Chapter 1: concept of human rights
Paul Lemmens was the judge in the ECHR for 9 years
Exam: one reflection question, one case (start with the case)
A. Introduction
Human rights
Legal concept that entered into the everyday talks
Already introduced into the introduction classes of law
What are human rights?
Problem of definition
o The textbook definitions don’t give as an idea about specific
rights, they say something about the abstract rights
o If a biologist would start a class about mammals, if he gives a
definition about what a mammal is you could decide when
you see an animal if it is a mammal or not
You couldn’t do this with the textbook definitions of
human rights
No problem with the obvious ones (right of life, fair
trial, …)
o Right to housing: some people would
already start doubting
o Right to annual holidays: not clear either
o Is it possible to find a kind of definition to give indications on
what human rights are
The prof has serious doubts about this
Many lawyers and philosophers have tried but didn’t
succeed
Either under protected (very thin definition)
Either overprotected (very thick definition)
Not a new problem
When the ECHR was created there was a
workgroup to brainstorm about a definition
They agreed that they didn’t agree on anything
The concept is not very hard to define, but the
conceptions are extremely difficult to define
The limits are something that there isn’t an
agreement about
, o This is great for lawyers, they could use it in
their advantage
Human rights as historical rights
o A more modest approach
o Rights aren’t a logical consequence of certain theories, but
they were created in a certain period but they developed
through time because of history
What do they do?
Maybe we can get an understanding about what they are, when we look at
what they do, what they are for
Temper power
In the modern understanding of human rights the very basis
HR are the byproducts from modernity
o Not to say that in premodern rights there weren’t any HR
But you could not compare them to a modern HR catalogue
no systematic approach
o Grotius: “we should think of the law as if god does not exist”
He adds to that that he thinks god does exist but that they
need to act like if he doesn’t exist
Add that very moment it becomes clear that everything we
know, we decide about the power of the state authority is a
matter of mankind
This was when mankind was questioning things, authority
was challenged
o This idea was what lead to the American and
French revolution
If you constitute power you also need to temper this power
o What are the limits to the power
These limits are HR
Protect dignity
HR rights are also there to protect human dignity
The argument that people need whenever the formalistic analysis of
the legal system delivers unwanted results
The concept you need when nazis argued that they applied the law
that was applicable
o But you could by no means accept that these events were
accepted
o So that’s when you could use the norm of human dignity
,Case Wackenheim v. France
Dwarf-tossing, is a
back in the 90’s you had the fairs (kermis) and one of the things you could do was
dwarf-tossing. You needed a permit to do this.
BUT in 1992 the major of the French communities Morsang-sur-Orge intervened and
forbade it.
=> he could not accept it and because it was difficult to find a legal basis, he claimed It was
violating human dignity:
=> we have someone with a physical handicap that is being mocked and ridiculed. the mayor
didn’t want to go back to the periods with human zoos.
However, one of the dwarves, Mr. Wackenheim, claimed that dwarf-tossing wasn’t
against “human dignity” but only against the majors interpretation/perception of
“human dignity”, and that he had another concept of human dignity:
=> people are autonomous and should be allowed to make professional choices, for
themselves.
=> He also argued that he could have trouble finding another job.
Wackenheim went to the Human Rights Committee of the UN, but the HR
committee, just like the French Council of State, essentially concluded that dwarf-
tossing was so repugnant that it imposed a negative externality by diminishing human
dignity, a public good.
Although, mr Wackenheim lost the case, he made a very good argument.
Another similar case (not named just to say Wackenheim is not the only case about HD)
Accusation that some posters and banners are sexist, but sometimes you have models
who don’t care themselves
o Pommelien temptation island who does a sexist video for casino promotion
Some sexworkers went to the ECHR that there could be reasons to restrict this
profession
Human dignity can be used by a moral majority to sanction certain things.
Quote by Paul Martens: “ As an academic I am against human dignity but as a judge
I was many times so happy that human dignity existed, when you feel there is
something wrong but there is no legal basis that prohibits it. In these cases you can
use human dignity.”
, Features of human rights
1) Absolute
Not absolute as if there are no limits to them
There are very few HR without limitations
Ex. Prohibition of slavery, right not to be tortured
NOT the right to life, there are exceptions to this right
Absolute as if there are no higher norms
2) Universal
We can all agree that rights we consider HR now, werent’t HR 20 years ago
It is an ambition to be universal
Some rights are more applicable in certain areas than others
Contested idea that they are universal
3) Inalienable
but you waive these rights all the time (freedom of expression in class, you can’t
talk)
you work in a law firm, code of conduct (you made an agreement that you can’t go
in bikini to work)
if you are a football player and there is a conflict you need to go to a disciplinary
commission first before going to court, another waive of a HR.
this feature had to be understanded that you can’t COMPLETELY waive these
rights.
You can’t have a labour agreement for live, because it would affect your personal
freedom.
4) Indivisible
They are a whole
They are linked to each other
History of Rights and Generations
The generations of HR are always represented in textbooks but they
always remark that today they are one
o Professor still thinks that there is a value in discussing these
generations
o You can link these 3 generations of rights with the values of
the French revolution (Liberté, égalité, fraternité)
o Created by Karel Vasak
1) Civil and political rights
o Before the French and American revolutions there were some
medieval charters that already had some of these rights
includes. Attempts to temper the power of the rulers. If you
are a new ruler, you try to be a nice guy. They gave some
rights to the people, but the problem is that what is given can
be taken back.
Magna carta
Paul Lemmens was the judge in the ECHR for 9 years
Exam: one reflection question, one case (start with the case)
A. Introduction
Human rights
Legal concept that entered into the everyday talks
Already introduced into the introduction classes of law
What are human rights?
Problem of definition
o The textbook definitions don’t give as an idea about specific
rights, they say something about the abstract rights
o If a biologist would start a class about mammals, if he gives a
definition about what a mammal is you could decide when
you see an animal if it is a mammal or not
You couldn’t do this with the textbook definitions of
human rights
No problem with the obvious ones (right of life, fair
trial, …)
o Right to housing: some people would
already start doubting
o Right to annual holidays: not clear either
o Is it possible to find a kind of definition to give indications on
what human rights are
The prof has serious doubts about this
Many lawyers and philosophers have tried but didn’t
succeed
Either under protected (very thin definition)
Either overprotected (very thick definition)
Not a new problem
When the ECHR was created there was a
workgroup to brainstorm about a definition
They agreed that they didn’t agree on anything
The concept is not very hard to define, but the
conceptions are extremely difficult to define
The limits are something that there isn’t an
agreement about
, o This is great for lawyers, they could use it in
their advantage
Human rights as historical rights
o A more modest approach
o Rights aren’t a logical consequence of certain theories, but
they were created in a certain period but they developed
through time because of history
What do they do?
Maybe we can get an understanding about what they are, when we look at
what they do, what they are for
Temper power
In the modern understanding of human rights the very basis
HR are the byproducts from modernity
o Not to say that in premodern rights there weren’t any HR
But you could not compare them to a modern HR catalogue
no systematic approach
o Grotius: “we should think of the law as if god does not exist”
He adds to that that he thinks god does exist but that they
need to act like if he doesn’t exist
Add that very moment it becomes clear that everything we
know, we decide about the power of the state authority is a
matter of mankind
This was when mankind was questioning things, authority
was challenged
o This idea was what lead to the American and
French revolution
If you constitute power you also need to temper this power
o What are the limits to the power
These limits are HR
Protect dignity
HR rights are also there to protect human dignity
The argument that people need whenever the formalistic analysis of
the legal system delivers unwanted results
The concept you need when nazis argued that they applied the law
that was applicable
o But you could by no means accept that these events were
accepted
o So that’s when you could use the norm of human dignity
,Case Wackenheim v. France
Dwarf-tossing, is a
back in the 90’s you had the fairs (kermis) and one of the things you could do was
dwarf-tossing. You needed a permit to do this.
BUT in 1992 the major of the French communities Morsang-sur-Orge intervened and
forbade it.
=> he could not accept it and because it was difficult to find a legal basis, he claimed It was
violating human dignity:
=> we have someone with a physical handicap that is being mocked and ridiculed. the mayor
didn’t want to go back to the periods with human zoos.
However, one of the dwarves, Mr. Wackenheim, claimed that dwarf-tossing wasn’t
against “human dignity” but only against the majors interpretation/perception of
“human dignity”, and that he had another concept of human dignity:
=> people are autonomous and should be allowed to make professional choices, for
themselves.
=> He also argued that he could have trouble finding another job.
Wackenheim went to the Human Rights Committee of the UN, but the HR
committee, just like the French Council of State, essentially concluded that dwarf-
tossing was so repugnant that it imposed a negative externality by diminishing human
dignity, a public good.
Although, mr Wackenheim lost the case, he made a very good argument.
Another similar case (not named just to say Wackenheim is not the only case about HD)
Accusation that some posters and banners are sexist, but sometimes you have models
who don’t care themselves
o Pommelien temptation island who does a sexist video for casino promotion
Some sexworkers went to the ECHR that there could be reasons to restrict this
profession
Human dignity can be used by a moral majority to sanction certain things.
Quote by Paul Martens: “ As an academic I am against human dignity but as a judge
I was many times so happy that human dignity existed, when you feel there is
something wrong but there is no legal basis that prohibits it. In these cases you can
use human dignity.”
, Features of human rights
1) Absolute
Not absolute as if there are no limits to them
There are very few HR without limitations
Ex. Prohibition of slavery, right not to be tortured
NOT the right to life, there are exceptions to this right
Absolute as if there are no higher norms
2) Universal
We can all agree that rights we consider HR now, werent’t HR 20 years ago
It is an ambition to be universal
Some rights are more applicable in certain areas than others
Contested idea that they are universal
3) Inalienable
but you waive these rights all the time (freedom of expression in class, you can’t
talk)
you work in a law firm, code of conduct (you made an agreement that you can’t go
in bikini to work)
if you are a football player and there is a conflict you need to go to a disciplinary
commission first before going to court, another waive of a HR.
this feature had to be understanded that you can’t COMPLETELY waive these
rights.
You can’t have a labour agreement for live, because it would affect your personal
freedom.
4) Indivisible
They are a whole
They are linked to each other
History of Rights and Generations
The generations of HR are always represented in textbooks but they
always remark that today they are one
o Professor still thinks that there is a value in discussing these
generations
o You can link these 3 generations of rights with the values of
the French revolution (Liberté, égalité, fraternité)
o Created by Karel Vasak
1) Civil and political rights
o Before the French and American revolutions there were some
medieval charters that already had some of these rights
includes. Attempts to temper the power of the rulers. If you
are a new ruler, you try to be a nice guy. They gave some
rights to the people, but the problem is that what is given can
be taken back.
Magna carta
