lesnotities HRL + cases and questions

HRL Britt Koeklenberg


INLEIDING – CONCEPT HUMAN RIGHTS
DEEL 1: TERMINOLOGY

Fundamental Rights and Freedoms and basic Rights mostly refers to consitutional rights, but in the
end it is mostly the same as those human rights protected by international treaties.

Why fundamental?

 1/ Protecting the individual against arbitrary power State
o After WOII we have to respect individual rights against the arbitrary state
 Before WO II: law was interstate
o Evolution:
 1/ protecting against acts by the authorities
 Protecting you against what the state is doing.
 Ex: police-officer is slapping you in the face <> mother slaps her kid
in the face (different case – is this a HR issue? Depends!)
 2/ protecting against failure to act by the authorities
 When the state should do something to protect you, but they
haven’t already.
 Controversial: some of the people say we have gone too far
 3/ Protection against third parties
o Even we in Belgium need basic human rights law to be protected against arbitrary
power.
 2/ Protecting human dignity
o Everyone should be able to live a life in human dignity
 HR protects the most vulnerable people  it is not always popular to defend
HR, bc we are protecting the most vulnerable
 Ex: prisoners...
 Even if they have done something wrong in the past, they are still
people
o Everyone is sometimes vulnerable: we are all human-beings
 No one is in every point in his timeline a very strong person, you always have
times in life when you need protection against arbitrary power, the state, but
also third parties (husband, employer…)
o Protecting human dignity when you’re vulnerable
 This is why we have HR in our liberal democracies!

Liberal democracy (3 pillars)!: How do they interact?

We have to defend liberal democracy

 Rule of Law (= rechtsstaat)
o It is used and abused all the time.
o = everyone can enforce his/her rights against another and against the state
 Everyone is bound by the law, even the authorities
 No one is above the law <> dictators
 You have rights that you should be able to bring before court.
 The state must respect and protect the law.
 Democracy
o = everyone gets one vote and the majority decides  majority rules
 Definition is too simple, because we must take the minorities into account.

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,HRL Britt Koeklenberg

 Human Rights
o We need human rights because the majority can trump your basic rights, and a lot of
people have difficulties with it.
 Protects rule of law thru fair trial (right to go to court).
 Protects democracy
 Protects minorities, the vulnerable
 Protects against arbitrary power
 We need those 3!
o If you read the ECHR, you see that an interference is only allowed if it is necessary, if
the democratic society tolerates it.
Duties

 Human rights is also about duties.
 If we talk about duties, you don’t need to mention them in all the HR treaties, bc often HR is
about proportionality.
o You need to balance the rights that are at stake  part of the proportionality test
 One-sided emphasis on rights?
o Rights and duties
 E.g. african chapter, chapter II (1986)
 Art. 27: duties towards family, society, State…
 Art. 29: duty to preserve harmonious development of family, to
serve national community…
o Criticism?
 You are using the idea of duties, just to make protection of rights hallow.

DEEL 2: LEGAL SOURCES
Positive law
 Legal sources: general principles, customary law, treaties, constitutions

Natural law: human dignity
 Others point out that we don’t need positive law.
 Being human suffices to have fundamental rights
 Article 1 UDHR: “All human beings are born free and equal in dignity and rights. […]”
 Human dignity is also recognized in various treaties (cf. Art. 1 EU-Charter)
o For instance the EU charter
o Our constitution (art. 23 GW)

The fact that our system, focus on the European system, is not always the only way to look at law, is
something that you will see if you compare the inter-American court of HR system and the European
court of Human Right system.
 In the inter-American system: many judgements refer to the universal juridical conscious.
o When we have to interpret a certain HR, we don’t have to look at state practice and
all those treaties, we have to look to the universal juridical conscious  tendency to
natural law
o The fact that our system is not always the only way to look at law.
 In the European system (European court of Human Rights): European consensus
o The European systems goes all the time about the European consensus  the will of
states is very important in our system
o Positive lawyers


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,HRL Britt Koeklenberg

 Is there something in between? “Law-making treaties”: common interest (instead of pure
national State interest), no reciprocity
o Instead of pure national state interest, the whole community has an interest in
protecting those rights.
 We have a common interest in the protection of individuals – one state could
argue against another state that you are not protecting HR = interstate-cases
 For the European Court of HR you can have interstate-cases (ex
Ukrain vs Russia)
o The idea: the individuals should be able rely on international
law, to protect their laws.
 Interpretation of laws may lead to new rules: what
does it exactly mean?
  Judges can interpret open laws

“Human dignity”: ambigious concept

 Human dignity can be used by both parties!
o You are using the same basic context, underlinging HR, what is then the right
solution?
 Dwarf tossing – Wackenheim: Human Rights Committee
o Wackenheim went to all kinds of festivities, and you can trow him into the air for
some money. He liked his job, but one mayor said it is against human-dignity and he
prohibited it. He said you cannot use people as an object, they are subjects and for
that we have to defend the morality that everyone is equal, and sometimes (like in
this case), we have to protect the people against himself. Wackenheim lost the case
in the end.
o Autonomy/selfdetermination (Anglo-Saxon) or ‘moral’ public order people should
not be used as an object (Kant)?
o 7.4. (seq.) “The Committee considers that the State party has demonstrated, in the
present case, that the ban on dwarf tossing as practised by the author did not
constitute an abusive measure but was necessary in order to protect public order,
which brings into play considerations of human dignity that are compatible with
the objectives of the Covenant. The Committee accordingly concludes that the
differentiation between the author and the persons to whom the ban ordered by the
State party does not apply was based on objective and reasonable grounds.”
 The HR committee in 7.4: here there is an objective and reasonable
justification. Why? Dwarfs are the only persons capable of being thrown
(objective), it was not discriminatory in its purpose (ban was not to
discriminate people, but to protect them) and lastly it was not an abusive
measure, but necessary in order to protect objectives of the covenant.
 Wackenheim lost the case in the end.
o Opinion professor
 1/ Only dwarfs can be thrown in the air?
 No, bc also children can be thrown in the air
 2/ Not discriminatory in purpose
 The intent of the discrimination is not relevant, what counts is that
you are being discriminated, without reasonable grounds.




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,HRL Britt Koeklenberg

 3/ Necessary in order to protect public order, which brings into play
considerations of human dignity that are compatible with the objectives of
the Covenant
 Is this saying that you should ban dwarf tossing?
o It has a lot of similarities like other topics (ex. prostitution).
 The dwarf should be able to do with his body what he wants <>
others would say we have to protect them against themselves
 The prof thinks that the opinion is not well constructed.
 They should explain more why there is no discrimination!!!
o Should the authorities according to the HRC/this case, prohibit dwarf tossing because
it is contrary to human dignity?
 The prof thinks that they not said to prohibit it, they said in the professors
opinion: as a state you advanced a certain version of human dignity and
those considerations are compatible with the objectives of the covenant.
 You can, as being France, say well we want to protect human dignity
and that is the way we see it.
 The prof will say, if this topic came up in Belgium, that isn’t
prohibitted in Belgium. We would say we have another idea of
human diginity, and for us human dignity means autonomy.
 Others could argue, no you’re not right, we don’ agree with you’re
reading of this case. You can read that it was necessary in order to
protect the public order. If it is necessary to protect public order,
then you have to prohibit it.
 Human dignity according to Nussbaum
o M. Nussbaum (“Frontiers of Justice”) identifies a list of central human capabilities
that are implicit in the idea of life worth of human dignity.
More than functionings.
They support our powers of practical reason and choice, and have a special
importance in making any choice of a way of life possible. Capabilities should be
pursued for each and every person and there is a threshold level of each capability,
beneath which it is held that truly human functioning is not available to citizens.
o This approach goes very much into the direction of emphasizing autonomy.
 IACtHR, Yakye Axa v. Paraguay
o Inter-American court of HR
o Right to life (open norm): living a life in dignity
State must generate “minimum living conditions that are compatible with the dignity
of the human person” and may not create “conditions that hinder or impede it” (§68)
“Duty to take positive, concrete measures geared toward fulfillment of the right to a
decent life, especially in the case of persons who are vulnerable and at risk” (§68)
 ECtHR, Haas v. Switzerland
o Right to die with dignity?
o Case about a person who wants an dignified suicide and he wants specific
medications for it. He can get it according to the law if some psychiatrist allows it,
but not one single doctor gives it to him, and he says that is a violation of the right to
(life and) privacy (art. 8 ECHR).
 §52 – legal question
 §53 – Is there an obligation for States according to the ECtHR to adopt
measures to facilitate the act of suicide with dignity?
 §54 – duty to protect vulnerability
 §55 – no consensus


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,HRL Britt Koeklenberg

 §58 – we should have a regulation to prevent abuse, preventing against
arbitrary power  that is why the state is requiring an authorization by a
psychiatrist.
 §54: freely and with fully understanding of what is involved
 Guarantee against abuse
 §61 – no violation of the right to privacy
 Those guaranties are proportional.
o The court says: ‘even assuming’  so they are not saying it
exists
o  if you read this case it doesn’t solve whether it is acceptable or if it could even be
a positive obligation  this case gives us some indications on how you should deal
with this type of situations, but it is not really solving the legal question
 Kant: because of the fact that we are human beings and that we’re in doubt with reason, we
should be treated as human beings
o That means we can’t do whatever we want, we cannot dispose of our bodies freely.
o This is what we call the moral public order.
o He has a catchphrase: we are an end in itself and we should not be used as the
means to an end.
o He laid the foundation of the idea that every human being is equal.
o We have different concepts of human dignity.
 Most of us agree that human dignity is a foundation of HRL.
o Important to think what is the importance of human dignity.
o What is the practical importance?
 ECtHR, camara v. Belgium
o Human dignity and the rule of law
o Are we doing a good job at the rule of law in Belgium?
 Belgium was convicted for its policy towards refugees  rule of law is not
always respected in Belgium
 Government did not respect order by the national judge. Judge said you
need to give housing to him and they were waiting for 4 months and the
moment they went to the ECtHR (§8) they did something.
 ECtHR: said that it is a bit strange, you’re not executing national
judgement and when they go to the ECtHR and there is a provisional
order, than you do something
 Refugee crisis  no housing for young men
 Not executing provisional housing orders ordered by judges: rule of law in
danger
 4 months is way too long (§17)
 If you have to live for 4 months on the streets, that is not acceptable,
especially if you have rights and the court ordered it. It is different
for every case  combination rule of law and human dignity
 Excuses for the 4 months (§10)
 §11 – it was only after the complaint was logged by the ECtHR
 §12 – execution was complex, bc you have the saturation of the
housing
o There was an increase of more than 42% in 2021 (Ukraine v
Russia war).
 The court says that the rule of law is paramount (van het hoogste belang) for
article 6, §1 of the convention - §15
 §16 – A systemic failure/deficiency
 It is not a one way shot, of that occurred just by accident

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,HRL Britt Koeklenberg

 §18 – it is not due to the applicant’s behavior that it was not executed,
unanimously: a systematic violation of art. 6
 Non-execution of judicial housing order: How long is too long?
 §8
 Judicial decision was to protect human dignity!
 §17
o Belgium is not respecting national court orders, so the rule of law, meaning you have
rights, and you should be able to go to court to enforce them, the government is not
respecting it.
 The federal human right’s institute voiced its concern in the 2024 paper of
the rule of law in Belgium.
 We have 2200 provisional measures ordered by the ECtHR which are not
respected in asylum (asiel) cases and housing cases.
 11.000 judgments at national level who are not respected

DEEL 3: HISTORICAL PERSPECTIVE

Before W.W.II: fundamental rights where a national issue  other states had nothing to do with it

 Constitutions
 Customary law

After W.W.II: international perspective

 Universal Declaration Fundamental Rights 1948
 International Treaties

Three generations of HR (prof doesn’t like it):
1. Civil and political rights – blue
a. Freedom of speech, right to liberty, prohibition of torture…
2. Economic, social and cultural rights – red
a. Right to social security, labor rights…
3. Collective/soliditary rights – green
a. Right to peace, environment…

 Criticism on the three generations: Interdependent! Indivisible! (IACtHR, Yakye Axa)

 All those rights are fundamental rights, and it is important for human dignity, the prof
agrees.
o If it is a fundamental right, everyone needs to be capable to rely on the right and you
cannot separate them.
 It can’t be that you have freedom of speech, but no food.

Relativity:

 Cultural: Western
o We think that HR are universal, but other people think it’s cultural and typical
western.
 Social: Bourgeois
o HR protects who is vulnerable, but are they really doing what they say there doing?
 Bc poor people are not able to effort to go to court, thus theoreticaly they
are protected, but not in real life.

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,HRL Britt Koeklenberg


Treaties: first rights, but more and more effective enforcement mechanisms
 We first had treaties.
 Slowly we have more and more effective enforcement mechanisms, with the most effective
one the ECtHR, which is now questioned (legitimacy – see later on).

Humanization of the law (not only the will of States): objective law
 We want to protect people bc they are people and not bc of the interest of states.

And now?
 Only protecting individuals? Quid groups, legal persons, animals, nature…?
 Only against State authorities? Quid multinationals, supranational authorities…?

DEEL 4: NO HIERARCHY

There is no hierarchy in HR, bc you need every right, and you should be capable to enforce all HR to
live a life in full dignity. But there is a distinction between absolute and relative rights.

Absolute – relative rights  but all required to guarantee human dignity

 Absolute  no derogation possible
o No state interference, ex: no torture
o No justifications
 Relative  interference is possible, but must be justified
o Core rights = a core that should always be respected
o If you want to interfere in those rights, you need to have a law, a legitimate aim and
it should be proportional.
o Ex: I will limit your privacy
 You can see the distinction in the treaties; they have a limitation clause.
o ECHR: even in times of emergency some rights cannot be derogated, they’re always
absolute.
 Ex: right to life, art. 4 and 7, prohibition of torture

Criterion?

 Most fundamental/basic rights? (cf. “core rights”)
 See treaties:
o Limitation clause
 You can limit those rights, interfere with those rights
o Derogations in time of emergency (art. 15 ECHR)
 Ex. Covid 19
 Open norms, judge made norms




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,HRL Britt Koeklenberg




HOOFDSTUK 1 – UNIVERSAL PROTECTION (UN)
DEEL 1: UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR 1948)
Erosion of the UN (in the prof’s opinion) comes down to the idea that we should leave this
multilateral (tussen meerdere partijen/staten) world and come back to a world where it is one state
against another, and the strongest state imposes its will.
 This is what Trump is doing.
 Bart de Wever protects the multilateral world.

What is it?
 Resolution by the General Assembly of the UN
o Originally 48 countries declared then that they wanted to protect those rights.
 8 states did abstain
 Now: 192
o It is a declaration and not a treaty.

Legal value?
 Non-binding, but it has been used in a binding manner in some contexts.
o Some agree that its customary law.
o Even on national level you find some judges enforcing universal laws.
o But mostly considered to be not binding.
 Soft law

Enforcement mechanism?
 You can try to go to court, but it has no real enforcement mechanism, besides political ones.
 Art. 8 – rule of law

Civil-Political Rights and Economic, Social and Cultural Rights
 The 2 first generations of rights are in the first really important HR documents.

Read it at home! It can be an exam question!!!
 Art. 1-2: equality and the right of non-discrimination
 Art. 8: effective remedy
 …
 Art. 24: everyone has the right to rest and leisure (vrije tijd)
 …

DEEL 2: TREATIES

Declaration was the inspiration for the 9 Basic Human Rights Treaties
 general treaties
International Covenant on Civil and Political Rights (ICCPR, 1966)
 Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR-OP1,
1966)
 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at
the abolition of the death penalty (ICCPR-OP2, 1989)



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,HRL Britt Koeklenberg

International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966)
 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
(2008)

This was to have an enforcement mechanism, to make it possible for the people to complain.

 treaties on a specific topic
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979)
 Optional Protocol to the Convention on the Elimination of Discrimination Against Women
(CEDAW-OP, 1999)

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT,
1984)
 Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (CAT-OP, 2002)

Convention on the Rights of the Child (CRC, 1989)
 Optional protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography (OP-CRC-SC, 2000)
 Optional protocol to the Convention on the Rights of the Child on the involvement of
children in armed conflict (OP-CRC-AC, 2000)
 Optional protocol to the CRC to provide a communications procedure (2011)

International Convention on the Protection of the Rights of All Migrants Workers and Members of
Their Families (CMW, 1990)
 Not ratified in Belgium

International Convention for the Protection of All Persons from Enforced Disappearance (2006)

Convention on the Rights of Persons with Disabilities (2006)
 Optional protocol to the Convention on the Rights of Persons with Disabilities (2006)

Belgium had ratified every one of them, except the convention on migrant workers.
 So always check ratification status + entry into force
 https://treaties.un.org (or via www.ohchr.org)

DEEL 3: UNIVERSAL MECHANISMS
Exam question: would you prefer the ECtHR or prefer an UN mechanism? Explain why!

A. ‘treaty-based’: quasi-judicial
Treaty-based on the 9 treaties above.

Committees (e.g. Art. 28 ICCPR et seq.) with independent experts = quasi-judicial
 There is a HR committee with 18 members that you can go to, bc it has an individual
complaint.
 Almost like judges (independent), and those who are sitting there are not representing their
state.
 The mainstream view is that it’s not binding, it is not really a judgment, on the other hand,
they are interpreting legally binding treaties, so those are also binding views.


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, HRL Britt Koeklenberg

o Prof would say the mainstream approach is that they have a high authority but not
binding.
o <> judgements of ECtHR are binding

Treaty-specific!
 State reporting (e.g. Art. 40 ICCPR) –concluding observations about a state
o They all have a state reporting mechanism
o Every 2/3 years they’re drafting a report and they’re bundled together.
o Concluding observation = a state that has to submit, status quaestionis (huidge
stand van zaken), about how HR/that specific mechanism/treaty are doing and then
the committee will have a look at it and draw out concluding observations
 Individual complaints (e.g. Art. 1 First OP-ICCPR)
o Individual goes to the committees, he/she can only do so after exhaustion of
domestic remedies.
 First go to national courts.
 Initially you couldn’t do this, but art. 1
o Art. 5, §4 explains that the committee shall forward its views
 Example: Wackenheim  view of HR committee
 Inter-state complaints (e.g. Art. 41 ICCPR)
o A state may at any time declare that they recognize the competence of another
party/state, to file a complaint about another state.
o Those complaints are not so frequent, as the individual complaints, bc it has political
implications too.
 Inquiry procedure (e.g. Art. 20 CAT) (onderzoeksprocedure)
o The committee invite a state to come and have a look in cooperation of the state, it’s
a confidential procedure.
o In the end, after consultations, the committee might decide to include a summary of
the results of the proceedings in its annual report.
o Interesting if there is systematic torture
 Visits (e.g. Art. 1 OP-CAT)
o States can accept visits at any time by the committee by the prevention of torture.
o Strong mechanism, to make sure that allegations of torture can be rescourced.
 General Comments (gezaghebbende interpretaties ≠ bindend)
o = the committee is explaining in abstracto the meaning of the convention
 What is allowed, what is not?

Why would we choose non-binding mechanisms over binding ones?
 In Belgium, the right to individual petitions was recognized, but on a European level the right
to individual petition was not recognized, EU only knows general petitions/complaints.


B. charter-based’: political: Human Rights Council

Previously (-2006):
 Commission on Human Rights (organ of UN-ECOSOC)
o Criticism: politicized

Human Rights Council (2006):
Institutional
 Organ General Assembly – Genève (cf. Res. 60/251)


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