Samantha Besson

University of Fribourg · Centre d'études européennes

The obligations stemming from international law are still predominantly considered, despite important normative and descriptive critiques, as being 'based' on (State) consent. To that extent, international law differs from domestic law where consent to the law has long been considered irrelevant to law-making, whether as a criterion of validity or...

Certain cities are emerging as significant and increasingly influential global actors. There is also evidence that those cities contribute in various ways to actual international law-making, sometimes even in contradiction with their respective states’ agenda. There are several reasons why this should be considered, under certain conditions, a posi...

International courts (ICs) have not only been specifying States’ duties, but have also contributed to the definition of States themselves. The article focuses on the case-law of three ICs: the International Court of Justice qua generalist international law court, and its making of the ‘internationalised State’; the European Court of Human Rights qu...

Abstract: A la différence des nombreuses études sur l’interprétation des accords bilatéraux Suisse-UE parues à ce jour et qui se concentrent sur les aspects de droit suisse ou européen de l’interprétation juridique, la présente contribution propose une lecture de droit international de l’interprétation des accords bilatéraux Suisse-UE. Elle prend l...

Numerous documents and decisions of the Swiss authorities in the field of customary international law (CIL) provide an overview of their practice of determination of CIL. This practice displays specific features that are peculiar to Switzerland. The present study sets out and analyzes the Swiss practice of determination of CIL. After presenting the...

This article addresses the identity of the legitimate actors of international law-making from the perspective of democratic theory. It argues that both states or state-based international organisations, and civil society actors should be considered complementary legitimate actors of international law-making. Unlike previous accounts, our proposed m...

http://doc.rero.ch/record/289128?ln=fr

The chapter's concern is meta-theoretical and pertains to the nature of human rights theory. Interestingly, most human rights theorists do not spend much time stating what their theory is a theory of, and hence what kind of theory it should be. The chapter argues in favour of taking the legal dimension of human rights more seriously and, more speci...

This article starts with a paradox: international law-making is ridden with reasonable disagreement and yet no state can be bound by international law without its consent and hence without agreement. Breaking away from the pragmatic resignation that prevails among international law scholars on this question, the article proposes an interpretation o...

Subsidiarity is en vogue in international human rights law. From a largely implicit and mainly jurisprudential principle used in discrete guises by international human rights courts, it has become increasingly present in human rights reasoning and is about to become entrenched in the text of international human rights treaties. Past the usual truis...

After pertaining for a long time to its notion, conditions and related duties, the debate about jurisdiction, territorial or extraterritorial, in the ECHR has now reached the issue of its normative implications for States’ duties and responsibilities in circumstances where many States exercise concurrent jurisdiction at the same time. In response t...

Recent years have seen an increase of interest on the part of human rights theorists in the “supply-side” of human rights, i.e., in the duties or obligations correlative to human rights. Nevertheless, faced with the practically urgent and seemingly simple question of who owes the duties related to international human rights, few human rights theori...

http://doc.rero.ch/record/235837?ln=fr

Dans l’arrêt de Grande Chambre Sitaropoulos et Giakoumopoulos c. Grèce du 15 mars 2012, la Cour européenne des droits de l’homme a considéré qu’il n’existait pas d’obligation pour l’État de permettre l’exercice du droit de vote des expatriés depuis leur lieu de résidence à l’étranger. L’absence d’un consensus européen sur le sujet et la conformité...

International human rights are often considered as evidence of the existence or at least of the possibility of global democracy and citizenship (see, e.g., Simmons 2001, 179; Gould 2004; Erman 2005; Habermas 2011).1 This is sometimes explained by reference to the possible grounding of democracy and human rights in a common value: equality (see, e.g...

The extraterritoriality or extraterritorial application of international and European human rights treaties refers to the recognition by those treaties' states parties of the international and European human rights of individuals or groups of individuals situated outside their territory and, in a second stage, to the identification of their corresp...

(International) human rights theory is en vogue. It has been the case for quite some years in Germany, and it is now also the case in Anglo-American circles. One of the very first issues a human rights theorist is expected to address is the nature of human rights and, hence, of human rights theory. The nature of human rights theory is an important...

In my reply to Jeremy Waldron's article ‘Are Sovereigns Entitled to the Benefit of the International Rule of Law?’, I draw upon and in some ways expand Waldron's important contribution to our understanding of the international rule of law. First of all, I suggest that Waldron's argument about the international rule of law can be used to illuminate...

The past sixty years have seen an expansion of international human rights conventions and supervisory organs, not least in Europe. While these international legal instruments have enlarged their mandate, they have also faced opposition and criticism from political actors at the state level, even in well-functioning democracies. Against the backdrop...

Recent years have seen a greater interest for the ‘supply-side’ of human rights, i. e. for the duties correlative to human rights and their duty-bearers. This is important as, even though human rights have justificatory priority over duties, their existence is tied to their ability to generate not only feasible but also fair and more generally just...

A review of Charles R Beitz, The Idea of Human Rights by Samantha Besson

Over the last few years, international institutional reform has become a major concern among international lawyers. They are not alone in addressing the issue, however. Global justice theorists have also started focusing on the crucial institutional dimension of global justice. So doing, they have gradually developed normative criteria to guide ref...

Relationships between international, EU, domestic law – Different legal orders – Different jurisdictions – Validity, rank, effects of international law in EU legal order – Kadi – Court of First Instance in Kadi – Advocate-General in Kadi – European Court of Justice in Kadi – Pluralism concept of AG Maduro – European legal pluralism reconsidered

The notion of international community is en vogue and pervades international law. Curiously, there are no shared understandings, however, among international lawyers about what this community is or should be. Without a clear conception of the nature, boundaries, and constituency of the community or communities concerned by international law-making...

Interest in republicanism as a political theory has burgeoned in recent years, but its implications for the understanding of law have remained largely unexplored. This book offers a critical survey of the potential for creating republican accounts of fundamental issues in law and legal theory. Bringing together contributors with backgrounds in poli...

The legitimate authority of international law, i.e. its ability to generate moral duties of obedience for its subjects whether states, international organisations or individuals, has become a subject of growing interest among international legal scholars and legal theorists over the past fifteen years or so. The initial difficulty most accounts fac...

Gender discrimination is addressed differently under Article 14 ECHR and EU primary and secondary legal provisions. This is no wonder, since the role and scope of non-discrimination law in both legal orders are not the same, and since the scope of jurisdiction of the European Court of Human Rights and the European Court of Justice applying those pr...

The European Convention on Human Rights has evolved into a sophisticated legal system, whose formal reach into the domestic law and politics of the Contracting States is limited only by the ever-widening scope of the Convention itself, as determined by a transnational court. In this book, a team of distinguished scholars trace and evaluate, compara...

http://doc.rero.ch/record/28184?ln=fr

Object of a burgeoning literature in the past decade, the topic of Union citizenship has been sidelined in the past few years by the enlargement process and the constitutional debate in Europe. This apparent academic neglect does not reflect the legal, social and political reality, however, given the crucial development of EU citizenship rights in...

The justification of the child's right to know her origins and the fundamental interests underlying it have attracted a lot of attention in recent years. This article goes one step further and assesses that right's enforcement in practice together with its guiding principles. It starts by restating what the right consists in and what interests it p...

The question of democratic legitimacy in Europe has resurfaced with a particular gravity after the French and Dutch rejection of the Treaty establishing a Constitution for Europe in 2005. By concentrating on the supranational or international level of governance in the EU, accounts of European democracy propounded since the early 1990s have diverte...

There is growing evidence that the European Union (EU) is becoming more involved in human rights protection and has the capacity to turn into an unprecedented post-national human rights protection institution. Based on that evidence, this article suggests different arguments in favour of a further development in this direction. These arguments stem...

PD (Berne), Dr en droit (Fribourg), M. Jur. (Oxon.), Professeure associée FNS à l'Université de Fribourg et Chargée de cours à l'Institut européen de l'Université de Genève * RFJ 2005 I p. 323 (Cahier spécial), 323 "Seule une société civile démocratique peut constituer un Etat démocratique, mais seul un Etat démocratique peut contribuer à la consti...

Never has sovereignty been as fashionable as since its explanatory and normative force first came into doubt and its knell was tolled in the European Union. With the shift in authority away from the state to new sub-state, supra-state, post-state and non-state entities, an important question is whether the concept of ultimate authority or sovereign...

This article examines whether and how the moral principle of legal coherence or integrity, which has recently been developed further as a response to disagreement in the national legal context, applies to European law. According to the European integrity principle, all national and European authorities should make sure their decisions cohere with t...

This article examines whether legal compromise on matters of justice amounts to a desirable response to the problem raised by reasonable pluralism in politics. Attitudes toward compromise are ambiguous: it is generally seen as much as a valuable technique for settling conflicts by mutual accommodation as a prejudicial concession of one's integrity....