TH E RU LE O F L AW I N G LO BA L GOVERNANC E Edited by Monika Heupel Theresa Reinold and The Rule of Law in Global Governance ‘The Rule of Law in Global Governance offers an excellent set of essays by a marvelous group of scholars. The volume at the same time conveys the state of the art and pushes the fi eld further with a number of innovative essays. A must for those active in this fi eld.’ – Michael Zürn, WZB Berlin Social Science Center, Germany Monika Heupel • T heresa Reinold Editors The Rule of Law in Global Governance Editors Monika Heupel Theresa Reinold University of Bamberg Leiden University Germany The Netherlands ISBN 978-1-349-95052-2 ISBN 978-1-349-95053-9 (eBook) DOI 10.1057/978-1-349-95053-9 Library of Congress Control Number: 2016947059 © The Editor(s) (if applicable) and The Author(s) 2 016 The author(s) has/have asserted their right(s) to be identifi ed as the author(s) of this work in accordance with the Copyright, Designs and Patents Act 1988. This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Cover image © Chris Harris / Alamy Stock Photo Printed on acid-free paper This Palgrave Macmillan imprint is published by Springer Nature The registered company is Macmillan Publishers Ltd. London A CKNOWLEDGEMENTS This volume emanated from a workshop titled ‘The Rule of Law in Global Governance’ which we organized together with the Amsterdam Center for International Law at the WZB Berlin Social Science Center in June 2013. We would like to thank all participants of and contributors to the work- shop—Helmut Philipp Aust, Magdalena Bexell, Thomas J. Biersteker, Rachel A. Cichowski, Erika de Wet, Benjamin Faude, Paul F. Diehl, Gisela Hirschmann, Charlotte Ku, Machiko Kanetake, Anna Leander, André Nollkaemper, Ioannis Papadopoulos, Mateja Steinbrück Platise, Guglielmo Verdirame, Neil Walker, and especially Michael Zürn—for help- ing us sharpen the volume’s focus and for contributing fascinating chap- ters on the different aspects of the rule of law in multilevel governance. We thank our authors for their sustained commitment to this project and for their willingness to undergo several rounds of revisions. Especially their readiness to look over the fence of their respective disciplines has proven indispensable for making the volume a coherent whole rather than a collection of disparate chapters. Furthermore, we would also like to express our appreciation to Rebecca Majewski who helped us organize the workshop at the WZB and to Sophie Czekalla who provided research and editing support. At Palgrave Macmillan, we would like to thank Jemima Warren for backing this project throughout the past years. Finally, we are most grateful to the Hague Institute for the Internationalisation of Law who provided funding for the workshop and was thus crucial in getting the project started in the fi rst place. Bamberg and Leiden, May 2016 Monika Heupel and Theresa Reinold v C ONTENTS Introduction: The Rule of Law in an Era of Multi-level Governance and Global Legal Pluralism 1 Theresa Reinold and Monika Heupel Part I S econdary Rules 2 7 The Primary Effects of Secondary Rules: Institutions and Multi-level Governance 29 Charlotte Ku and Paul F. Diehl The Rules of Interpretation as Secondary Rules: The Perspective of Domestic Courts 5 9 Helmut Philipp Aust The United Nations Security Council and the Politics of Secondary Rule-Making 95 Theresa Reinold vii viii CONTENTS Part II A ccountability 121 Accountability Dynamics and the Emergence of an International Rule of Law for Detentions in Multilateral Peace Operations 1 23 Gisela Hirschmann Human Rights Protection in International Organizations in the Era of Multi-level Governance and Legal Pluralism 1 49 Monika Heupel Multi-level Governance and the Rule of International Human Rights Law: The Case of the V oluntary Principles on Security and Human Rights 1 81 Magdalena Bexell Whitelisting and the Rule of Law: Legal Technologies and Governance in Contemporary Commercial Security 2 05 Anna Leander Index 237 N C OTES ON ONTRIBUTORS Helmut Philipp Aust Dr. iur. is a senior research fellow and privatdozent at Humboldt University Berlin, Faculty of Law. Previously, he held teaching and research positions at the University of Munich and was a visiting fellow at the Lauterpacht Centre for International Law, University of Cambridge, as well as visiting scholar at the Institute of International Law and the Humanities, Melbourne Law School. His publications include Complicity and the Law of State Responsibility (2011) as well as The Interpretation of International Law by Domestic Courts (2016, co-edited with Georg Nolte). Magdalena Bexell is associate professor and senior lecturer at the Department of Political Science, Lund University, Sweden. Her research concerns international cooperation and human rights, legitimacy and legitimation in global governance, and transnational public–private rule-setting. Bexell’s current projects explore legitimacy and responsibility in the case of the United Nations Sustainable Development Goals for 2030, with a particular focus on legitimation processes at different political levels. Among her publications are Global Governance, Legitimacy and Legitimation (2015), Democracy and Public–Private Partnerships in Global Governance (Palgrave Macmillan, 2010) as well as research articles on UN-business partnerships in the areas of women’s empowerment, health, and development. Paul F. Diehl is an associate provost, Ashbel Smith Professor of Political Science, and director of the Center for Teaching and Learning at the University of Texas at Dallas. Previously, he was Henning Larsen Professor of Political Science at the University of Illinois at Urbana-Champaign. He served as President of the International Studies Association for the 2015–2016 term. He is the editor or author of over 20 books, including most recently The Puzzle of Peace (2016). In addition, he is the author of over 150 journal articles and book chapters on the causes of war, UN peacekeeping, and international law. ix x NOTES ON CONTRIBUTORS Monika Heupel is Junior Professor for International and European Politics at the University of Bamberg. She was a research associate at the University of Bremen, the Free University of Berlin, and the WZB Berlin Social Science Center as well as a post-doctoral fellow at the United Nations University, the German Institute for International and Security Affairs, and the Carnegie Endowment for International Peace. Her research focuses on the legitimacy of international institutions, the human rights obligations of international organizations and advanced democra- cies, and security studies. Her recent publications include With Power Comes Responsibility: Human Rights Protection in UN Sanctions Policy (European Journal of International Relations, 2013) and The Legitimacy of the UN Security Council: Evidence from Recent General Assembly Debates (International Studies Quarterly, 2015, with Martin Binder). She is editor of Protecting the Individual from International Authority: Human Rights in International Organizations (2016, co-edited with Michael Zürn). Gisela Hirschmann is Max Weber post-doctoral fellow at the European University Institute. Previously, she worked as a junior research fellow in the DFG- funded project ‘International organizations and the protection of fundamental rights of individuals’ at the WZB Berlin Social Science Center. She received her Ph.D. from the Free University Berlin, with a dissertation on accountability in United Nations peace operations. Her research interests include the legitimacy and accountability of international organizations, theories of institutional change, human rights and multilateral peace operations, and, most recently, the role of music in peace processes. Her current research project analyses accountability mechanisms in global governance. Her recent publications include Peacebuilding in UN Peacekeeping Exit Strategies: Organized Hypocrisy and Institutional Reform (International Peacekeeping, 2012) and Organizational Learning in United Nations’ Peacekeeping Exit Strategies (Cooperation and Confl ict, 2012). Charlotte Ku is Associate Dean for International Programs and Professor of Law at the Texas A&M University School of Law. Previously, she was Assistant Dean for Graduate and International Legal Studies and Professor of Law at the University of Illinois, College of Law. She served as the acting director of the Lauterpacht Centre for International Law at the University of Cambridge following a 12-year term as executive vice-president and executive director of the American Society of International Law. Her work focuses on issues of global governance and interna- tional law, including, most recently, contributions to the Oxford Handbook on the Use of Force in International Law (2015) and International Organization and Global Governance (2013). Anna Leander is Professor of International Political Sociology at the Department of Management Politics and Philosophy of the Copenhagen Business School and at IRI PUC Rio de Janeiro. She has been associate editor of Contexto Internacional, International Political Sociology, and Security Dialogue) and holds positions on