Global Experimentalist Governance

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of its possible benefits.

Judicial Review, Irrationality, and the Legitimacy of Merits-Review

The definition of the irrationality ground of judicial review recognises the constitutional principle of the separation of powers, in allowing for judicial control of the executive only very rarely. The author in a previous article in this study found that the courts, on occasions, had intervened in circumstances where administrative decisions arguably were not irrational. To this end, the purpose of this article is to assess the constitutionality of these seemingly low standards of irrationality. The author does so by reference either to the manner of review employed—the use of the proportionality principle, for example—or the context of the administrative decision under scrutiny, such as the infringement of the applicant’s fundamental rights. The author finds that the cases from the previous article where low standards of irrationality were arguably adopted were, in fact, legitimate according to these chosen methods of evaluation. However, this is an interim conclusion because, for reasons of word length, the author is unable to complete a full assessment here. It is therefore proposed that a subsequent article will continue to examine the constitutionality of these cases. Furthermore, the author will also try and establish a zone of executive decision-making, for reasons of democracy, where the courts are excluded from irrationality review. If the author is unsuccessful in this regard, the final conclusion of this study will inevitably be that low standards of judicial intervention exist without limit—a clear assault on the constitutional principle stated above

"The Language of Rights and European Integration"

This paper examines the language of rights as it appears within Community law, and looks at the varying contexts in which it is used, since different observations may be made about these different contexts. I will focus not only on the "fundamental rights" declared and constituted by the Court of Justice as part of the general principles of Community law, but on the language of rights more widely as used throughout the Community legal system, by the institutions in the legislative process, and in the application of Community law to the Member States. This will include not just those rights which have been declared by the Court to have fundamental or "constitutional" status, but also those rights which are created, conferred or declared by Community legislative and other measures. Indeed, the legislative rights which are created at Community level generally acquire a form of constitutional status at the national level where they take priority over national law. This also entails consideration of those areas of Community law in which the language of rights has, perhaps surprisingly, not figured very largely or at all. What is particularly of interest is why the language of rights has come to be used so widely within these areas of Community law, and why it continues to be expanded and developed by the judicial and political institutions. Two partial explanations will be suggested, which focus on how that language is perceived as both a legitimating and an integrating force. Finally, I wish to consider what impact that language may have in reality, and whether a more critical or even sceptical approach is called for

Europe's raison d’être

Distinguished Lecture delivered on the occasion of the XXIII European Union Law course of the Academy of European Law, on 2 July 2012.What is the raison d’être of the European Union? Does it still make sense to ask this question today, at a time of social and economic crisis in Europe? Launched in 1952 as a kind of pilot project of limited economic integration with a view to securing greater peace and prosperity for its Member States, the EU has evolved into something much larger, more complex and more ambitious. This paper argues, contrary to the recent suggestion of an influential commentator, that the EU needs to abandon its ‘messianic’ origins and turn to ordinary process democracy, and that the EU’s mission or raison d’être still matters to its legitimacy today. I argue that while the European Union at its origin was primarily inwardly focused on repairing and strengthening a damaged continent so as to deliver internal peace and prosperity, it has over the past decade become equally concerned with its external dimension. The importance of having a relatively unified European economic and political system to counterbalance the influence of existing and rising powers has become a significant part of the EU’s raison d’être today

Human rights experimentalism

This paper is a revised published version of a Max Weber Lecture on "Reframing International Human Rights Regimes" held at the European University Institute on 22 April 2015.This paper argues that the way in which international human rights treaty systems function can best be understood through the lens of experimentalist governance theory. Drawing on evidence from the operation of three UN human rights treaties, namely the Convention on the Elimination of Discrimination against Women, the Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities, the paper argues, contrary to many conventional depictions of international human rights regimes as both ineffective and top-down, that they function at their best as dynamic, participatory and iterative two-way systems. Viewing them as experimentalist governance regimes brings to light a set of features and interactions that are routinely overlooked or marginalized in many mainstream accounts of these systems, and suggests possible avenues for reform of other human rights treaty regimes with a view to making them more effective in practice

The Constitutional Implications of the Tobacco Advertising Judgment

Digitised version produced by the EUI Library and made available online in 2020