Human Rights
SANNE VERMOESEN
,DEEL 1: BASIC CONCEPTS OF HUMAN RIGHTS
Hoofdstuk 1: Fundamental rights
1. Common Characteristics
Goal:
A. Protection against the abuse of power/ authority
o Connection with constitutionalism
§ List of fundamental rights: those in power must be restricted
§ Magna Carta, Bill of Rights,…
B. Protection the human dignity
o what is human dignity and how to protect it?
Wackenheim v. France § Dwarf-tossing banned by France based on art 3 ECHR
à against Human dignity
§ Dwarf artist didn’t agree: Violation of his rights to
freedom, employment, respect private life,…
§ Court: no violation à banning was based on objective
and reasonable criteria
o Prostitution: banned because against
BUT some people freely decide to make this their living
à Who’s dignity should we protect?
Summary:
o Paul Martens: ‘as a law professor I’m against it, but as a judge I’m happy it exists
o Room for interpretation to judges
à clash of HR: we all have a different idea about human dignity
2. Are all human rights fundamental?
NOT all HR are fundamental rights
à BUT all fundamental rights are HR
Fundamental Human
=Protected by a constitution or legal framework = may or not have legal enforcement, depending on
§ Enforceable by law the country and its commitment to international
§ Ex: equality, speech, life, religion treaties
Universal rights that every individual processes
simply by being human
§ Reconized globally under documents:
universal declaration of HR
§ Ex: education, work, torture
, 3. Features
1) Absolute
§ They are no higher norms than human rights norms= YES
§ They don’t have any limitation (slavery, torture) = discussion
= BUT not all rights are absolute: rights to live à they are exceptions
= some rights can be waivable: if precise, unambiguous and clear
2) Universal
= means that HR are enjoyed by all individuals, in every place of the word (art 1 UDHR)
o does not mean that HR issues must be solved in the same way in all places in the world
o The implementation of these rights is a matter for the competent national authorities
à positive & negative obligations + margin of appreciation (Handyside case)
Critics Universal Declaration of HR
a) Influenced by Western legal thought
b) Not everyone shares the same needs & experiences
à No universal common standard makes it easy to be abused by violators, authoritarian
rules etc
3) Inalienable
= HR are not capable of being taken away or denied
à BUT there are so many circumstances we except that they are limited by agreement (wear
propriate clothes at work and no slippers)
4) Indivisible
= inable to be divided or separated
à you can’t split them up in categories that or less or more important
4. Categories of fundamental rights
Generations
1) Civil and political rights
Individual rights & freedoms
2) Economic, social and cultural rights
3) Collective solidarity rights Collective rights
, Individual rights and freedoms
1) Civil and political rights
= freedoms and procedural rights
à link with the idea of limiting power
a) Negative obligation: no interference of the authority of the state
b) Cant’t be limited
à Criticism: first generation rights are useless if you don’t guarantee other rights, if people can’t
read of are educated they can’t ask to apply them
2) Social, economic and cultural rights
= participation rights
à Status of the state changes
o First generation: state is enemy
o Second generation: state has certain obligations to fulfil
= positive obligation: guarantee of certain minimal conditions
Collective solidarity rights
Not only individual rights
à also as a group!
à ex: right to peace, self-determination, protection environment
Remarks
Human Rights inflation
= we are moving away from a traditional legal conception of what rights are
Criticisms
o First generation: also positive obligations!
o Second generation: also negative obligations!
à right to privacy used to block environmental issues
o Price of 2nd & 3th generation
§ Taxes
§ Problem: we want the protection, but not the consequence of it
à So, we shouldn’t overestimate the difference between the various generations of rights, but I do think
that their difference conceptually still makes sense. But we see that the lines are becoming blurry!
5. Holders
EVERYONE
o Specific
§ Individuals
§ Private entities
§ Certain groups/ collectivities
o Remarks
§ No need to be legally in a jurisdiction to enjoy HR
§ No conditions, but distinctions are possible
SANNE VERMOESEN
,DEEL 1: BASIC CONCEPTS OF HUMAN RIGHTS
Hoofdstuk 1: Fundamental rights
1. Common Characteristics
Goal:
A. Protection against the abuse of power/ authority
o Connection with constitutionalism
§ List of fundamental rights: those in power must be restricted
§ Magna Carta, Bill of Rights,…
B. Protection the human dignity
o what is human dignity and how to protect it?
Wackenheim v. France § Dwarf-tossing banned by France based on art 3 ECHR
à against Human dignity
§ Dwarf artist didn’t agree: Violation of his rights to
freedom, employment, respect private life,…
§ Court: no violation à banning was based on objective
and reasonable criteria
o Prostitution: banned because against
BUT some people freely decide to make this their living
à Who’s dignity should we protect?
Summary:
o Paul Martens: ‘as a law professor I’m against it, but as a judge I’m happy it exists
o Room for interpretation to judges
à clash of HR: we all have a different idea about human dignity
2. Are all human rights fundamental?
NOT all HR are fundamental rights
à BUT all fundamental rights are HR
Fundamental Human
=Protected by a constitution or legal framework = may or not have legal enforcement, depending on
§ Enforceable by law the country and its commitment to international
§ Ex: equality, speech, life, religion treaties
Universal rights that every individual processes
simply by being human
§ Reconized globally under documents:
universal declaration of HR
§ Ex: education, work, torture
, 3. Features
1) Absolute
§ They are no higher norms than human rights norms= YES
§ They don’t have any limitation (slavery, torture) = discussion
= BUT not all rights are absolute: rights to live à they are exceptions
= some rights can be waivable: if precise, unambiguous and clear
2) Universal
= means that HR are enjoyed by all individuals, in every place of the word (art 1 UDHR)
o does not mean that HR issues must be solved in the same way in all places in the world
o The implementation of these rights is a matter for the competent national authorities
à positive & negative obligations + margin of appreciation (Handyside case)
Critics Universal Declaration of HR
a) Influenced by Western legal thought
b) Not everyone shares the same needs & experiences
à No universal common standard makes it easy to be abused by violators, authoritarian
rules etc
3) Inalienable
= HR are not capable of being taken away or denied
à BUT there are so many circumstances we except that they are limited by agreement (wear
propriate clothes at work and no slippers)
4) Indivisible
= inable to be divided or separated
à you can’t split them up in categories that or less or more important
4. Categories of fundamental rights
Generations
1) Civil and political rights
Individual rights & freedoms
2) Economic, social and cultural rights
3) Collective solidarity rights Collective rights
, Individual rights and freedoms
1) Civil and political rights
= freedoms and procedural rights
à link with the idea of limiting power
a) Negative obligation: no interference of the authority of the state
b) Cant’t be limited
à Criticism: first generation rights are useless if you don’t guarantee other rights, if people can’t
read of are educated they can’t ask to apply them
2) Social, economic and cultural rights
= participation rights
à Status of the state changes
o First generation: state is enemy
o Second generation: state has certain obligations to fulfil
= positive obligation: guarantee of certain minimal conditions
Collective solidarity rights
Not only individual rights
à also as a group!
à ex: right to peace, self-determination, protection environment
Remarks
Human Rights inflation
= we are moving away from a traditional legal conception of what rights are
Criticisms
o First generation: also positive obligations!
o Second generation: also negative obligations!
à right to privacy used to block environmental issues
o Price of 2nd & 3th generation
§ Taxes
§ Problem: we want the protection, but not the consequence of it
à So, we shouldn’t overestimate the difference between the various generations of rights, but I do think
that their difference conceptually still makes sense. But we see that the lines are becoming blurry!
5. Holders
EVERYONE
o Specific
§ Individuals
§ Private entities
§ Certain groups/ collectivities
o Remarks
§ No need to be legally in a jurisdiction to enjoy HR
§ No conditions, but distinctions are possible
