International and European Human Rights Law - volledige samenvatting (lessen) - eerste zit geslaagd 17/20

INTERNATIONAL
AND EUROPEAN
HUMAN RIGHTS LAW
Koen Lemmens
Paul Lemmens




BAC 3

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,Chapter 1. Human Rights: General Introduction
I. The concept of Human Rights

The problem of the definition

 Problems in explaining what exactly are HR: different understandings
 Philosophical nature: “rights that all persons have by virtue of their humanity”
o The answer of lots of philosophers
o Post-hoc rationalization: this definition isn’t helpful at all (does not qualify of classify the HR)
o A definition should help us qualify and classify whether a right is a HR
o A definition should give conditions, which this definition doesn’t  so it doesn’t help us,
doesn’t solve our problem
o What is the criteria: how do we know a right is a HR?
 Legal dimension: “A human right is a HR because the legal system treats the right in such a way”
o Simplistic positivism
o But why does the legal system treat one right as a HR and another as not?
 The answer is most probably: history
 The rights we have as HR are the result of a historical evolution

Historical rights

 A HR = the result of a historical evolution
 Some rights have been considered by the political movements of that time as being fundamental
 Once a right received this qualification, then it becomes very hard to go back
 HR’s often worded in general terms  need interpretation
o Lot of discussions on the interpretation of the ECtHR to the European convention
o “We should stop letting the ECtHR interpret the convention in such a generous way”
o New meanings to key-concepts in the ECHR goes far beyond classic textual interpretation
 Mentalities change
 New ideas, new actual debates, etc.



II. The function of Human Rights (= what they do)
If we are not able to define human rights, we should focus more on what they do.

2 GOALS OF HR’S

1) The protection of citizens against arbitrary State power (temper of power)
2) The protection of human dignity (protect dignity)

(1) Temper of power

 HR = safeguards against abuse of power by the authorities
 Historical argument: limiting what those in power (exercising powers) could do
 Limiting State sovereignty
o Externally: international law
o Internally: constitutional law
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,  Only a protection of a few absolute rights (= unrestricted rights)
o Most rights are subject to limitations
o States have to respect the conditions that allow them to restrict HR
o Constitutional law does NOT make it impossible for public authorities to intervene, it is only
making it difficult; tempering the power
 These rights are setting the threshold higher
 Using the individual rights against the (abusive) power
 Frustrating for politicians: but that is a good sign  HR are strong


(2) Protect dignity

 Importance after WW2: human dignity came in the picture
o Looks a first glance great: we needed to defend vulnerable people
o Sometimes there is more than only the legal text  had to be more open to other inspirations
o Human dignity: “even if the law isn’t very clear, you should know that this kind of violation is
against human dignity”
o Defending vulnerable people, victims of the most awful behavior
o The force of human dignity  became a political argument
o Human dignity: the ultimate defense against States imposing rules that are formally lawful

 But problem: “When does it get qualified as human dignity?”
o The Wackenheim case – dwarf tossing
 Dwarf-tossing: a game back in the 90’s (people with a disease were thrown around)
 The game was not human!  it needed a permit, but the local authorities refused to
deliver one (because it was morally shocking: “human zoos”)  Mr. Wackheim (a
man with dwarfism) brought the case up before the French Counsil of State
• The court argued that dwarf tossing violated human dignity and that human
dignity was an element of public order
• Mr. Wackheim argued “isn’t the choice of a profession, the choice I am
making money, not a part of human dignity?”

o The case lead to 2 conflicting interpretations of human dignity
 A general, conventional view on human dignity
 A choice of a person itself to choose their profession
 Bv. the issue of prostitution / sexism in public advertising
• Is it an attack on women’s dignity or is it a violation of human dignity not to
allow a person to provide sexual services as a profession / to allow a person
to choose to be a part of a sexual advertising?




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,III. The essential features of HR (= characteristics)
(1) Absolute

 ≈ the highest norms I the legal order: cannot be overridden by other more important rights  YES
 ≈ no limitations, no restrictions  NO
o Not absolute in the meaning that there are no limits to them
o HR are seldom supposed to be absolute
 There are very few HR without limitations (ex. Prohibition of slavery, right not to be
tortured);
 But most of them are not (the most rights van be suspended / restricted under
exceptional circumstances)
• Just higher thresholds for authorities to move over
• But they are not making it impossible for states to intervene
(2) Universal (?)

 Over time?
o If these rights would derive from our human being, there is no reason to think there will be
differences over time
o Humanity is humanity, no matter the time area
o BUT: human rights protection is different today than years ago
o SO: no universality over time!

 An expression of the global?
o Do distinction of one human being that is protected rather than others
o Everyone should enjoy the same rights HOWEVER: there is a flip side
 Danger to universality: you have a very localist idea of what is universal, you take this
idea and go everywhere else and tell this idea
• “we have seen the light”:
• But some people don’t want to see your idea
• There is no such thing as a universal idea: there cannot be universal HR
• There are no objective criteria: you cannot express any value judgement
o There is no colonization of 1 idea to the whole world
 People don’t want to know other people values and ideas on everything
 It is a local understanding of practices
 But these local arguments can be in favor of rulers completely violation HR
  We need to find a common ground where HR are accepted by most states
 A common understanding of HR: these rights are to a huge extend universal,
HOWEVER to make them work in practice, you have to adapt certain local settings

o The human convention is based on an idea of subsidiarity
 Although there is a kind of common ground of understanding, there are areas where
different states based on different traditions may have different understandings and
applications
 Ex. different understandings of freedom of expression (ex. blasfemie) / the right to
life (ex. the right to euthanasia may differ in different states because of culture)
 Integrating various cultural understanding: ‘to what extent can states accommodate
without touching on the core of the HR’  where is the line?
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,  Everyone should enjoy the same rights
• But: some rights are more applicable in certain areas than others
• To which extent can you except various interpretations?

 The other extreme (the cultural relativist movement): argument; all cultures are diverse and there is
no shared common understanding and objectivity & everything is determined by a local cultural
context -> therefore there is no such thing as a universal idea and so no universal HR -> otherwise
there would be a kind of colonization of the idea one kind of model of HR and you impose it on the
other ones
o Problem: as well as the universalist concept is a subject to very evident abuses, the same
applies to a very culturist and localist understanding of human rights
o BUT if you go too far in this mindset you will have no ground to fight for example child labor
because the rulers will simply say “this is how we do things”
o CONCLUSION: you need to find a common ground

(3) Inalienable (?)

 = HR are rights that you cannot waive
 Individuals cannot be deprived of their fundamental rights
 Idea Napoleonic code = you have the freedom to enter in contractual relations, but there are limits to
the autonomy of your freedom (example. public orders and rules cannot be set aside by a contract)
o If HR are the most fundamental: it’s not a right you can waive  public order
o Ex. you can’t sign a contract where you agree on cannibalism

 BUT they can be suspended, conditioned or restricted in certain contexts
o Ex. prisoners deprived of their freedom
o Ex. confidentiality clause: restrictions on the freedom of speech
o Ex. provision where you have to be loyal to the company: restriction on the freedom of speech
 SO: you CAN make agreements on fundamental rights, but not at any costs, not in whatever context
o This feature had to be understanded that you can’t COMPLETELY waive these rights.
o You can waive the protection of your fundamental right (examples given)
o BUT you can’t waive the core of your right, you can’t COMPLETELY waive these rights
o AND you have to be very well-informed + the consent must be explicit
 Conditions: (1) explicit, informed consent (2) that can not go to the core of the right

(4) Indivisble

 All human rights are interrelated
 No categories of HR, no ‘more important’ HR: states may not prefer the one over another
 They are a whole: they are linked to each other  they cannot be divided




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,IV. History of Human Rights
HR are historical rights
 Medieval charters
o Cf. Magna Carta (1215) / “Charter of Kortenberg“ / “Blijde Inkomst”
o On carpets: “my home is my castle”  I am, as if I were a king in my home
o Not really HR texts: did not protect the individual rights of all citizens
o Protected rights of certain categories of persons (privileges)
o BUT: serious impact!
 Important role + firsts steps of the ideas that finally lead to the creation of HR
 Important stages in the development of HR

 Second milestone: the Glorious revolution (step in the rebalancing of powers)
 Major breakthroughs: American and French revolution
o The first idea that you have some HR in the modern sense of the word
o Reflections on the limits of authority and sovereignty
o Led to the creation of the idea and concept of HR
o A national catalogue of fundamental rights: followed by many other states
o Grotius: “we should think of the law as a man made thing”  not because of God etc.

 From national constitutions to international protection
o What is states failed to respect their own constitutional provisions
o An international system of the protection of HR
o Sets standards, creates venues: offer a minimal protection
o It covers both regional and global mechanisms


V. Generations of Human rights
 HR classified in 3 categories: Karel Vasak (French lawyer)
 “liberté, égalité, fraterité”: expressed in the categories (values of the French Revolution)
 Historically : fundamental rights = constitutional rights

(1) Civil and Political Rights

 These rights are prominently present in the Declaration and in the American Amendments.
o Before the French and American revolutions there were some medieval charters that already
had some of these rights includes. They gave some rights to the people, but the problem is
that what is given can be taken back.
 Magna Carta / Charter van Kortenberg
o Main breakthrough is the French and the American revolution. They aren’t granted rights by
someone, these rights belong to the mankind.
o Everyone is born free and equal
 The idea of “liberté”
 The idea of non-intervention: authorities should refrain from interfering with the rights of persons
o Authorities should not interfere: “stay away”
o ‘Easy’ for authorities: they don’t need to do anything
 Advantages
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, o It doesn’t come with an important cost (no budget needed)
o For a judge very easy to access: fairly easy to bring before courts
o Easy for authorities: they should just stay away
 Interferences are possible under three conditions:
o A legal basis (1); a legitimate aim (2); a relationship of proportionality (3)
 Criticism: reflecting on the theory of the authority staying away
o By Marxists, Social democrats, etc.
o Argument: “it is bourgeois nonsense” - what does it mean to have freedom of expression if
you can’t read, can’t write?
o “in the ideal world, we would agree, but now the main priority should be the conditions
where people live in”
o The basic needs need to be fulfilled  we want the authorities to intervene
 the need of the second category of HR (2)

(2) Social, Economic and Cultural Rights

 Main priority: the conditions in which people are living and enjoy their FR
 Protecting the basic needs (the funding) of people should go first -> change of the discourse of the
public authorities -> inviting them back -> the state should be a partner, a positive obligation
 The idea of “égalité”
 Citizens claim benefits from public authorities
 Authorities are under an obligation to provide access to services
 Progressive realization: the fulfillment of the requirements will take time
o They need money (a budget)
o Undertaking steps to the best of their possibilities to achieve the goals
 We see the difference between: the obligation of result (at first) vs. obligation of means (later)
(committing to achieving the goals)
 For judges: more difficult to take a clear position

(3) Collective Rights

 The idea of “fraternité”
 Not the rights of individuals, but of the collective
 Ex. rights to development, rights to peace
 More difficult to conceive in tradition legal terms (who is the rightsholder?, what does it mean?)
 Show us how successful the HR narrative and discourse is
 More and more needs an interest are framed in terms of HR

BUT: the relevance of the categorization is not so big

 Rather a matter of degree than of principle
 The different categories are a tool to understand better what we are looking at
 Some aspects may overlap
 Not always very clear to know in which generation a HR falls
 Ex. the first category is about not intervening, but sometimes they have positive obligation
o “the right to life is the right not to kill people”  investigation by the state
o They still imply efforts by the state


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,VI. Holders of Human Rights

Human beings

 Human beings are holders
 Article 1 ECHR: they secure everyone; they ensure all individuals
 No further conditions: only to be within the jurisdiction of a state

Beyond human beings

 We extend certain human rights beyond natural persons
 Private corporations, associations, collective organizations
 Legal persons are entitled to some of the rights that apply to them as well
o Ex. freedom of expression, freedom of speech, to a fair trial, etc.
o Beyond natural persons to the extend that the right can be exercised by non-human beings


VII. Horizontalization of Human Rights – Bearers of HR
 Not only authority – person, but also person – person
 Does it matter if the HR is violated by the public authorities or another private party

Bearers of HRs

Vertical application

 Those who were under the obligation to respect HR = public authorities
 States needs to comply with the HR and the obligations that follow
 All branches of the states (judges, executives, decentralized level)
 Critic = “if the values that are underlined if these are so important (ex. human dignity) why would it
matter by who these values are threatened.”
o If the HRs are so important, it does not matter whether if it’s violated by public authorities or
by someone else
 So: also in private relations you can rely on HR = horizontal application

Horizontal application

 Relations between citizens
 Art. 6 old Covil Code: you couldn’t deviate from the essential provisions of the public order
o Limit of your personal freedom
o A horizontalization of HR
 Sometimes the legal system itself contains provisions in horizontal relationships
o Ex. theft is forbidden – right to property
o Ex. murder is forbidden – right to life
 Sometimes no legal provision: HR can still be applied in horizontal relationships
o = “Drittwirkung”
o “Mittelbare Drittwirkung” (= indirect)
 Possible to indirectly apply HR
 You can’t file a claim against an individual before the ECHR, only against states

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,  You have to go in a triangle: you go to the authorities  “you allowed my neigbour to
violate my rights, so now I have a claim against you”

o “Unmittelbare Drittwirkung”
 Possible to directly invoke against a private party
 You can go to the judge and say that another party violated your human rights
 The judge will argue that you can directly prefer to HR
 Anti-discrimination law: person A uses their HR (autonomy), but person B argues that in this exercise
of person A using their HR, person B’s HR to equal treatment is violated
o Becomes a horizontal conflict
o 2 HR’s of different persons against each other
o Who’s fundamental right is more important?  the judge had to decide
 Sometimes very easy to be solved
 But can be very complicated: someone will always argue that it is against their HR

Business and human rights

 Huge businesses that are more and more economically speaking
o Much more powerful than most of the states
o Key players (that really can make things change)
o Attempts to pose duties on businesses because some states where these companies are located
are too weak to have them comply with certain obligations and certain standards

 Some huge transnational corporations have a bigger impact than some states in the global world
 It brings a obligation for them to respect HR
o A framework of principles that states an businesses should take at heart
o The state should take appropriate steps to prevent, investigate, etc.
o Due diligence obligations: they cannot directly regulate if businesses respect HR, so they set a
due diligence where the businesses have to respect them themselves
 EU has a due diligence directive on these standards
 Huge corporations need to make their supply chain comply with the HR
 They shift obligations of states onto private players
 Private players have to make sure that their workers respect the HR
 Criticism: the risk is that it becomes a ticking box for these big companies, will they
really change is the big question?


VIII. Human Duties?
 Rights and duties are inherently interconnected
 Underlining the social dimension of living together in a given society
 BUT the very nature of HR is tempering state power
o If we would introduce duties, we would be downplaying the tempering of the power
o We would be reinforcing the ones that already have all the power
o The state had the monopoly of taxes and power: what do they need mor?
 Some conventions that make references to obligations
o Can become very dangerous: it can be used against individual persons using their rights
o But what do we win if we mention human duties?

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