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Law & Ethics of Human Rights

Editor-in-Chief: Stopler, Gila

Editorial Board: Benvenisti, Eyal / Cohen-Eliya, Moshe / Macedo, Stephen / Rosenblum, Nancy


CiteScore 2018: 0.19

SCImago Journal Rank (SJR) 2018: 0.118
Source Normalized Impact per Paper (SNIP) 2018: 0.225

Online
ISSN
1938-2545
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Volume 12, Issue 2

Issues

Global Constitutionalism and Its Legitimacy Problems: Human Rights, Proportionality, and International Investment Law

David Schneiderman
  • Corresponding author
  • Faculty of Law and Department of Political Science (by courtesy), University of Toronto, Toronto, ON M5S 3H7, Canada
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Published Online: 2018-11-29 | DOI: https://doi.org/10.1515/lehr-2018-0014

Abstract

How is legitimacy to be secured for constitution-like legal orders operating beyond the state? Some scholars recommend connecting aspects of global law to human rights adjudication and enforcement by adopting their preferred method for resolving conflicts, namely, proportionality analysis. Adopting a frame of analysis widely embraced by apex courts might generate the requisite regime legitimacy, it is argued. This turns out to be a strategy that is difficult to pursue in the realm of international investment law, a global legal order made up of over 3,300 investment and regional treaties, enforced by private systems of dispute resolution, that incorporates standards of treatment familiar to national constitutional law. By undertaking an analysis of statements made by relevant actors in the field, principally investment lawyers and arbitrators, we learn that there is not that much interest in taking up proportionality analysis, despite the legitimacy problems that continue to dog the system. Whatever the purported advantages of turning to proportionality, it turns out that investment lawyers and arbitrators are not so interested in embracing logics other than one preoccupied with owing solicitude to foreign investors. This reluctance renders investment law a less legitimate, and therefore less sustainable, form of constitution-like global law.

Keywords: global constitutionalism; human rights; proportionality; and international investment law

About the article

Published Online: 2018-11-29

Published in Print: 2018-11-27


Citation Information: The Law & Ethics of Human Rights, Volume 12, Issue 2, Pages 251–280, ISSN (Online) 1938-2545, ISSN (Print) 2194-6531, DOI: https://doi.org/10.1515/lehr-2018-0014.

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