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samenvatting human rights law

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Prof. Frédéric Vanneste

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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

Human dignity: ambiguous concept

Human Rights Committee
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Wackenheim
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Table of contents

  1. 01 1. Human Rights: Concept & Universal Protection 2
    1. 1.1. Concept 2
    2. 1.2. Universal Protection 7
  2. 02 2. Region al Protection: Council of Europe 12
    1. 2.1. Introduction: 2 Europes 12
    2. 2.2. Council of Europe: Legal Sources 13
    3. 2.3. Council of Europe: Enforcement Mechanisms 13
  3. 03 3. Regional protection: European Union 22
    1. 3.1. EU HR sources 22
    2. 3.2. EU enforcement mechanisms 24
    3. 3.3. Relationship EU-Coe 28
  4. 04 4. Extra-territorial jurisdiction 28
  5. 05 5. National protection: Belgium 28
    1. 5.1. Relationship between legal orders: effect of treaties in Belgium 28
    2. 5.2. Human Rights Protection in Belgium 31
    3. 5.3. Execution of ECtHR judgments in Belgium 33
    4. 5.4. Effective remedy 34
  6. 06 6. Typology of Human Rights obligations 35
    1. 6.1. Human Rights Treaties: interpreting open norms 35
    2. 6.2. Typology of the State’s Obligations 37
    3. 6.3. Various Legal Frameworks for Various Rights 40
    4. 6.4. Derogable Rights in Times of Emergency? 41
  7. 07 7. Right to life 42
    1. 7.1. Absolute right 42
    2. 7.2. Scope 43
    3. 7.3. Obligations 43
    4. 7.4. Positive Obligations and right to life 46
  8. 08 8. Prohibition of torture, inhuman or degrading treatment 48
    1. 8.1. Absolute right 48
    2. 8.2. Applicability 50
    3. 8.3. Classification (merits) 50
    4. 8.4. Obligations 51
    5. 8.5. Attribution – burden of proof 52
  9. 09 9. Right to a fair trial 56
    1. 9.1. Applicability 56
    2. 9.2. Guarantees 59
  10. 10 10. Right to respect for private & family life 65
    1. 10.1. Right to Respect for Private Life 66
    2. 10.2. Right to Respect Family Life 73
  11. 11 11. Freedom of assembly and association 75
    1. 11.1. Sources 75
    2. 11.2. Freedom of Assembly and Association 76
    3. 11.3. Union Freedom 78
    4. 11.4. Right to strike: protected by Art. 11 ECHR? 80
  12. 12 12. Economic, social & cultural rights 81
    1. 12.1. Legal Sources 81
    2. 12.2. Classical (outdated?) approach 84
    3. 12.3. Alternative Integrated Approach 86
    4. 12.4. ESCR – typology and obligations 87
  13. 13 13. Right to protection of health 94
  14. 14 14. Right to housing 94
  15. 15 15. Right to education 94
    1. 15.1. Sources 94
    2. 15.2. Scope 95
    3. 15.3. Dimensions 95
    4. 15.4. Core obligations 96
    5. 15.5. Educational Freedom 97
    6. 15.6. Right - Positive obligations 98
  16. 16 16. Equality and non-discrimination 100
    1. 16.1. Sources 100
    2. 16.2. Legal Significance 102
    3. 16.3. Typologies 103
    4. 16.4. Protected grounds 107
    5. 16.5. Added value EU-Charter 111
  17. 17 17. Transversal issues 112
    1. 17.1. Human Dignity 112
    2. 17.2. Margin of Appreciation 112
    3. 17.3. Pluralism 116
    4. 17.4. Horizontal Effect/Drittwirkung 116
    5. 17.5. Hierarchy 116
    6. 17.6. Conflicting rights 117
    7. 17.7. Waiver 117
    8. 17.8. Emphasising procedural obligations 118
    9. 17.9. Other transversal issues 118

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