A. Human Rights
1. General introduction
1.1. Introduction
1.1.1. Problem of definition
What are human rights?
o Student’s answers:
Rights that belong to us, being part of mankind
Must be enforced
Protecting people from government
o Doesn’t give us an idea on the rights we are talking about
Definition should let us determine what rights are human rights…
Problem: concept is not hard to find, but the conceptions are!
=> we don’t know what we are talking about exactly
Modest approach: consider them as historical rights
1.1.2. Historical rights
Then not think of theories
But think about the rights that are created at specific moment in time
o It went the way it went, because of history
A human right is a human right because it is in a treaty, or in the constitution…
=> more conceptual view on what human rights are
Why won’t we ever agree on what a HR is? Different views
SO better reflect why they exist
1.2. What they do
In general, 2 big explanations what HR do:
(1) Temper power
(2) Protect dignity
1.2.1. Temper power
Very basis to understand HR
Fundamental idea that the law is men’s business
o Hugo Grotius: we should think of the law as if God does not exist
o Fundamental revolutions: now it becomes clear that the power of someone is
not the will of God, but our will!
o So, we start thinking: why would I obey to you?
o Now power is challenged
Until where am I free to live like I will? There are the HR inevitable
1.2.2. Protect dignity
Especially after WWII
Why human dignity so important? Just applying the law is not enough. (ex. Nazi’s just
followed the law…)
Who’s against human dignity? Case Wackanheim v. France (dwarf tossing)
o Mayor didn’t want to give permission for this attraction
o Mayor can do this, but only for public health, safety or order. BUT person was
wearing protective gear…
o Appeal by Mr. Wackenheim: who do you think you are to judge about how I
make money? What u find human dignity, is just your view. I may have
another under-standing, it’s maybe an element of human dignity that I can
choose myself…
o French Council of State approved the decision, because they found it
disturbing public order
Other cases for example:
1
, o Public advertising: If Pommeline wants to present her boobs to brand herself,
why can’t I?
o What about prostitution? A service can be offered, but u can’t advertise
them??
Human dignity can easily be used by a moral majority to project its own morality and
then use it to sanction all other understandings of human dignity
Paul Martens quoted: “as an academic I am against human dignity, but as just I was
so happy it existed, it can be used as ultimum remedium to win a debate.”
-> a judge can say: “it’s against human dignity”
1.3. Features
1.3.1. Absolute
HR are absolute? What does that mean
There are no higher norms than HR-norms
But absolute as “there are no limits and they are always applicable?” That’s wrong!
o Ex: There are exceptions to the right on life
1.3.2. Universal (?)
Are HR universal?
o For sure it is an ambition to be universal
o Some rights are universal, but others aren’t!
We come back to this later
1.3.3. Inalienable (?)
The idea that u can’t give away your HR, but nuance!
Ex: U can’t speak all together at the same time, so who has a freedom of expression?
Ex: If u work in a business, there are rules on what u can and can’t say…
… many circumstances we agree to accept there are other people with rights. So
often we need to make transactions on our fundamental rights.
1.3.4. Indivisible
They are all related, linked to each other, u can’t split them up in categories
Why? See the history: they are kind off based on each other, they came in steps
1.4. History of rights and generations
How did the HR came to be? History/evolution in generations
We see HR as constitutional rights, because they are created there.
1.4.1. Civil and political rights (liberty/liberté)
Magna Carta as oldest charter
Everyone is born free and equal
Charters? First attempt to limit the power of the King’s
BUT Marxist criticize:
o U give rights to people, but actually u just say stay away to the government
o We can understand freedom of expression is important, but what’s the deal if
they can’t read or can’t afford books to read?
o There is more than only the idea public governance should stay away!
So that’s why the social, economic and cultural rights evolved
state is evil, we need protection
1.4.2. Social, economic and cultural rights (egalité)
States have positive obligations now / interfere
state should fund the public // new dimension
2
,1.4.3. Collective rights (fraternité)
Fundamental rights: not only individuals, but in group u also have rights
so, step by step things change
don’t overdo these categories but understand the impact of them!
1.5. Holders of human rights – bearers of human rights
1.5.1. Beyond human beings
Holders: who is given HR? Human beings, but can they go beyond?
Also, the rights of associations, collectivities…
Legal entities can have HR
o Ex: property rights.
o Ex: Commercials, isn’t that freedom of speech?
Some HR will not be used by other entities (ex: right to life, right to not be tortured)
Also going beyond anthropological meaning, maybe we should ground fundamental
rights to for example animals or nature! Irony, can a river make a claim? It shows that
the idea of core rights is going beyond the human aspect.
No problem that non-human beings invoke the human rights
Discussion is not much who is the holder. But against who can human rights be
invoked? Who is the bearer
1.5.2. Horizontalization
Bearer? Public authorities, the state (vertical relationship: poor u against the huge
state)
= traditional approach
But this view is not good! If the values are most important values, then why does it
matter by who these values are in danger?
o Ex: privacy should not only be respected by the State…
o Ex: Hotel-owners that are orthodox, can they refuse to give a room to gays?
Clinch of 2 human rights (free religion and anti-discrimination) -> horizontal
use HR also in horizontal relations (humans to humans)
Horizontalization is something that legal system is always been doing
o Many provisions can be considered as horizontal implementation of HR
o Ex: punishment if u rape someone = actually a protection of human integrity
Direct vs indirect horizontal effect:
o We have indirect horizontalization.
You can’t bring your neighbor to the court of Staatsburg because he is
not respecting your privacy. You can only bring the Belgium State to
the court, because he is allowing a third party (your neighbor) to break
into your human rights.
o Direct horizontalization: than you would be able to sue your neighbor
The horizontal application does not mean that non-authorities need to respect the HR
in the same way as an authority. Just accept the idea and strike the fundamental
rights of the bearers themselves. Find a balance! That’s why lots of government don’t
accept the direct horizontalization effect of the HR provisions.
1.5.3. Business and human rights
Some businesses have a very big economic power that goes farther than States. So,
do they also have an obligation to respect the HR (so be a bearer)? Yes
o Ex: environmental standards
We talk about ‘rights’, but aren’t we focusing too much on rights? Rights are selfish,
citizen only sees own interests and claims them to everyone (State and neighbor).
But shouldn’t there be also fundamental obligations?
o Problem: it’s not wrong, but legally spoken u can’t agree with this
3
, o Then u temper the temper of power…
o It doesn’t add something, but it can provoke bad thing. Too much risk!
2. A matter of international concern
2.1. Introduction
On the one hand: national legal orders should protect the HR, it’s primarily their task.
BUT what if they don’t? Then we have international protection
o International standards
o International places to claim your rights (courts)
Creation of a multilayered model:
o Constitutional (domestic)
o International system (two tracks: regional and global)
Regional: American, African or European system
Global: UN-protection
This came after WWII, but there were already some antecedents
2.2. Antecedents
2.2.1. Anti-slavery & slave trade
First example of international corporation in a HR issue (before WWII)
But took a century to get there
Nowadays the provision against Slavery is a norm of ius cogens
2.2.2. Diplomatic protection
This system is based on the idea that if people travel, the State has the right to act
with the other State to ask to stop the injustice or to ask for compensation
BUT it’s not a right if individuals, it’s a right of the State
2 questions that emerge:
o 1: A state wanting to use it’s right, must decide when he will act and when not
Which rights/interests need to be affected to start protecting?
Reminds us of the discussion on which right is a HR
o 2: Discussion on how to treat nationals and non-national people
Equal treatment of citizens vs non-citizens
2.2.3. Mandates – League of Nations
After WWI, the former colonies were either given independence, either decide some
of them where not ready to self-govern => these regions = ‘mandates’
Control given to 6 States (UK, France, Belgium, Australia, New Zealand and Japan)
o Belgium; Rwanda and Burundi
o Those 6 states had to report to the LoN on how they exercised their
mandates.
=> starting point of ‘State-report’
Idea: reporting was a sort of accountability
2.2.4. Fair labour standards – ILO
Improving working conditions of people
ILO is still active (international HR)
2.2.5. Minority protection
Again in era of WWI, in Woodrow Wilson era
o US president believed in self-determination and minority protection
o If they make treaties, include protection
Importance to protect, especially for central Europe
Important: the system allowed for minorities to go to the Secretary General of the LoN
4
1. General introduction
1.1. Introduction
1.1.1. Problem of definition
What are human rights?
o Student’s answers:
Rights that belong to us, being part of mankind
Must be enforced
Protecting people from government
o Doesn’t give us an idea on the rights we are talking about
Definition should let us determine what rights are human rights…
Problem: concept is not hard to find, but the conceptions are!
=> we don’t know what we are talking about exactly
Modest approach: consider them as historical rights
1.1.2. Historical rights
Then not think of theories
But think about the rights that are created at specific moment in time
o It went the way it went, because of history
A human right is a human right because it is in a treaty, or in the constitution…
=> more conceptual view on what human rights are
Why won’t we ever agree on what a HR is? Different views
SO better reflect why they exist
1.2. What they do
In general, 2 big explanations what HR do:
(1) Temper power
(2) Protect dignity
1.2.1. Temper power
Very basis to understand HR
Fundamental idea that the law is men’s business
o Hugo Grotius: we should think of the law as if God does not exist
o Fundamental revolutions: now it becomes clear that the power of someone is
not the will of God, but our will!
o So, we start thinking: why would I obey to you?
o Now power is challenged
Until where am I free to live like I will? There are the HR inevitable
1.2.2. Protect dignity
Especially after WWII
Why human dignity so important? Just applying the law is not enough. (ex. Nazi’s just
followed the law…)
Who’s against human dignity? Case Wackanheim v. France (dwarf tossing)
o Mayor didn’t want to give permission for this attraction
o Mayor can do this, but only for public health, safety or order. BUT person was
wearing protective gear…
o Appeal by Mr. Wackenheim: who do you think you are to judge about how I
make money? What u find human dignity, is just your view. I may have
another under-standing, it’s maybe an element of human dignity that I can
choose myself…
o French Council of State approved the decision, because they found it
disturbing public order
Other cases for example:
1
, o Public advertising: If Pommeline wants to present her boobs to brand herself,
why can’t I?
o What about prostitution? A service can be offered, but u can’t advertise
them??
Human dignity can easily be used by a moral majority to project its own morality and
then use it to sanction all other understandings of human dignity
Paul Martens quoted: “as an academic I am against human dignity, but as just I was
so happy it existed, it can be used as ultimum remedium to win a debate.”
-> a judge can say: “it’s against human dignity”
1.3. Features
1.3.1. Absolute
HR are absolute? What does that mean
There are no higher norms than HR-norms
But absolute as “there are no limits and they are always applicable?” That’s wrong!
o Ex: There are exceptions to the right on life
1.3.2. Universal (?)
Are HR universal?
o For sure it is an ambition to be universal
o Some rights are universal, but others aren’t!
We come back to this later
1.3.3. Inalienable (?)
The idea that u can’t give away your HR, but nuance!
Ex: U can’t speak all together at the same time, so who has a freedom of expression?
Ex: If u work in a business, there are rules on what u can and can’t say…
… many circumstances we agree to accept there are other people with rights. So
often we need to make transactions on our fundamental rights.
1.3.4. Indivisible
They are all related, linked to each other, u can’t split them up in categories
Why? See the history: they are kind off based on each other, they came in steps
1.4. History of rights and generations
How did the HR came to be? History/evolution in generations
We see HR as constitutional rights, because they are created there.
1.4.1. Civil and political rights (liberty/liberté)
Magna Carta as oldest charter
Everyone is born free and equal
Charters? First attempt to limit the power of the King’s
BUT Marxist criticize:
o U give rights to people, but actually u just say stay away to the government
o We can understand freedom of expression is important, but what’s the deal if
they can’t read or can’t afford books to read?
o There is more than only the idea public governance should stay away!
So that’s why the social, economic and cultural rights evolved
state is evil, we need protection
1.4.2. Social, economic and cultural rights (egalité)
States have positive obligations now / interfere
state should fund the public // new dimension
2
,1.4.3. Collective rights (fraternité)
Fundamental rights: not only individuals, but in group u also have rights
so, step by step things change
don’t overdo these categories but understand the impact of them!
1.5. Holders of human rights – bearers of human rights
1.5.1. Beyond human beings
Holders: who is given HR? Human beings, but can they go beyond?
Also, the rights of associations, collectivities…
Legal entities can have HR
o Ex: property rights.
o Ex: Commercials, isn’t that freedom of speech?
Some HR will not be used by other entities (ex: right to life, right to not be tortured)
Also going beyond anthropological meaning, maybe we should ground fundamental
rights to for example animals or nature! Irony, can a river make a claim? It shows that
the idea of core rights is going beyond the human aspect.
No problem that non-human beings invoke the human rights
Discussion is not much who is the holder. But against who can human rights be
invoked? Who is the bearer
1.5.2. Horizontalization
Bearer? Public authorities, the state (vertical relationship: poor u against the huge
state)
= traditional approach
But this view is not good! If the values are most important values, then why does it
matter by who these values are in danger?
o Ex: privacy should not only be respected by the State…
o Ex: Hotel-owners that are orthodox, can they refuse to give a room to gays?
Clinch of 2 human rights (free religion and anti-discrimination) -> horizontal
use HR also in horizontal relations (humans to humans)
Horizontalization is something that legal system is always been doing
o Many provisions can be considered as horizontal implementation of HR
o Ex: punishment if u rape someone = actually a protection of human integrity
Direct vs indirect horizontal effect:
o We have indirect horizontalization.
You can’t bring your neighbor to the court of Staatsburg because he is
not respecting your privacy. You can only bring the Belgium State to
the court, because he is allowing a third party (your neighbor) to break
into your human rights.
o Direct horizontalization: than you would be able to sue your neighbor
The horizontal application does not mean that non-authorities need to respect the HR
in the same way as an authority. Just accept the idea and strike the fundamental
rights of the bearers themselves. Find a balance! That’s why lots of government don’t
accept the direct horizontalization effect of the HR provisions.
1.5.3. Business and human rights
Some businesses have a very big economic power that goes farther than States. So,
do they also have an obligation to respect the HR (so be a bearer)? Yes
o Ex: environmental standards
We talk about ‘rights’, but aren’t we focusing too much on rights? Rights are selfish,
citizen only sees own interests and claims them to everyone (State and neighbor).
But shouldn’t there be also fundamental obligations?
o Problem: it’s not wrong, but legally spoken u can’t agree with this
3
, o Then u temper the temper of power…
o It doesn’t add something, but it can provoke bad thing. Too much risk!
2. A matter of international concern
2.1. Introduction
On the one hand: national legal orders should protect the HR, it’s primarily their task.
BUT what if they don’t? Then we have international protection
o International standards
o International places to claim your rights (courts)
Creation of a multilayered model:
o Constitutional (domestic)
o International system (two tracks: regional and global)
Regional: American, African or European system
Global: UN-protection
This came after WWII, but there were already some antecedents
2.2. Antecedents
2.2.1. Anti-slavery & slave trade
First example of international corporation in a HR issue (before WWII)
But took a century to get there
Nowadays the provision against Slavery is a norm of ius cogens
2.2.2. Diplomatic protection
This system is based on the idea that if people travel, the State has the right to act
with the other State to ask to stop the injustice or to ask for compensation
BUT it’s not a right if individuals, it’s a right of the State
2 questions that emerge:
o 1: A state wanting to use it’s right, must decide when he will act and when not
Which rights/interests need to be affected to start protecting?
Reminds us of the discussion on which right is a HR
o 2: Discussion on how to treat nationals and non-national people
Equal treatment of citizens vs non-citizens
2.2.3. Mandates – League of Nations
After WWI, the former colonies were either given independence, either decide some
of them where not ready to self-govern => these regions = ‘mandates’
Control given to 6 States (UK, France, Belgium, Australia, New Zealand and Japan)
o Belgium; Rwanda and Burundi
o Those 6 states had to report to the LoN on how they exercised their
mandates.
=> starting point of ‘State-report’
Idea: reporting was a sort of accountability
2.2.4. Fair labour standards – ILO
Improving working conditions of people
ILO is still active (international HR)
2.2.5. Minority protection
Again in era of WWI, in Woodrow Wilson era
o US president believed in self-determination and minority protection
o If they make treaties, include protection
Importance to protect, especially for central Europe
Important: the system allowed for minorities to go to the Secretary General of the LoN
4
