” Id. at 287, para. 15.64; see also id. at 286, para. 15.63. At the same time, the humanization of international society will result, for Allott, in a change both in vocabulary and in self-conception that, among other things, would lead to the disappearance of the words “sovereign” and “sovereignty” from the vocabulary of international law and society. Id. at 310-11, para. 16.34. Although Allott does not offer the word “subsidiarity” as a replacement, it is a concept that would ideally fit his aspirations. He diagrams his understanding of “the good order of a self-ordering society” with a circle that connects “individual human being,” “subordinate societies,” “international society,” and “Universe of all-that-is” around the ideals of “justice/humanity/love.” Id. at 404, para. 18.77. It could well be described as an illustration of the ideal of subsidiarity, too.
186 See, e.g., Lee Donoho, Douglas, Autonomy, Self-Governance and the Margin of Appreciation: Developing a Jurisprudence of Diversity Within Universal Human Rights, 15 Emory Int’l L. Rev. 391 (2001)Google Scholar.
187 See, e.g., Mahoney, supra note 7, at 369; Herbert Petzold, The Convention and the Principle of Subsidiarity, in The European System for the Protection of Human Rights, supra note 141, at 41.
188 Brems, supra note 140, at 422 (concluding after an exhaustive discussion of the margin of appreciation that “ [m]argin of appreciation techniques are not so much a solution to the universality-diversity problem as a tool for reaching solutions in specific cases,” and noting problems that would accordingly arise in using the doctrine on a more universal level).
189 See, e.g., Greer, supra note 141, at 32 (noting margin of appreciation’s lack of even “minimum theoretical specificity and coherence” and its “pseudo-technical” character); Lord Lester of Heme Hill, Universality Versus Subsidiarity: A Reply, 1998 Eur. Hum. Rts. L.R. 73, 75; de Schutter, Olivier, L’Interpretation de la Convention européenne des Droits de I’Homme: un essai en démolition, 70 Revue de Droit International, de Sciences Diplomatiques, Politiques, et Sociales 83 (1992)Google Scholar.
190 See Brems, supra note 140, at 411-21; Kastanas, supra note 141, at 186-224, 306-22; Yourow, supra note 141, at 193-96.
191 Carozza, supra note 103.
192 Merrills, J. G., The Development of International Law by the European Court of Human Rights 157 (1988)Google Scholar; see also Brems, supra note 140, at 360 (“The margin of appreciation doctrine demarcates the room left for the exercise of national sovereignty.”); Hutchinson, Michael R., The Margin of Appreciation Doctrine in the European Court of Human Rights, 48 Int’l & Comp. L. Q. 638, 647 (1999)Google Scholar (observing that the “problem that prompted the idea was the relationship between a sovereign State party and the supervising organs of the Convention”).
193 Besselink, supra note 7.
194 Id. at 639; see also id. at 668-70.
195 Id. at 668.
196 Id. at 678; see also id. at 671.
197 Cf. Perry, supra note 50, at 65 (defining “universalism” in context of the relativist challenge to human rights as affirming that “some things good for some human beings are good for every human being and some things bad for some human beings are bad for every human being”).
199 See Finnis, supra note 27, at 218-21.
200 Erhard Denninger goes so far as to argue that the “universal” character of human rights and their dependence on a specific political-legal order are “inseparably connected” because although the point of reference of “human rights” is every human being in general, as concrete subjects of rights those human beings can be understood only within particular legal orders and value systems. Erhard Denninger, Diritti dell’uomo e legge fondamentale 58 (Carlo Amirante ed. & trans., 1998).
201 See, e.g., George, supra note 114, at 62-64. George explains the meaning of determinatio further:
Unfortunately, no single word in English adequately captures the meaning of determinatio. “Determination” has some of the flavor of it; but so do “implementation,” “specification,” and “concretization.” The key thing to understand is that in making determinationes, the legislator enjoys a creative freedom that Aquinas analogizes to the freedom exercised by an architect. An architect must design a building that is sound and sensible for the purposes to which it will be put. Ordinarily, however, he cannot identify a form of the building that would be uniquely suitable. A range of possible designs will likely satisfy the relevant criteria. Obviously, a design with “doors” no more than three feet high is unlikely to meet an important requirement for a functional building. No principle of architecture, however, sets the proper height of a door at six feet two inches as opposed to six feet eight inches. In designing a particular building, the architect will strive to make the height of the doors make sense in light of a variety of factors, some of which are themselves the fruit of determinationes (the height of the ceilings, for example); but even here he will typically face a variety of acceptable but incompatible design options.
Id. at 62-63; see also Finnis, supra note 27, at 281-90.
202 Cf. Finnis, supra note 27, at 214-18. Although taken here most directly from Finnis, this insight is by no means exclusive to natural law reasoning. For example, Joseph Raz arrives at a similar conclusion from a different philosophical perspective: “Rights and their boundaries demarcate the degree to which individual and common interests with (the protection of) which the rights under discussion are concerned are to be protected when they clash with other individual and common interests.” Raz, Joseph, Rights and Politics, in Law, Values and Social Practices 75, 86 (Tasioulas, John ed., 1997)Google Scholar.
203 Discussion of most of the following criteria, and citations to relevant ECHR cases, can be found in Brems, supra note 140, at 357-422.
204 See part V infra.
205 Cf. Weiler, supra note 88, at 103-07 (discussing this idea specifically in the context of the European Union’s fundamental rights jurisprudence).
206 Delmas-Marty, Mireille, The Richness of Underlying Legal Reasoning, in The European Convention for the Protection of Human Rights: International Protection Versus National Restrictions 319, 330, 332–33 (Delmas-Marty, Mireille ed., 1992)Google Scholar.
208 See Perry, supra note 50, at 64-71.
209 See Besselink, supra note 7, at 668.
210 See Weiler, supra note 88.
211 See, e.g., Heifer, Laurence R. & Anne-Marie, Slaughter, Toward a Theory of Effective Supranational Adjudication, 107 Yale L.J. 273 (1997)Google Scholar.
212 See Kay, Richard S., The European Human Rights System as a System of Law, 6 Colum. J. Eur. L. 55 (2000)Google Scholar.
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214 Id. at 325-36.
215 Carozza, supra note 103.
216 Heifer & Slaughter, supra note 211, at 367-73, 389-91.
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222 See id.
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228 There is good cause to regard Legrand’s argument, in particular, as too broadly and categorically framed, perhaps merely for rhetorical emphasis but perhaps because of a view of the foundations of legal culture as more static and hermetic than is necessary.
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