samenvatting human rights law

HUMAN RIGHTS LAW
Door Charlotte Wilmotte




Universiteit Antwerpen
Prof. Frédéric Vanneste, 2025-2026


1

,1. Human Rights: Concept & Universal Protection

1.1. Concept
1.1.1. Terminology

Fundamental Rights and Freedoms
= guaranteed rights & freedoms in our constitution -> rights we think about than everyone should have

Basic Rights
= grondrechten

Human Rights
= mensenrechten -> more about the international guarantees & international law -> mostly used by
professionals

 all have a different meaning, but in reality they would be used interchangeably

Why fundamental?

2 main reasons
• protecting the individual against arbitrary power State
- most important one
- after WO2: we need to protect the individuals against arbitrary
- evolution
 acts by the authorities
E.g. the police can’t punch someone in the face
 failure to act by the authorities
= when the authorities should do something to protect you, but they haven’t done it yet
 some people find this too controversial, too far-reaching
 protection against third parties
E.g. a mother can’t punch her kid

• protecting human dignity
- everyone should be in the possibility to live in human dignity
- vulnerability
 sooner or later everyone will be a vulnerable person
E.g. prisoners = most vulnerable people, but not always the most popular -> even if they did something
wrong, they are still people & we need to protect them

Liberal democracy (3 pillars)

What we defend = liberal democracy




2

,3 pillars
• Rule of Law
- nobody (including the state) = above the law, everyone is bounded by the law -> even the
authorities
- if they don’t respect the law -> court

• Democracy
- majority rule -> majority makes the law

• Human Rights
- To protect the vulnerable, but also protecting against the majority rule -> mechanism to protect the
minorities

 interaction between those 3 -> you need them all
- there is no rule of law within societies if human rights are not protected
 human rights cannot be protected in societies without a strong rule of law
 the rule of law = the implementation mechanism for human rights, turning them from a
principle into a reality
 the rule of law = the vehicle for the promotion & protection of human rights

- the Rule of Law = closely linked with the ideals of democracy
 democracy cannot exist without the Rule of Law
 rule of law means that no individual, president or private citizen: stands above law
 democratic governments exercise authority by way of law & are themselves subject to law’s
constraints

- democracy provides an environment that respects human rights & fundamental freedoms, & in
which the freely expressed will of people is exercised
 people have a say in decisions & can hold decision-makers to account
 women & men have equal rights & all people are free from discrimination
 the values of freedom, respect for human rights & the principle of holding periodic & genuine
elections by universal suffrage = essential elements of democracy -> in turn, democracy
provides an environment for the protection & effective realization of human rights
 on the other hand, human rights keep democracy in balance by also recognizing the minority:
human rights can protect the minority from the majority

 democratic state under the Rule of Law = a state where citizens elect their own leaders, & the
government itself is bound by the law, while also helping to ensure that the law is respected among
the citizens of the state

Duties

One-sided emphasis on rights?

We also have duties -> it can erode your rights
E.g. African Charter, chapter II (1986)
• art. 27: duties towards family, society, State, etc.
• art. 29: duty to preserve harmonious development of family, to serve national community, etc.


3

, Criticism: duties are often used to deny the existence of certain rights (abuse)

1.1.2. Legal sources

Positive law
• legal sources: general principles, customary law, treaties, constitutions
• it’s a human right when the law says it’s a human right
• man made law
• freedoms/protections written down in statutes & are legally enforceable

Natural law: Human Dignity
• being human suffices to have fundamental rights
• art. 1 UDHR: “All human beings are born free & equal in dignity and rights.”
• also recognized in various treaties (e.g. art. 1 EU-Charter)
 recognized as a part of human rights -> opens a door to new legal thinking

Our system is not the only way to look at the law
• “Universal juridical Conscience” (Inter-American Court of Human Rights)
 we don’t have to look at all the state practices etc. -> we can just look at the universal juridical
conscience -> tendency to natural law
• European Consensus (will of States) (European Court of Human Rights)
 our system is always about the consensus, the will of states = very important in our system -> more
positive law
 is there something in between? Human right treaties = law-making treaties -> for common interest
(instead of pure national State interest), no reciprocity (geen wederkerigheid)
 we have a common interest
 interpretation leads to new law -> law making treaties -> system where judges can interpret open
norms

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