Resolving the Question of Inter-Scalar Legitimacy into Law? A Hard Look at Proportionality Balancing in Global Governance
Leiden Journal of International Law, Vol. 31, pp. 793-815, 2018
26 Pages Posted: 3 Dec 2018
Date Written: 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.
Keywords: proportionality balancing, inter-scale, regime-induced conflict, global governance, jurisgenerative narratives
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