This paper explores Subsidiarity – somewhat unconventionally - as a constitutional principle in international human rights law (Carozza 2003). The principle of subsidiarity regulates the placement and/or use of authority within a political or legal order, and holds that the burden of argument lies with attempts to centralize authority (Follesdal 1998). Such a Principle of Subsidiarity is explicit in EU law at least since the Maastricht Treaty, as well as in many federal states. Some have appealed to subsidiarity in order to defend the legitimacy of several striking features of international law, such as the centrality of state consent, considerable leeway when determining states’ compliance, and weak sanctions in the remaining cases of non-compliance. Subsidiarity is seen as a way to protect national sovereignty whilst securing sufficient problem-solving. With regard to the human rights supervisory organs, a central philosophical question is whether they are at all compatible with subsidiarity: Why, if at all, should such treaty organs exist with the powers they have over domestic legislators, executives and judiciaries? What are the problems, for which such treaties appear to be plausible steps toward a solution? A central objective of the paper is to use answers to this question to explore the best account of subsidiarity for international human rights review. Different interpretations of subsidiarity have strikingly different institutional implications regarding the objectives of the polity, the domain and role of subunits, and the allocation of authority to apply the principle of subsidiarity itself – five different interpretations are explored, drawn from as different sources as Althusius, the US Federalists, Pope Leo X, and the European Commission (Follesdal, 1998). The choice among them has drastic implications for the appropriate authority of international institutions vs domestic authorities – and thus for what sorts of institutional or constitutional reconfiguration should be pursued. One upshot is that the Principle of Subsidiarity cannot provide legitimacy on its own: Rather, it stands in need of substantial interpretation, which must be guided by normative considerations. While it may prove a helpful ‘constitutional principle’ for international human rights law and other public international law, many crucial aspects require much further attention, including the standing of states. This paper is part of the project MultiRights, an ERC Advanced Grant – www.multirights.net
