Volume 1: Introduction to HR Law
Part 1. Human Rights: General Intro
[Exam: made up of 2 questions (changes may occur but notification will be given) ]
[ - An open ‘essay’ question on theory, divided in sub-parts ]
[ - A case (“what should the court decide; what are arguments…”) ]
[Toledo: “texts – can be used at the exam” à annotations allowed cf. faculty rules ]
Chapter 1. Introduction
Problem of definition
- What are Human Rights? “The rights people enjoy because their human nature”?
è Critics: it is a ‘post-hoc’ rationalization
It does not allow to classify certain rights as human rights
è As a lawyer, the answer to “what makes a HR a HR” may be self-referential:
because the legal system treats it in such a way (simplistic positivism)
- But why does ‘the legal system treat it that way’? à History
Historical rights
- Historically, certain rights were found to be of a particular importance
è Once it reached such a qualification, going back is very diXicult
- Tho historically there have been setback, and right now we may be experiencing
one (actua: letter to the ECtHR concerning the ECHR, by many political leaders)
è As we can’t precisely define what HR are; let’s look at what they do
Chapter 2. What human rights do
Temper power
=Historically (before WWII) most important objective; “constitutional (\human) rights”
- Code d’Hammurabi and Magna Carta were not ‘first instances’ of human rights
(tho ‘progression’) they contained specific rights to specific groups
- In the medieval times, first ‘hints/prompts’ on human rights ‘pop up’
o Medieval sayings & welcome mats quote: “My home is my castle”
§ Arguably the 1st instances of protection of privacy/property
§ King in own home à authorities can’t simply enter and rule
o Blijde inkomststraat à new rulers gave goods & rights (populism)
§ Human rights? NO, as you don’t own them as human but are
granted by the ruler (who can take them back)
, - English revolution à “Bill of Rights” kings must give in to parliaments
- Only after French & American Revolution we have, for the first time, the very
idea of HUMAN rights, in the modern sense of the word (enlightenment thinking)
o Comparison of teenagers & enlightenment thinking (“Who are you to…?”)
- Divine right of Kings à How to canalize power? à Constitutionalism and
institutionalism (checks and balances)
o Checks and balances enough? (actua: VS & Trump) maybe not
è Must empower individuals with certain, fundamental, constitutional rights
- Creating certain spheres where authorities cannot (haphazardly) intervene
o Hurdles to prevent unauthorized intervention; to keep authorities in line
o DiXerence in levels à right to Tripel Westmalle >< right not to be tortured
è Setting the threshold higher à tempering state (arbitrary) power
- Rule of law; not rule of man
(actua: Supreme Court, symbolizing ‘Institutions’ not as eXective as thought)
Protect dignity
- Tho not such a ‘new concept’ à relevance ‘exploded’ shortly after WWII
o Appears in many constitutions and in the ‘human rights language’
o It’s popular (high appeal) and you can’t really oppose it; opposing
someone (even falsely) defending human dignity is precarious & delicate
- “Human Dignity” ≠ defined notion: you can (and politicians do) stuX it with a lot
more then firstly thought à “Human dignity is all over the place”
o Where earlier, human rights are mainly historical rights and we’d have to
go to the source to understand them (legal positivism)
o After WWII à problematic when sanctioning people for committing
atrocious crimes which, at the time, in the legal system were not (yet)
punishable, based on violating human dignity à should have known
- Case about ‘dwarf tossing’ – perceived as immoral just like earlier ‘human zoo’
à Forbidden by the mayor but à Appeal BY THE PERSON “PROTECTED”, posing
the question: “Who are you to decide what a dignified way of making money is?”
o Later a similar movement by sex workers against certain prohibitions
o Idem: advertising campaign, with Pommeline being scarcely dressed
§ Opposing opinions: bad as it is: “not dignifying women”
§ Criticism: “WHOSE dignity?”
à Prohibiting Pommeline (based on ‘dignity’) from making her own
decisions about her body is similarly against her human dignity
à Is the majority entitled to intervene?
è “Human dignity solves as many problems as it creates”
,Chapter 3. Features
1) Absolute (‘problematic’ terminology)
o Absolute: rights that cannot be overridden by other more important ones
o ≠ absolute as: no limitations, nor restrictions
§ Cf. HR as hurdles
2) Universal (?) à not all; common ground HRs are +/- (sometimes adapted)
o “Everyone all over the globe enjoys these rights”; but:
§ ≠ universality over time à HR 1 century ago ≠ HR right now
§ Despite that people at said time were part of humanity as well
è Theoretically universal? à Yes, but practically?
o Is it up to universalists (in extremis) to impose their ‘light’ onto other
cultures who didn’t ask for it? (universalists ~ consultants)
>< Localism/culturalism (in extremis) doesn’t give grounds to fight child
labor, female genital mutilation, discrimination of gay people… elsewhere
è Essential to find common ground; certain HR accepted by most states
o Therefore, acceptable by most cultures in the world
o Reflect a common understanding of HR
à These rights are universal, however:
• In applying them, necessary to ‘adapt’ them to local setting
3) Inalienable (?) à not all; alienable when: not core & informed consent
o “HR are rights that you cannot waive” à limits contractual autonomy
o Doing so would be >< public order
§ Obviously in case of hitman contracts for example
§ Quid, freedom of speech and NDA’s?
§ Quid, reality tv and right to privacy?
è Alienable! BUT NOT at any cost
o Cf. HR as hurdles:
§ Not the ‘core’ of HR; only a part
§ Informed consent
4) Indivisible
o Historical discussion, after the fall of the Berlin Wall
o All HR are of equal value; one is not favored above the other
o No division in categories, in importance… they are interrelated, indivisible
è Correct as: states cannot prioritize one over another (cf. equal importance)
è Correct as: all together necessary for human dignity (cf. equal importance)
è Somewhat correct as: no division in categories
(next chapter [generations of HR] for pedagogical & historical reasons)
, Chapter 4. History of Rights and Generations
1) Civil and Political Rights
o Are not granted, but people are born with them as individuals and as
member of a political community
o Counter-majoritarian devices (e.g. freedom of speech…)
§ Authorities shall not intervene (stay away) [obligation of result]
o Easy for governments à obligation to not do something à no budget
o Easy for judges à government shouldn’t have done anything à did they
do something? Yes or No?
2) Social, Economic and Cultural Rights
o Product of reflection on the idea of the government staying away
§ What does freedom of expression mean if you can’t read?
§ What does it mean to have freedom of thought, if your main
concern is survival, if you’re ill, if you’re hungry…?
o Change of mentality
§ Authorities shall do things (either themselves, either through
helping people to achieve the goals) [obligation of means]
o Given the scarcity of resources
§ To the best of their ability, undertaking steps to achieve the goals
o Much more diJicult for judges to evaluate
§ As these evaluations are political choices (Trias Politica)
3) Collective Rights
o Fairly new phenomenon
o Rights to peace, rights to clean environment…
§ Much more diXicult to conceive in traditional legal terms
§ Who is the right holder, who is the right bearer, what does it mean?
o Overstretching the concept of Human Rights?
!! DiXerence shown above is overstated as first generation rights also imply positive
obligations (e.g. right to fair trial)
è Conceptually, not easy (nor definitive) to categorize HR, e.g. right to social
allowance (3rd gen.) à is lowering them against right to property (1st gen.)?
!! Don’t forget, all HR are interwoven à diXerences aren’t as black & white as presented
Compare EU-citizen & Belgian student [Mo-Fr, 1st gen. à parents stay away, autonomy.]
>< [Weekend, 2nd gen. à positive obligations, parents should…] (~cherry picking)
Incoherent attitude towards government [“they should…” >< “tax is theft…”]
Part 1. Human Rights: General Intro
[Exam: made up of 2 questions (changes may occur but notification will be given) ]
[ - An open ‘essay’ question on theory, divided in sub-parts ]
[ - A case (“what should the court decide; what are arguments…”) ]
[Toledo: “texts – can be used at the exam” à annotations allowed cf. faculty rules ]
Chapter 1. Introduction
Problem of definition
- What are Human Rights? “The rights people enjoy because their human nature”?
è Critics: it is a ‘post-hoc’ rationalization
It does not allow to classify certain rights as human rights
è As a lawyer, the answer to “what makes a HR a HR” may be self-referential:
because the legal system treats it in such a way (simplistic positivism)
- But why does ‘the legal system treat it that way’? à History
Historical rights
- Historically, certain rights were found to be of a particular importance
è Once it reached such a qualification, going back is very diXicult
- Tho historically there have been setback, and right now we may be experiencing
one (actua: letter to the ECtHR concerning the ECHR, by many political leaders)
è As we can’t precisely define what HR are; let’s look at what they do
Chapter 2. What human rights do
Temper power
=Historically (before WWII) most important objective; “constitutional (\human) rights”
- Code d’Hammurabi and Magna Carta were not ‘first instances’ of human rights
(tho ‘progression’) they contained specific rights to specific groups
- In the medieval times, first ‘hints/prompts’ on human rights ‘pop up’
o Medieval sayings & welcome mats quote: “My home is my castle”
§ Arguably the 1st instances of protection of privacy/property
§ King in own home à authorities can’t simply enter and rule
o Blijde inkomststraat à new rulers gave goods & rights (populism)
§ Human rights? NO, as you don’t own them as human but are
granted by the ruler (who can take them back)
, - English revolution à “Bill of Rights” kings must give in to parliaments
- Only after French & American Revolution we have, for the first time, the very
idea of HUMAN rights, in the modern sense of the word (enlightenment thinking)
o Comparison of teenagers & enlightenment thinking (“Who are you to…?”)
- Divine right of Kings à How to canalize power? à Constitutionalism and
institutionalism (checks and balances)
o Checks and balances enough? (actua: VS & Trump) maybe not
è Must empower individuals with certain, fundamental, constitutional rights
- Creating certain spheres where authorities cannot (haphazardly) intervene
o Hurdles to prevent unauthorized intervention; to keep authorities in line
o DiXerence in levels à right to Tripel Westmalle >< right not to be tortured
è Setting the threshold higher à tempering state (arbitrary) power
- Rule of law; not rule of man
(actua: Supreme Court, symbolizing ‘Institutions’ not as eXective as thought)
Protect dignity
- Tho not such a ‘new concept’ à relevance ‘exploded’ shortly after WWII
o Appears in many constitutions and in the ‘human rights language’
o It’s popular (high appeal) and you can’t really oppose it; opposing
someone (even falsely) defending human dignity is precarious & delicate
- “Human Dignity” ≠ defined notion: you can (and politicians do) stuX it with a lot
more then firstly thought à “Human dignity is all over the place”
o Where earlier, human rights are mainly historical rights and we’d have to
go to the source to understand them (legal positivism)
o After WWII à problematic when sanctioning people for committing
atrocious crimes which, at the time, in the legal system were not (yet)
punishable, based on violating human dignity à should have known
- Case about ‘dwarf tossing’ – perceived as immoral just like earlier ‘human zoo’
à Forbidden by the mayor but à Appeal BY THE PERSON “PROTECTED”, posing
the question: “Who are you to decide what a dignified way of making money is?”
o Later a similar movement by sex workers against certain prohibitions
o Idem: advertising campaign, with Pommeline being scarcely dressed
§ Opposing opinions: bad as it is: “not dignifying women”
§ Criticism: “WHOSE dignity?”
à Prohibiting Pommeline (based on ‘dignity’) from making her own
decisions about her body is similarly against her human dignity
à Is the majority entitled to intervene?
è “Human dignity solves as many problems as it creates”
,Chapter 3. Features
1) Absolute (‘problematic’ terminology)
o Absolute: rights that cannot be overridden by other more important ones
o ≠ absolute as: no limitations, nor restrictions
§ Cf. HR as hurdles
2) Universal (?) à not all; common ground HRs are +/- (sometimes adapted)
o “Everyone all over the globe enjoys these rights”; but:
§ ≠ universality over time à HR 1 century ago ≠ HR right now
§ Despite that people at said time were part of humanity as well
è Theoretically universal? à Yes, but practically?
o Is it up to universalists (in extremis) to impose their ‘light’ onto other
cultures who didn’t ask for it? (universalists ~ consultants)
>< Localism/culturalism (in extremis) doesn’t give grounds to fight child
labor, female genital mutilation, discrimination of gay people… elsewhere
è Essential to find common ground; certain HR accepted by most states
o Therefore, acceptable by most cultures in the world
o Reflect a common understanding of HR
à These rights are universal, however:
• In applying them, necessary to ‘adapt’ them to local setting
3) Inalienable (?) à not all; alienable when: not core & informed consent
o “HR are rights that you cannot waive” à limits contractual autonomy
o Doing so would be >< public order
§ Obviously in case of hitman contracts for example
§ Quid, freedom of speech and NDA’s?
§ Quid, reality tv and right to privacy?
è Alienable! BUT NOT at any cost
o Cf. HR as hurdles:
§ Not the ‘core’ of HR; only a part
§ Informed consent
4) Indivisible
o Historical discussion, after the fall of the Berlin Wall
o All HR are of equal value; one is not favored above the other
o No division in categories, in importance… they are interrelated, indivisible
è Correct as: states cannot prioritize one over another (cf. equal importance)
è Correct as: all together necessary for human dignity (cf. equal importance)
è Somewhat correct as: no division in categories
(next chapter [generations of HR] for pedagogical & historical reasons)
, Chapter 4. History of Rights and Generations
1) Civil and Political Rights
o Are not granted, but people are born with them as individuals and as
member of a political community
o Counter-majoritarian devices (e.g. freedom of speech…)
§ Authorities shall not intervene (stay away) [obligation of result]
o Easy for governments à obligation to not do something à no budget
o Easy for judges à government shouldn’t have done anything à did they
do something? Yes or No?
2) Social, Economic and Cultural Rights
o Product of reflection on the idea of the government staying away
§ What does freedom of expression mean if you can’t read?
§ What does it mean to have freedom of thought, if your main
concern is survival, if you’re ill, if you’re hungry…?
o Change of mentality
§ Authorities shall do things (either themselves, either through
helping people to achieve the goals) [obligation of means]
o Given the scarcity of resources
§ To the best of their ability, undertaking steps to achieve the goals
o Much more diJicult for judges to evaluate
§ As these evaluations are political choices (Trias Politica)
3) Collective Rights
o Fairly new phenomenon
o Rights to peace, rights to clean environment…
§ Much more diXicult to conceive in traditional legal terms
§ Who is the right holder, who is the right bearer, what does it mean?
o Overstretching the concept of Human Rights?
!! DiXerence shown above is overstated as first generation rights also imply positive
obligations (e.g. right to fair trial)
è Conceptually, not easy (nor definitive) to categorize HR, e.g. right to social
allowance (3rd gen.) à is lowering them against right to property (1st gen.)?
!! Don’t forget, all HR are interwoven à diXerences aren’t as black & white as presented
Compare EU-citizen & Belgian student [Mo-Fr, 1st gen. à parents stay away, autonomy.]
>< [Weekend, 2nd gen. à positive obligations, parents should…] (~cherry picking)
Incoherent attitude towards government [“they should…” >< “tax is theft…”]
