Samantha Besson

European Legal Pluralism after Kadi

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

Human rights and democracy in a global context: decoupling and recoupling

Human rights and democracy have been regarded as a mutually reinforcing couple by many political theorists to date. The internationalisation of human rights post-1945 is often said to have severed those links, however. Accounting for the legitimacy of international human rights requires exploring how human rights and democracy, once they have been decoupled or disconnected, can be recoupled or reunited across governance levels (vertically) and maybe even at the same governance level (horizontally) albeit beyond the state. The article does so in three steps. The first prong of the argument is dedicated to presenting the moral-political nature of human rights and their relationship to political equality and, hence, their inherent legal nature from a democratic theory perspective. The second section of the article then draws some implications for the domestic or international levels of legal recognition and specification of human rights by reference to their legitimation within the domestic democratic community. It explains the mutual relationship between human rights and citizens’ rights and where international human rights draw their democratic legitimacy from. In the third and final section, the author discusses potential changes in the nature and legitimacy of international human rights once political structures beyond the state become more democratic, and human rights and democracy are being recoupled again at various levels of governance. The European Union being one of the most advanced examples of post-national political integration, recent developments in the regime of human rights protection within the EU are discussed in this new light. In a final step, the transposition to the global level of the argument developed in the European case is assessed and the author flags issues for further research on what democratic theorists should hope for in the new global order.

The Bearers of Human Rights Duties and Responsibilities for Human Rights - A Quiet (R)Evolution

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 theorists provide an elaborate answer. While some make a point of fitting the human rights practice and hence regard states as the sole human rights duty-bearers merely by referring to that practice, others criticize the “state-centric” approach to human rights duty-bearers and expand the scope of the latter to include any international institution beyond the state and even private actors. Curiously, however, even those more expansive accounts of human rights duty-bearers are usually very evasive about why it should be so and especially how it should work. The time has come to broach anew the issue of the bearers of human rights duties, and responsibilities of international institutions in human rights theory, addressing two challenges: focusing on relational and directed human rights duties specifically and not on duties of global justice in general, thereby distinguishing between human rights duty-bearers and other bearers of responsibilities for human rights, on the one hand, and accounting for and justifying the point of international human rights law and practice in this respect, thereby also securing internal arguments for reform, on the other. The essay’s argument is four-pronged. It starts with a few reminders about the relational nature of human rights and the relationship between human rights and duties and what this means for the specification of human rights duties. It then focuses more specifically on the identification of human rights duty-bearers, i.e., states and international institutions of jurisdiction like the European Union (EU), and the allocation of human rights duties to them. The third section of the article is devoted to the concurrent moral responsibilities for human rights that are incurred by other various responsibility-bearers outside institutions of jurisdiction. In the final section, the essay considers the (quiet) revolution potential of the EU’s fast-developing human rights’ duties, and discusses the normative implications of the development of universal international institutions’ human rights duties stricto sensu for international law and politics more generally.

State Consent and Disagreement in International Law-Making. Dissolving the Paradox

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 of the role of state consent that both fits and justifies its central role in the practice of international law-making and, hopefully, strengthens the latters legitimacy in the future. Its proposed justification actually lies in the circumstances of reasonable disagreement among democratic states and this proposal dissolves the paradox. The article argues that, in international law as it is the case domestically, consent is neither a criterion of validity of law nor a ground for its legitimate authority. It also dispels two myths about state consent: its necessary relationship to legal positivism and state sovereignty. Instead, the article argues, the role of democratic state consent is that of an exception to the legitimate authority of international law and hence to its bindingness in a concrete case. While the legitimacy of international law is not democratic, the democratic nature of states and their democratic accountability to their people matter. This is especially the case in circumstances of widespread and persistent reasonable disagreement as they prevail among democratic states in international law-making. In these circumstances, respecting the sovereign equality of democratic states by requiring their consent is the way to grant an equal voice to their people. Of course, there are limits to the democratic state exception that are inherent to both its democratic dimension (it requires respecting basic political equality) and its consensual dimension (it requires that consent is expressed in a free, fair and informed fashion). The article concludes by showing how the proposed disagreement-attuned account of democratic state consent explains various characteristics of the main international law-making processes, i.e., treaties and custom.

Evolutions in Non-Discrimination Law within the ECHR and the ESC Systems: It Takes Two to Tango in the Council of Europe

Recent years have seen important developments in the antidiscrimination case law of the European Court of Human Rights and the European Committee on Social Rights. While the latter has always been a privileged European forum for discrimination monitoring and, when applicable, for discrimination-based collective complaints (with a third of its decisions to date raising discrimination issues), the former has also developed an interesting albeit more marginal antidiscrimination case law and has issued a series of crucial decisions in the last five years or so. The purpose of this Article is to assess and compare the take of the two leading human rights bodies of the Council of Europe and their complementary and mutually reinforcing approaches, by situating them within the broader context of substantive changes in antidiscrimination law in the European Union. The two European institutions’ respective case law is analyzed with a special emphasis on their conceptions of discrimination, their tests and reasoning, and in particular by reference to their case law on disability and the education rights of Roma children. One of the major developments to be discussed is the emergence and consolidation of a collective conception of discrimination by both bodies that is unprecedented in Europe, especially through their case law on indirect and structural discrimination and on enforcing positive duties and in particular positive action. While there are still important differences between the two bodies’ approaches, their growing body of reference jurisprudence shows interesting signs of convergence and cross-fertilization. As a matter of fact, the enhanced coordination between the ECtHR’s and the ECSR’s approaches to non-discrimination has become legally necessary since the entry into force of Protocol 12 to the European Convention on Human Rights and the extension of the ma-

Human Rights qua Normative Practice: Sui Generis or Legal?

Charles Beitz’s recent book The Idea of Human Rights is an important new book in a field of growing academic interest: international human rights theory. Given the author’s previous seminal work on the issue and the other important contributions published recently in human rights theory,1 it has been a long-awaited book. The book defines itself as ‘a contribution to the political theory of human rights’ (1). It is a theoretical examination of human rights qua central idea to the international or global political practice of human rights as it has gradually emerged as a legacy of World War II. It builds upon but also qualifies some of the author’s earlier work on human rights (xii–xiii).2 In this new book, Beitz understands human rights as matters of international concern whose violation by governments can justify international protective and

Discrimination and Freedom of Contract: Philosophical and Economic Foundations of the Law against Racial Discrimination in Employment

The aim of this article is to clarify the apparent antithesis between the fundamental private autonomy of the contractual parties and the right of a party not to be discriminated against and found anti-discrimination law’s legitimacy in philosophy and economics. The purpose of reviving this controversy derives from a recent attack from some of the scholars of the ‘law and economics’ movement on anti-discrimination law, and from Richard Epstein’s Forbidden Grounds in particular. Within the efficiency rationale discourse it is in reality the freedom of contract principle which is reassessed as being fundamentally violated by anti-discrimination law. The study tackles the problem by, first, analyzing potential philosophical foundations, denying any plausibility to Epstein’s derived libertarianism and supporting Gardner’s autonomy-based perfectionism, and, secondly, presenting efficiency-based foundations of anti-discrimination law, leading to the conclusion that anti-discrimination law may lead to efficient results by speeding-up the market process. The final aim of the study is to reconcile anti-discrimination policy and freedom of contract within both a market- and a social-sensitive contract theory, such as the ‘Social Market’ Theory that conceives of freedom of contract as autonomy-based and thus conditioned upon the respect of the prohibition of discrimination.

Community Interests in the Identification of International Law

1 Giorgio Gaja, The Protection of General Interests in the International Community, 364 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 9, 31 (2011). 2 See, e.g., Bruno Simma, From Bilateralism to Community Interest in International Law, 250 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 217 (1994); Gaja, supra note l; FROM BILATERALISM TO COMMUNITY INTEREST (Ulrich Fastenrath et al. eds., 2011); THE COMMON INTEREST IN INTERNATIONAL LAW (Wolfgang Benedek et al. eds., 2014). . 3 See, e.g., CHRISTIAN J. TAMS, ENFORCING OBLIGATIONS ERGA OMNES IN INTERNATIONAL LAW (2005); Christian J. Tams, Individual States as Guardians of Community Interests, in FROM BILATERALISM TO COMMUNITY INTEREST, supra note 2, at 379; James Crawford, Chance, Order, Change: The Course of International Law, 365 COLLECTED COURSES OF THE HAGUE ACADEMY OF INTERNATIONAL LAW 9, 194 (2013). 4 See, e.g., James Crawford, Responsibility for Breaches of Communitarian Norms: An Appraisal of Article 48 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, in FROM BILATERALISM TO COMMUNITY INTEREST, supra note 2, at 224; Christian J. Tams & Alessandra Asteriti, Erga Omnes, Jus Cogens and Their Impact on the Law of State Responsibility, in THE INTERNATIONAL RESPONSIBILITY OF THE EUROPEAN UNION-EUROPEAN AND INTERNATIONAL PERSPECTIVES 163 (Malcolm D. Evans & Panos Koutrakos eds., 2013).

Legitimate actors of international law-making: towards a theory of international democratic representation

ABSTRACT 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 model of representation, the Multiple Representation Model, is based on an expanded, democratic understanding of the principle of state participation: it is specifically designed to palliate the democratic deficits of more common versions of the Principle of State Consent. Second, it endorses a qualified version of the Principle of Civil Society Participation, one that is much more restrictive and more critical of the democratic defects of civil society actors than most of its current supporters. Finally, it reveals how the democratic strengths and deficits of both models are best approached as mirroring one another and need to be combined in a complex account of representation.

Human rights as transnational constitutional law

The dual constitutionality of human rights, when they are protected through both domestic constitutional and international law, is a well-established dimension of the contemporary practice of human rights. Instead of exploring, as others have done before, how domestic constitutional law has been internationalized by international human rights law, on the one hand, or how international law has been constitutionalized through human rights law, on the other, this chapter addresses domestic and international human rights law together in an integrated fashion. This is what it refers to as transnational human rights law. The transnationality of human rights law corresponds to the complementary processes through which domestic and international human rights laws are made and specified, and hence mutually validated and legitimated. After some clarifications of the concept of transnationality in law in general and in human rights law in particular, the chapter justifies the transnationality of human rights law on democratic and epistemic grounds, before drawing implications for its determination methods, that is, human rights comparison and the transnational human rights consensus it thereby identifies.