WEEK 1 – HUMAN RIGHTS LAW
Human rights : general Introduction..................................................................................................... 2
Introduction ....................................................................................................................................... 2
Problem of definition ....................................................................................................................... 2
Historical rights .............................................................................................................................. 2
What they do ...................................................................................................................................... 2
Temper power................................................................................................................................. 2
Protect dignity ................................................................................................................................ 3
Features ............................................................................................................................................ 3
History of rights and generations ......................................................................................................... 4
First-generation rights (civil and political rights) ................................................................................ 4
Second-generation rights (social, economic, cultural rights) ............................................................. 4
Third-generation rights (solidarity rights or collective rights) .............................................................. 4
Nuances......................................................................................................................................... 4
Holders of Human rights – Bearers of Human Rights ............................................................................. 5
Human Duties? .................................................................................................................................. 5
pg. 1
,HUMAN RIGHTS : GENERAL INTRODUCTION
INTRODUCTION
PROBLEM OF DEFINITION
- Almost everyone has a different understanding of what exactly human rights cover.
- E.g.: Rights that we al enjoy because we are human
o Not the right answer, prof says he doesn’t understand it because it is a post hoc
rationalisation
This definition is to abstract, is doesn’t tell us much more about what exactly
those human rights are, or how they operate, what their nature is and what
grounds them
Definition provides a tool, to use it, this definition isn’t helpful for it
There are no conditions => no if and only if
Biology
Theory practice
- Where do the definition end, but where can we start them
o E.g.: right to have Westmalle
- It doesn’t solve but it does give us a clue
- Prof: why is something a human rights, because the legal system treats it as a human right
o But why does the legal system decides it is a human right => history
HISTORICAL RIGHTS
- The rights we have as human rights, are a result of historical revolution
o And are of course connected to philosophy and great thinkers, and the fundamental
ideas of the political movements of that time
- Ones you establish something as a human right, it is hard to go back
o It would be a bit awkward to go back, e.g.: right to not get tortured
- But can we view it as a renormalisation, because something there can be set backs
WHAT THEY DO
If we can’t define human rights in a perspective way, or decide on the spot if something is a human right,
we can focus instead on what they do.
TEMPER POWER
- Simplest formulation
o => human rights limit state sovereignty
- Before WOII, human rights had the idea to temper the power of the government
o Safeguard against abuse of power by the authorities
This what constitutional and human rights still do today
They limit rather than rule out possibilities for public authorities to
intervene in the personal freedom of citizens.
o Rulers can not rule in an absolute way any more
- Gustavo Zagrebelsky
- Trying to avoid the mis use of state power
o E.g.: Trump
pg. 2
,PROTECT DIGNITY
- Came to the forefront after the WOII
o Dupré 2 reasons:
1) bioethical revolution that forces us to reflect on what it means to be “human”
2) human rights revolution
UN Charter mentions it in the Preamble
German post-world war II constitution
- But what is human dignity, where do we draw the line, but also where do we start it?
o It can now be used as a way to doge criticism
o Whose dignity? Who decides what dignity is?
- The Wackenheim case
o French case about a freak show about dwarfs (Lancer de nain or Morsang-sur-Orge)
o It became a trend to throw these people around, but couldn’t get a permit for it, the
mayor said it is morally not done.
o it reminded them of the human zoos
o But than the question came how can they forbid it, because the mayor can’t be the
moral senser of there country.
Appeal from the dwarfs, because they found that other people can’t define what
is dignified way of making money.
o The same discussion can be found today around sex workers
FEATURES
- Absolute (= highest norms in the legal order?)
o Can it be overridden by other rights?
o There are a few rights that can’t be overridden, but for other ones there can be
exceptions. (art. 8 – 11 ECHR)
Notstandfeste rights = cannot be suspended in time of emergency
Art. 15 ECHR
o There have to be some caution for using the term absolute
- Universal (?)
o Evolution
Are they timeless & global?
o No separation between humans
o Cultural relative revolution
- Inalienable (?)
o = onvervreembaar
o Individuals cannot be deprived of their fundamental rights, but under certain they can
renounce the protection of their fundamental rights
o You can’t waive your human right
o Napoleon
Contract law => you can’t make a personal agreement to set aside your rights
o The theory is you can waive the protection of your human rights, but it has to be very
informative + explicit, and it can not go to the core of the right.
- Indivisible
o All the human rights are equally important, it isn’t because there are generations of
rights that one is importer than the other.
pg. 3
, HISTORY OF RIGHTS AND GENERATIONS
Karel Vasak
- Human rights are often grouped into three “generations,” each with different characteristics,
though the distinctions are not absolute.
FIRST-GENERATION RIGHTS (CIVIL AND POLITICAL RIGHTS)
- The idea of liberté
- The traditional fundamental rights
o => people enjoy as human beings & members of a political community
- Main focus => non-intervention
o Authorities should refrain form interfering with the rights of persons, citizens have a right
to oppose public authorities in order to avoid unlawful interference
- Abwehrrechte
- Difference form the other generations:
o Focus on negative obligations: the State must abstain from interfering.
o Interference is possible but must meet conditions (legal basis, legitimate aim,
proportionality).
o Easy to adjudicate in courts.
o Immediate in nature and usually require no major budget.
SECOND-GENERATION RIGHTS (SOCIAL, ECONOMIC, CULTURAL RIGHTS)
- Last quarter of the 19th century
- Focus on the material circumstances in which people lice their live
- Égalité
- Difference form other generation of rights:
o Focus on positive obligations: the State must actively provide services (e.g., housing,
health care, education).
o Harder to assess in courts: unclear standards, progressive realization over time.
o More deferential judicial review due to separation of powers.
o Entail significant financial resources.
THIRD-GENERATION RIGHTS (SOLIDARITY RIGHTS OR COLLECTIVE RIGHTS)
- Fraternité
- Difference with the other generations of rights
o Share features with both previous generations but emphasize collective exercise and
international dimension (e.g., environmental protection).
o Critics argue the “generations” model is outdated, since many modern rights (e.g.,
transitional justice, refugee law) don’t fit neatly in the scheme.
NUANCES
- The differences are a matter of degree rather than principle. Even first-generation rights require
positive obligations (e.g., independent judiciary for fair trial).
- Overlaps exist: some rights can belong to multiple categories (e.g., labour unions, environment).
- Equality, non-discrimination, and non-arbitrary interference remain essential across all
generations.
pg. 4
Human rights : general Introduction..................................................................................................... 2
Introduction ....................................................................................................................................... 2
Problem of definition ....................................................................................................................... 2
Historical rights .............................................................................................................................. 2
What they do ...................................................................................................................................... 2
Temper power................................................................................................................................. 2
Protect dignity ................................................................................................................................ 3
Features ............................................................................................................................................ 3
History of rights and generations ......................................................................................................... 4
First-generation rights (civil and political rights) ................................................................................ 4
Second-generation rights (social, economic, cultural rights) ............................................................. 4
Third-generation rights (solidarity rights or collective rights) .............................................................. 4
Nuances......................................................................................................................................... 4
Holders of Human rights – Bearers of Human Rights ............................................................................. 5
Human Duties? .................................................................................................................................. 5
pg. 1
,HUMAN RIGHTS : GENERAL INTRODUCTION
INTRODUCTION
PROBLEM OF DEFINITION
- Almost everyone has a different understanding of what exactly human rights cover.
- E.g.: Rights that we al enjoy because we are human
o Not the right answer, prof says he doesn’t understand it because it is a post hoc
rationalisation
This definition is to abstract, is doesn’t tell us much more about what exactly
those human rights are, or how they operate, what their nature is and what
grounds them
Definition provides a tool, to use it, this definition isn’t helpful for it
There are no conditions => no if and only if
Biology
Theory practice
- Where do the definition end, but where can we start them
o E.g.: right to have Westmalle
- It doesn’t solve but it does give us a clue
- Prof: why is something a human rights, because the legal system treats it as a human right
o But why does the legal system decides it is a human right => history
HISTORICAL RIGHTS
- The rights we have as human rights, are a result of historical revolution
o And are of course connected to philosophy and great thinkers, and the fundamental
ideas of the political movements of that time
- Ones you establish something as a human right, it is hard to go back
o It would be a bit awkward to go back, e.g.: right to not get tortured
- But can we view it as a renormalisation, because something there can be set backs
WHAT THEY DO
If we can’t define human rights in a perspective way, or decide on the spot if something is a human right,
we can focus instead on what they do.
TEMPER POWER
- Simplest formulation
o => human rights limit state sovereignty
- Before WOII, human rights had the idea to temper the power of the government
o Safeguard against abuse of power by the authorities
This what constitutional and human rights still do today
They limit rather than rule out possibilities for public authorities to
intervene in the personal freedom of citizens.
o Rulers can not rule in an absolute way any more
- Gustavo Zagrebelsky
- Trying to avoid the mis use of state power
o E.g.: Trump
pg. 2
,PROTECT DIGNITY
- Came to the forefront after the WOII
o Dupré 2 reasons:
1) bioethical revolution that forces us to reflect on what it means to be “human”
2) human rights revolution
UN Charter mentions it in the Preamble
German post-world war II constitution
- But what is human dignity, where do we draw the line, but also where do we start it?
o It can now be used as a way to doge criticism
o Whose dignity? Who decides what dignity is?
- The Wackenheim case
o French case about a freak show about dwarfs (Lancer de nain or Morsang-sur-Orge)
o It became a trend to throw these people around, but couldn’t get a permit for it, the
mayor said it is morally not done.
o it reminded them of the human zoos
o But than the question came how can they forbid it, because the mayor can’t be the
moral senser of there country.
Appeal from the dwarfs, because they found that other people can’t define what
is dignified way of making money.
o The same discussion can be found today around sex workers
FEATURES
- Absolute (= highest norms in the legal order?)
o Can it be overridden by other rights?
o There are a few rights that can’t be overridden, but for other ones there can be
exceptions. (art. 8 – 11 ECHR)
Notstandfeste rights = cannot be suspended in time of emergency
Art. 15 ECHR
o There have to be some caution for using the term absolute
- Universal (?)
o Evolution
Are they timeless & global?
o No separation between humans
o Cultural relative revolution
- Inalienable (?)
o = onvervreembaar
o Individuals cannot be deprived of their fundamental rights, but under certain they can
renounce the protection of their fundamental rights
o You can’t waive your human right
o Napoleon
Contract law => you can’t make a personal agreement to set aside your rights
o The theory is you can waive the protection of your human rights, but it has to be very
informative + explicit, and it can not go to the core of the right.
- Indivisible
o All the human rights are equally important, it isn’t because there are generations of
rights that one is importer than the other.
pg. 3
, HISTORY OF RIGHTS AND GENERATIONS
Karel Vasak
- Human rights are often grouped into three “generations,” each with different characteristics,
though the distinctions are not absolute.
FIRST-GENERATION RIGHTS (CIVIL AND POLITICAL RIGHTS)
- The idea of liberté
- The traditional fundamental rights
o => people enjoy as human beings & members of a political community
- Main focus => non-intervention
o Authorities should refrain form interfering with the rights of persons, citizens have a right
to oppose public authorities in order to avoid unlawful interference
- Abwehrrechte
- Difference form the other generations:
o Focus on negative obligations: the State must abstain from interfering.
o Interference is possible but must meet conditions (legal basis, legitimate aim,
proportionality).
o Easy to adjudicate in courts.
o Immediate in nature and usually require no major budget.
SECOND-GENERATION RIGHTS (SOCIAL, ECONOMIC, CULTURAL RIGHTS)
- Last quarter of the 19th century
- Focus on the material circumstances in which people lice their live
- Égalité
- Difference form other generation of rights:
o Focus on positive obligations: the State must actively provide services (e.g., housing,
health care, education).
o Harder to assess in courts: unclear standards, progressive realization over time.
o More deferential judicial review due to separation of powers.
o Entail significant financial resources.
THIRD-GENERATION RIGHTS (SOLIDARITY RIGHTS OR COLLECTIVE RIGHTS)
- Fraternité
- Difference with the other generations of rights
o Share features with both previous generations but emphasize collective exercise and
international dimension (e.g., environmental protection).
o Critics argue the “generations” model is outdated, since many modern rights (e.g.,
transitional justice, refugee law) don’t fit neatly in the scheme.
NUANCES
- The differences are a matter of degree rather than principle. Even first-generation rights require
positive obligations (e.g., independent judiciary for fair trial).
- Overlaps exist: some rights can belong to multiple categories (e.g., labour unions, environment).
- Equality, non-discrimination, and non-arbitrary interference remain essential across all
generations.
pg. 4
