Universal Human Rights as a Shared Political Identity




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Universal Human Rights as a Shared Political Identity:

Impossible? Necessary? Sufficient?

Andreas Follesdal

(Approx as appeared in Metaphilosophy 2009 (1): 65-76) and in Tinnevelt and de Schutter, Global Democracy and Exclusion, Whiley-Blackwell 2010: 161-176)


Abstract: Would a global commitment to international human rights norms provide enough of a sense of community to sustain a legitimate and sufficiently democratic global order? Skeptics worry that human rights cannot help maintain the mutual trust among citizens required for a legitimate political order, since such rights are now too broadly shared. Thus prominent contributors to democratic theory insist that the members of the citizenry must share some features unique to them, to the exclusion of others—be it a European identity (Habermas and Derrida 2003) or a national public culture generally shared only by the members (Miller 1995, 2000). This essay considers and rejects these arguments. While stable, democratic redistributive arrangements do require trust and institutionalised means of trustworthiness; they need not rely on norms or values that distinguish members from non-members: such exclusion is not required. Thus human rights may be part of a common political identity.


Keywords: David Miller, democracy, exclusion, human rights, Jürgen Habermas, political identity, trust.


Human rights scholars may worry about the present popularity of human rights talk. This is not only because of the growing mismatch between strong vocal support for human rights and weak adherence to the same norms on the ground. Another ground for worry is that human rights seem to be regarded as the appropriate solution to more and more problems. Does this popularity come at the expense of intellectual stringency about the proper function—or functions—of human rights?

One of several suggested roles for human rights is as part of citizens’ “common political identity” in a stable legitimate political order—be it at the national or regional levels—or even for a future, legitimate global political order. Thus Charles Beitz observes that “[t]o whatever extent contemporary international political life can be said to have a ‘sense of justice,’ its language is the language of human rights” (Beitz 2001, 269). What are we to make of such proposals? Should human rights be part of —or even exhaust—the values or norms that democratic citizens must share, if their democratic institutions are to survive over time? Beitz’s apparently affirmative answer is not obvious; even the thoughtful Jürgen Habermas and David Miller beg to disagree. These disagreements seem to stem from competing views of the role that a common political identity plays.

The present reflections address one aspect of this issue—namely, the claim that the requisite common political identity must be unique to members of the political order, to the intended exclusion of outsiders. Hence wariness about human rights in this role, since they by now are so broadly shared—at least nominally. I shall deny this assumption: the function of a common political identity does not require it to be unique to members. Thus a shared commitment to human rights norms may well be part of the requisite political identity.

Section 1 presents an account of the role of a common identity based on the need for trust among citizens, drawn from the debates about a European Union whose decision-making procedures require more trust when they move from unanimity to majoritarian rule. Section 2 identifies some components of such a common identity suited to secure trust, where human rights norms provide one of several parts. Section 3 considers criticisms drawn from David Miller’s defense of national identity and from Jürgen Habermas and Jacques Derrida’s conception of a European identity. All three endorse what I deny: that citizens of a sustainable democracy need a shared sense of community or “common identity” based on features that are uniquely theirs, to the exclusion of foreigners. I deny that the requisite trust among citizens requires an exclusionary conception of a common identity or community.

Two practical upshots of these reflections about the mechanisms for trustworthiness are cautiously optimistic on behalf of human rights and democracy. First, some of the pessimism regarding a more well-functioning democracy at the E.U. level is premature, since the requisite common grounds need not be exclusive. Secondly, debates about the feasibility and desirability of democratic arrangements of even more global scope may proceed unabated—while an “exclusionary” account of political identity might call this off, since there would be no one left to exclude from a global democratic order.

Note that this argument does not remove other, perhaps more serious and thought-provoking objections to democratic arrangements above the nation-state. They range from the view that international organizations might not really need much more in the way of democratic legitimacy (Moravcsik 2004), to various “impossibility theorems,” such as Robert Dahl’s perceptive concerns that democratic polities, delegation, and accountability mechanisms will lose their democratic quality if they overextend (Dahl 1999).


1. A Sense of Community and the Need for Trust

It seems an article of faith that citizens of a sustainable, fair, and democratic political order must share an “effectual sense of community” (MacCormick 1997; Weiler 1996; Gould 2004). In the setting of the European Union, the lack of some such sense of community has long been noted by politicians and academics alike (Føllesdal 2001b). Some scholars venture that Union citizenship was introduced precisely in an attempt to alleviate this absence, to create a closer bond between Europeans and the Union institutions (Closa 1992; Shaw 1997; Weiler 1996). That a sustainable legitimate political order requires mutual trust cannot be overstated. Citizens and officials must have reasons to expect that most others will comply with common laws and regulations, and that when asked to create new institutions and rules, they will all be guided by a common commitment to maintaining a fair political order.

In the European Union this need for trust and a sense of community or common identity has gradually grown with an expanded portfolio of increasingly controversial tasks, from securing peace to securing macroeconomic stability. Changes in decision-making procedures to allow increased use of majority and qualified majority rule have rendered citizens more vulnerable to Europeans of other member states. Those who find themselves outvoted must trust the majority to temper their decisions by concern for their plight—for example, by the majority “identifying with” the minority. And the winning majority must trust the “losers” to comply with these decisions, even those counter to the losers’ best judgments, for the sake of the common good and out of respect for the majoritarian decision-making procedures thought to best secure it (cf. Etzioni 2007, 31–33).

I submit that a common political identity can bolster trustworthiness under such circumstances, and thus facilitate the endurance of legitimate institutions. This is necessary to ensure that political institutions, authorities, policies, and decisions, if normatively legitimate, enjoy general compliance and adapt as necessary over time (Choudhry 2001).

To justify this claim, and to see why such a shared, trust-building creating of identity need not be unique among citizens to the exclusion of outsiders, let us start by considering the several ways in which institutions may render citizens and authorities trustworthy (Goodin 1992; Levi 1998; Braithwaite and Levi 1998). The forms of trust of particular concern to us are those required among people who are “contingent compliers” in what are known as “assurance games.”

Contingent compliers are prepared to comply with common, fair rules as long as they believe that others do so as well—for instance, out of a sense of justice. They may be motivated by what John Rawls called a duty of justice: “They will comply with fair practices that exist and apply to them when they believe that the relevant others likewise do their part” (Rawls 1971, 336; see Scanlon 1998). A contingent complier thus decides to comply and cooperate with officials’ decisions if: (a) she perceives government as trustworthy in making and enforcing normatively legitimate policies; and (b) she has confidence that other actors, officials and citizens, will do their part. Institutions, and a common political identity maintained by them, can provide important forms of assurance among contingent compliers on both of these counts. First, institutions may monitor legislation and policies, as well as others’ compliance with them. Such monitoring may suffice to reduce the rate of non-compliance. Institutions may also shift the incentives of actors—for instance, by sanctions—to reduce the likelihood of non-compliance by officials and citizens. Institutions may also reduce the costs of failed trust. Thus, the members of a minority can be assured by human rights restrictions on the scope of legal political decisions that their vital interests will not suffer unduly from majoritarian decisions. Furthermore, institutions may socialize individuals to be contingent compliers and hence do their share in common projects. Such socialization to a common political identity may happen through public education as well as through political parties that shape the range of possible policy platforms (Føllesdal and Hix 2006; Etzioni 2007).

Note that these functions do not require that the common identity be unique to the members of that political order. That other persons elsewhere have similar values, norms, and beliefs need not detract from the trust-building contribution of a common political identity. To promote general compliance among citizens and reduce the sources of mistrust among them does not seem require that they be different from others. To be sure, there is a need to identify and sanction non-compliers or free riders, but the need for trust neither requires such persons, nor requires that there are others, outsiders, who do not share the values, norms, or beliefs of the citizenry.


2. Components of Common Identity


What would the content of a common political identity have to be if its role is to ensure stability in this sense of general compliance by contingent compliers with existing, normatively legitimate institutions? What values, norms, and beliefs do citizens need to accept or support in order to give each other reason to believe in general compliance with legitimate institutions and authorities—be they domestic, European, or global? I submit that citizens must be habituated to at least three sets of commitments.


2.1 Normative Principles of Legitimacy


First, they must accept and act on principles of legitimacy for the political institutions and the constitutional norms. This may be similar to what Habermas calls “constitutional patriotism” (Habermas 1998). Normative principles of legitimacy for national, regional, or global polities contribute to stability in several ways. Principles provide critical standards to assess—and possibly confirm—existing, concrete institutions. Such public standards allow critical discussion of whether an existing order merits compliance by contingent compliers; and facilitate diagnoses of where improvements are needed. In the European Union, some of the values and objectives of the Lisbon Treaty aspire to such standards (European Council 2007). They include human rights, democracy, the rule of law, pluralism, tolerance, justice, gender equality, solidarity and non-discrimination, social justice and protection, and subsidiarity. The intellectual and political challenge is obviously not to list these values, norms, and principles but rather to specify and order them in a defensible way.

One apparent objection to this claim is that there is broad disagreement about conceptions of equality, justice, and human rights—not least within federations, and globally. Andrew Mason concludes from this fact of disagreement that shared reasons are unnecessary, since different conceptions of these principles do not hinder compliance. Citizens may value the same institutions, but for reasons drawn from contested conceptions of the ideals of equality, justice or freedom (Mason 1999, 281). I submit, however, that the fact of such disagreement indicates that future compliance is not secure—it will depend on whether the various conceptions will support future compliance under new circumstances. In the absence of publicly shared principles, individuals are therefore less able to appear trustworthy, and this may threaten long-term general compliance.


2.2 Conceptions of Citizens and of the Political Order


Secondly, beyond constitutional patriotism, citizens must share fragments of a justification of such principles of legitimacy. To illustrate: one justification might consist of a conception of the proper roles of individuals, including their responsibilities as citizens, and an understanding of the objectives of the political order. One exemplar of this is Rawls's well-known conception of society as a system of co-operation among individuals, regarded for such purposes as free and equal participants. That particular conception is even on its own terms insufficient or inappropriate for regional or global political orders, characterized as having at best non-centralized political authority (cf. Rawls 1999).

In the multi-polar European political order this would include conceptions both of the role of member state and of the Union institutions; similarly, perhaps, in a (quasi-) federal global political order. A Rawls-inspired response might hold that such orders must also be perceived by citizens as a complex system of co-operation that expresses the inhabitants' standing as political equals. Such non-unitary political orders would need standards for the proper allocation of political authority between sub-units and the common political bodies. One candidate might be a defensible specification of a “principle of subsidiarity,” one version of which is found in a protocol to the Lisbon Treaty (European Council 2007, 150–52; cf. Føllesdal 1998).

Why is a shared commitment to the grounds for common principles necessary or desirable? One important reason is that such shared grounds help settle disagreements about principles and institutions and their interpretation, not least about when the institutions should be changed. Consider how in the European Union disagreements about the appropriate division of powers between member states and Community institutions are a recurrent source of mistrust within and among the member states. Citizens suspect their politicians and other politicians, and politicians suspect their civil servants, of inappropriately supranational loyalties, induced by “two-level diplomacy,” group think, and loyalty shifts (Trondal and Veggeland 2003). A shared conception of the proper roles of member states and the E.U. institutions can reduce such disagreements, bolster trustworthiness, and reduce mistrust.

One objection to accounts such as this is that they fail to show what reason individuals have to comply with their own government. Since many constitutions satisfy my preferred principles and conceptions of the person, why—on this view—do I have a moral duty to comply with my own authorities, rather than simply with those that are the most just? This has given rise to worries that constitutional patriotism seems to provide citizens with insufficient bonds and allegiance to their own political institutions at the national, Union, or global level (Kymlicka and Norman 1994).

In response, I submit that we must look more closely at the political virtues and duties of citizens in a political order. Such virtues, on Rawls’s account, include “toleration and mutual respect, and a sense of fairness and civility” (Rawls 1971, 122). In particular—and central to the present account that focuses on contingent compliers—citizens have, and should be brought to have, a sense of justice. That is: an effective desire to comply with existing, fair rules and to give one another that to which they are entitled, “predicated on the belief that others will do their part” (Rawls 1971, 336, 505, 567). I submit that this duty of justice helps justify the ties to one’s own political order, given that this order is legitimate and generally complied with by others.

Through the duty of justice, citizens have political obligations to just institutions that exist and apply to them. Those who accept this abstract duty must abide by the requirements that particular institutions lay down, as long as these institutions satisfy the normative principles and claim to regulate their actions. Some of these institutions are typically specified in written or unwritten constitutions—for example, of one’s member state and those of larger regional or world political orders. The duty of justice also requires citizens to comply with the results of these institutions, namely, particular laws and political practices, in so far as they are legitimate.


2.3 Acquaintance with Local Norms, Cultural Practices, and Others’ Institutions


A third commitment among contingent compliers is that citizens of democracies are, and must be known to be, somewhat familiar with the institutions, the public political culture, and the other cultural practices that flourish in their own state and at the regional and global levels. There are several reasons to require such familiarity—though not full compliance by each person.

The central concern is that proposed common legal institutions and policies may conflict with normatively unobjectionable existing social practices and local institutions. More responsive or creative legislation and policies can often avoid or reduce such conflicts, and such accommodation seems required for responsible democratic rule. In large and multi-level political orders citizens may thus have an obligation to consider how centralized decisions by majority rule may impact on particular segments of the population and within each sub-unit. Citizens should therefore have some knowledge of the main cultures that have adherents in the political community, so they can be brought to understand whether the proposals will respect these cultures to a sufficient degree. For instance, within the European Union, citizens need a sound understanding of at least the major religious, intellectual, and philosophical traditions. Only then can citizens pay due respect to the expectations of adherents to those traditions while they exercise political power.

This duty undoubtedly puts burdens on citizens, but note, first, that such knowledge does not require that citizens generally have to be committed to permanently maintaining the various cultural practices and institutions. Secondly, I submit that this obligation may largely be honored indirectly, by political parties and media. Furthermore, the burden can be alleviated by a principle such as subsidiarity that would limit the occasions for centralized decision making and restrict the scope of parties affected by common decisions (Føllesdal 1998, 2001a).

Familiarity with the various social cultures and traditions also helps ensure a general appreciation among citizens that the requisite shared values have indeed been secured by citizens within the existing political order, through various institutions and practices. Such knowledge of local practices is helpful in times when institutional creativity is needed, in order to explore how the same values and norms are best secured in new circumstances. This awareness also helps the public understand how common institutions and history have endorsed these conceptions, values, and norms. For instance, welfare arrangements by voluntary organizations and states, taxation for humanitarian purposes, and other forms of solidarity remind all that the will to pitch in for the common good is broadly shared. By recalling and always reclaiming such values and ideals, citizens remind each other that they are citizens with an overriding sense of justice. Such a historical perspective reminds citizens that they have indeed been trustworthy and fair. This may help give each citizen reason to comply, in the confirmed belief that others have done and will do their share.


2.4 No Need for a Common Political Identity Unique to Citizens


I have sketched three main components of a common political identity that helps serve to provide assurance among contingent compliers that they will comply in the future. They must be committed to principles of legitimacy and to conceptions of citizens and of the political order; and they must be somewhat acquainted with the world views, practices, and legal institutions of other citizens within the political order.

Note that this common political identity does not require that the components be endorsed only by citizens, not by others. Nor is it important that others, such as non-citizens, hold other norms, values, or beliefs. The concern is only to provide citizens with reasons to believe that other citizens will honour what is expected of them. Whether non-citizens have similar reasons to honour expectations that hold for them is irrelevant for this objective.

This distinguishes this account from two other theories that call for a “common identity” in response to the needs for trust within democratic arrangements.1 Indeed, David Miller and Jürgen Habermas agree on little else with regard to the conditions for and prospects for a European identity and a legitimate European integration. Miller in particular is highly skeptical of the prospects of maintaining pan-European welfare regimes, owing to the lack of a substantive national identity among Europeans. In contrast, Habermas hopes that such an identity can be constructed, a construction he explicitly sought to contribute to an article co-written with Jacques Derrida.

What unites the three is the belief that the common identity needed—in Europe, and presumably in democratic political orders everywhere—must be unique: it must set members apart from non-members.


3. Objections Considered


3.1 David Miller


David Miller’s account of citizenship also focuses on the role of trust, assurance, and stability. He defends the need for a shared national identity with substantive norms, beliefs, or commitment. This identity serves to set members off from other peoples: “The people who compose a nation must believe that there is something distinctive about themselves that marks them off from other nations, over and above the fact of sharing common institutions. This needs not be one specific trait or quality, but can be a range of characteristics which are generally shared by the members of nation A and serve to differentiate them from outsiders” (Miller 2000, 30–31). Miller holds that such a national identity is required to maintain trust, especially for solidaristic arrangements characteristic of European welfare states.

I shall suggest that the argument for an exclusionary national identity has flaws, so the need for trust and trustworthiness among citizens does not require them to seek values or norms that are unique to their own community (cf. Føllesdal 2000). Miller’s main argument is that “a viable political community requires mutual trust, trust depends on communal ties, and nationality is uniquely appropriate here as a form of common identity” (Miller 1994, 143). Miller is correct about the need for citizens to share some public, common value platform. But it is not clear why these communities must build on “natural” divisions that “must correspond to what are taken to be real differences between peoples” (Miller 1994, 140). Miller also fails to explain why a unique “national identity” with a broad range of shared social norms is the only appropriate candidate for such an identity. What he has in mind is “a set of understandings about the nature of a political community, its principles and institutions, its social norms, and so forth” (Miller 1995, 158). But he fails to explain which social norms should be shared, why these should be exclusionary, and why these elements are needed in order to maintain trust.

Miller is pessimistic about any commonalities that can serve such purposes among Europeans. There are no obvious and attractive values accepted only by Europeans yet acceptable as legitimate common grounds. On my alternative account, the search for unique values or norms is misguided: they are not required for mutual trust in the future compliance of others.


3.2 Jürgen Habermas


The call by Habermas and Derrida for a common, unique European identity likewise seems based on the need for trust, especially the extensive need for trust within majoritarian democratic institutions. They look for “historical experiences, traditions, and achievements offering European citizens the consciousness of a political fate that has been shared together, and that can be shaped together” (Habermas and Derrida 2003, 293). This approach seems appropriate and plausible. However, Habermas and Derrida dismiss some values and norms central to Europeans, because these are by now broadly shared also elsewhere:


Haven't the most important historical achievements of Europe lost their identity-creating power exactly because of their worldwide success? And what is to hold together a region characterised like no other by continuing rivalry between self-confident nations?

Christianity and capitalism, natural science and technology, Roman law and the Code Napoleon, the bourgeois-urban way of life, democracy and human rights, which spread the secularization of state and society over other continents, no longer form its unique possessions. (Habermas and Derrida 2003, 294)


So Habermas and Derrida look elsewhere. Their findings are hardly successful, or so I shall suggest—but on my alternative account this is of little importance. They should instead not be so quick to dismiss the components of a political identity that are not unique to Europeans.

The reason for this dismissal may stem from Habermas’s account of the role of a shared political identity (Føllesdal 2009; cf. Choudry 2001, 393; and Laborde 2002). His concern seems to be that constitutional principles lack driving force on their own: constitutional patriotism “is not enough” (Canovan 2000). Citizens need a “motivational anchorage” that the nation’s unique historical experience can best provide (Habermas 1992, 16). Existing institutions and political practices are instrumentally valuable in this regard, since they motivate us to abide by and promote the constitutional principles. Norms or practices that are not unique to Europe cannot serve this motivational role. Democracy and human rights are unsuited for this purpose, since they “no longer form [Europe’s] unique possessions” (Habermas and Derrida 2003, 294).

Habermas’s nominees include the French Revolution, scepticism about market efficiency, trust in state capacity, caution about the role of the state vis-à-vis religion, and the welfare models now secured by European states.

Two general observations are appropriate. First, there is much to criticize with regard to the historical accuracy and normative significance of these claims (Føllesdal 2009). Put briefly:

Trust in the state’s ability to organize and govern varies much more among Europeans—and among non-Europeans—than seems compatible with Habermas’s concern for a unique and shared attitude among Europeans. Crucially, surveys such as the European Values Study and the World Values Survey show that citizens of European and other states have markedly different levels of trust in their own governments, varying across states and political affinities (Norris 1999).

One of the central challenges facing the European Union is clearly the relationship between church and state in Europe. But this issue is hardly settled in the way claimed by Habermas: religious leaders often endorse politically contested positions. Consider the role of the Catholic Church in Irish politics, or against liberalization of abortion legislation, or in support of Polish resistance against communism. Recall church support for Dutch welfare arrangements or church protests against equal rights for homosexuals. Habermas cannot imagine that European politicians would start the day with public prayer or would see their decisions tied to a religious mission—he presumably wants to contrast their lack of public display of religious belief with President George W. Bush. But this distinction is open to challenge. Consider the many Christian Democrats who fight, and fought, for a supranational European Union: Jean Monnet, Robert Schuman, Alcide de Gasperi, and Konrad Adenauer were all deeply affected by Catholic social thought, and they no doubt saw the European project as one required by their God.

Likewise, it seems difficult to identify a shared and uniquely European welfare state model whose arrangements and ideals are distinct from those of Japan, New Zealand, the United States, and other states—and a model that Europeans will agree is worth establishing and keeping.


The point here is not that these norms or practices are not of great value but that the empirical claims are not correct, or that they are not unique to Europe. For Habermas and Derrida there would be bleak prospects for a European common identity, and hence for a stable, legitimate and democratic European Union.

The second observation is that Habermas and Derrida’s search for unique values seems unnecessary, on the account offered above. An immediate challenge is then to address the motivational challenge that critics pose to Habermas’s constitutional patriotism. Can individuals be motivated by such inherently “abstract” motivations and an abstract sense of solidarity or reciprocity based on universalistic principles of social justice, contingent compliance, and a sense of justice? (Preuss 1995, 275.) If principles of human rights and democracy are not themselves enough to motivate people, what does my alternative offer as a supplement?

In response, I submit that the three components of a common political identity sketched above do include motivational drivers. In particular, the motivation stems not only from principles of legitimacy but also from the duty of justice. Recall that this duty “requires us to support and to comply with just institutions that exist and apply to us” (Rawls 1971, 115). Stated thus, this no doubt appears to be a somewhat “impersonal” motivation: the interest in doing our moral duty. But this duty also accounts for individuals' political allegiance towards their own political institutions—and their obligations to fellow citizens, as indicated above. Citizens must be committed not only to abstract principles but also to particular institutions (as specified in constitutions) and their results, namely, concrete laws and political practices.

The account sketched above thus also offers an account of why existing institutions and the political culture have value that is not merely instrumental, and of why it matters, normatively, that they are ours. To justify political obligation, we draw on the duty of justice and not only appeal only to “abstract principles” but also show that a particular, legitimate set of institutions does in fact exist. That is: the institutions’ rules are publicly known, they are generally complied with by other citizens and authorities, and they apply to us.

One relevant premise is, thus, that these institutions and practices are indeed ours—that they apply to us. To act on this general, abstract sense of justice is thus to act in our day-to-day lives towards other particular individuals in accordance with the particular legitimate expectations they have about our behaviour here and now. I submit that to seek to honour others’ trust in us in these day-to-day settings is a principle of action, based on a sense of justice, that does motivate many. Thus formulated, it also seems clear that the practices and expectations that citizens share must somehow exclude someone.


Conclusion


I have sought to argue against the view that citizens in a stable democracy, at the national, regional, or global level, must share an exclusionary political identity—that is, that they must share values, norms, or beliefs that are uniquely theirs to the exclusion of others. If that view were correct, we would have reason in principle to suspect that a European—not to mention an all-encompassing global—democracy could not be sustained. I have argued against arguments in favour of this position by David Miller and Jürgen Habermas, and there are several implications of the alternative I have defended.

First, some of the pessimism regarding a more well-functioning democracy at the E.U. level is premature. Second, discussions about the feasibility and desirability of democracy on an even more global scale should not dwindle. Thirdly, human rights norms may well be part of—though not all of—a common political identity suited to build trust among members of a political order. Fourthly, political theorists may want to move beyond alleged conflicts between liberalism and communitarianism, between abstract principles and particularistic commitments (Føllesdal 2009). To act on an “abstract” duty of justice is to honour in our daily lives the particular legitimate expectations of those around us. In a globalized world, where many common institutions have consequences that cut across state borders, many of the expectations at stake are likewise global. I have suggested that a conception of global citizenship may draw upon commitments to the human rights of these many others who invisible to us participate in upholding our common institutions. The fact that human rights norms are more generally accepted does not detract from their value as part of a possible conception of global or regional citizenship. To the contrary: in so far as human rights norms are shared, they can contribute to the trust we need, as contingent compliers motivated by a sense of justice, to honor the legitimate expectations of each other as political equals (Føllesdal 1990).




Norwegian Centre for Human Rights

University of Oslo

Postboks 6706

St. Olavs plass

0130 Oslo

Norway

andreas.follesdal@nchr.uio.no
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