International and European human rights law
Chapter I. General introduction
I Introduction
1.Problem of definition
- Everybody talks about human rights, but what do we mean by human rights?
“Rights that all persons have by virtue of their (belonging to) humanity”
o A typical textbook answer but does not tell us much more about what exactly those HR are,
how they operate, wat their nature is and what grounds them
Different problems
o Unclear if some rights are human rights and what it really means
o Human rights evolve over time and space
Eg. Are same sex marriages a human right?
50 years ago: NO => in 20 years from now: YES
Not a clear and general accepted idea about same sex marriages
but if human rights are basic rights, shouldn’t they be universal in time and space?
Hard to define human rights in abstract term (discussion between philosophy and law)
-Leave reflection on what human rights should be to the philosophers => then human rights are:
rights you find in human rights treaties
But why is it then that some rights have that special status and are found in human rights
treaties and
other rights don’t?
To see why some rights are found in treaties, we need to look at it from an historical
perspective: look at human rights as historical rights rights that were created at a certain
moment and evolved in a certain way because of history
II What they do
, - Two of the most often advanced goals of HR are: 1) the protection of citizens against arbitrary State
power and
2) the protection of the human dignity
1. Temper power (1st function)
The very basis in the modern understanding of HR
o Premodern times: no protection of HR; there was a different understanding the Enlightment
thinking: the law is a man’s business = the law is a very personal understanding
Hugo de Groot (Grotius): “We should consider the law as if God does not exist”
that is the fundamental revolution because then it becomes clear that everything we
know about the law, the state power... is not a matter of God, but it’s us
mankind is at the basis of those rights, so it’s conventional
but if there’s no divinity, it means that it’s us so then why would I obey to you?
Then the state power becomes challenged
what are the limits of those powers? Human rights are minimal safeguards against
abuse of power by the authorities =>That’s what constitutional and human rights still
do today: in a way, they limit rather than rule out possibilities for public authorities to
intervene in the personal freedom of citizens
2.Protect human dignity (2nd function)
Controversial idea
Human dignity gained importance after WWII because: 1) there’s an ongoing bioethical revolution
that forces us to reflect on what it means to be “human” and 2) there’s the “human rights
revolution” since WWIO which has put the idea of human dignity at the forefront ( cf. art. 1 of the
German post-World War II Constitution) set an example for other post WWII constitutions and
for other international human rights texts in this view fundamental and human rights are
rooted in human dignity
human dignity was a key concept to criticize legal positivism
o E.g. Nazi-regime: in defense they argue that they applied the law and that they were coherent
in applying the rules that at that time were applicable so you can’t judge me with legal norms
that were not in force when I was acting in abstract this is a valid way of reason, but we can
also feel that you cannot push that to its extremes, you could consider that this was
unacceptable behavior, but on what accounts? Human dignity
Human dignity is not unproblematic because the question is “whose dignity” is referred to and,
maybe more importantly, “who decides what dignity is” illustration:
a. Wackenheim v. France (Human Rights Committee, 15 july 2002)
-Facts
In a French municipality, Morsang-sur-Orge, the local authorities refused to deliver a permit for
the organization of a dwarf-tossing event (=people could throw the dwarfs and the one who
could throw him the furthest won the competition)
Mr. Wackenheim (the dwarf itself) and the producing companies contested the refusals
-Court
The Conseil d’Etat agreed with the mayor and upheld the prohibition, arguing that the dwarf tossing
violated human dignity and that human dignity is an element of public order
appeals to the European Commission of Human Rights and the UN Human Rights Committee were
not successful
, This case reveals two conflicting interpretations of human dignity:
1.The French Council of State may have adhered to a conventional, majoritarian view of dignity
2.Yet, Mr. Wackenheim found this approach paternalistic: he argued that choosing one’s profession is
a quintessential element of human dignity so barring him from exercising the profession of his choice,
would then be denying his dignity
The Wackenheim case has become the symbol of how difficult it is, in law, to use the concept of
dignity
The underlying conflict of interpretation applies as well to more common societal debates:
e.g. Prostitution
Some countries forbid it, some allow it but if a person freely decides to become a professional sex
worker, perhaps that is the expression of human dignity even though what a moral majority
thinks, namely that sex work is a violation of the dignity of women
So is prostitution per se an attack on human dignity? Or is it rather a violation of human dignity to
not allow a person to provide sexual services as a profession?
e.g. The industry of advertising ( cf. Pommeline, Temptation Island): the discussion on sexism in public
advertising
• Is it an attack on women’s dignity or is it a violation of the right of models, who should be allowed to be
part of any advertising campaign they are asked for?
So human dignity is an argument that is extremely convincing, because you can win a discussion by
saying something is a violation of human dignity, because the other party must define human dignity to
show there is a violation, but on the other hand we have to be aware that human dignity can easily be
used by a moral majority to project its own morality into it and then use it to sanction all other
understandings of human dignity
Paul Martens (law professor, lawyer): “ as an academic I’m against human dignity, but as a judge I’ve been
many times so happy that there was human dignity, because I was asked to express some legal provisions”
HR can be used as an ultimum remedium to combat inhuman legislation ( when you don’t have other
arguments, the violation of HR can be used as an argument)
III Features
1. Absolute
- = there are no higher norms in the legal order
- Wrong understanding: = there are no limits, they always apply unrestrictedly wrong understanding
because there are very few HR that are absolute so most rights can be restricted, either on the basis of
an explicit provision allowing for this, or on the basis of implicitly accepted limitations
- E.g. prohibition of slavery; right not to be tortured are absolute rights but e.g. the right to life is not
absolute!
2. Universal (?)
- = global and timeless
- Distinction between conceptional (= they should be universal) and realistic approach (= are they really
applying everywhere and all over time) rights we know consider to be HR were not considered as
such e.g. 20 years ago so what does universal mean? HR are universal, but maybe for some others it’s
not (e.g. criticizing government is universal, but what about e.g. pornography? )
- Contested idea
, 3. Inalienable (?)
- = Individual cannot be deprived from their fundamental rights but doesn’t mean that HR cannot be, in
certain contexts, to certain extents, be suspended, conditioned or restricted (e.g. prisoners are deprived
from their freedom; political rights can be restricted on national status) + individuals can wave their
fundamental rights (= under certain circumstances, they can renounce the protection of their
fundamental rights: e.g. confidentiality clauses in contracts are restrictions on freedom of expression,
accepting cookies is accepting interferences with data protection, participating in a reality television
show is accepting a limitation on privacy protection
You cannot do away with the core of the protection of HR, but you can make agreements on
the limits of it so it’s a matter of informed consent
o E.g. you can have a labour agreement for an indeterminate time but it cannot be a lifelong
agreement because it would be doing away with your personal freedom
4. Indivisible
- = all HR are a whole, they interconnected, are related, linked to each other and you cannot split them
up in categories of more important and less important HR so no category is more important than
another (cf. infra)
IV History of Rights and Generations
Chapter I. General introduction
I Introduction
1.Problem of definition
- Everybody talks about human rights, but what do we mean by human rights?
“Rights that all persons have by virtue of their (belonging to) humanity”
o A typical textbook answer but does not tell us much more about what exactly those HR are,
how they operate, wat their nature is and what grounds them
Different problems
o Unclear if some rights are human rights and what it really means
o Human rights evolve over time and space
Eg. Are same sex marriages a human right?
50 years ago: NO => in 20 years from now: YES
Not a clear and general accepted idea about same sex marriages
but if human rights are basic rights, shouldn’t they be universal in time and space?
Hard to define human rights in abstract term (discussion between philosophy and law)
-Leave reflection on what human rights should be to the philosophers => then human rights are:
rights you find in human rights treaties
But why is it then that some rights have that special status and are found in human rights
treaties and
other rights don’t?
To see why some rights are found in treaties, we need to look at it from an historical
perspective: look at human rights as historical rights rights that were created at a certain
moment and evolved in a certain way because of history
II What they do
, - Two of the most often advanced goals of HR are: 1) the protection of citizens against arbitrary State
power and
2) the protection of the human dignity
1. Temper power (1st function)
The very basis in the modern understanding of HR
o Premodern times: no protection of HR; there was a different understanding the Enlightment
thinking: the law is a man’s business = the law is a very personal understanding
Hugo de Groot (Grotius): “We should consider the law as if God does not exist”
that is the fundamental revolution because then it becomes clear that everything we
know about the law, the state power... is not a matter of God, but it’s us
mankind is at the basis of those rights, so it’s conventional
but if there’s no divinity, it means that it’s us so then why would I obey to you?
Then the state power becomes challenged
what are the limits of those powers? Human rights are minimal safeguards against
abuse of power by the authorities =>That’s what constitutional and human rights still
do today: in a way, they limit rather than rule out possibilities for public authorities to
intervene in the personal freedom of citizens
2.Protect human dignity (2nd function)
Controversial idea
Human dignity gained importance after WWII because: 1) there’s an ongoing bioethical revolution
that forces us to reflect on what it means to be “human” and 2) there’s the “human rights
revolution” since WWIO which has put the idea of human dignity at the forefront ( cf. art. 1 of the
German post-World War II Constitution) set an example for other post WWII constitutions and
for other international human rights texts in this view fundamental and human rights are
rooted in human dignity
human dignity was a key concept to criticize legal positivism
o E.g. Nazi-regime: in defense they argue that they applied the law and that they were coherent
in applying the rules that at that time were applicable so you can’t judge me with legal norms
that were not in force when I was acting in abstract this is a valid way of reason, but we can
also feel that you cannot push that to its extremes, you could consider that this was
unacceptable behavior, but on what accounts? Human dignity
Human dignity is not unproblematic because the question is “whose dignity” is referred to and,
maybe more importantly, “who decides what dignity is” illustration:
a. Wackenheim v. France (Human Rights Committee, 15 july 2002)
-Facts
In a French municipality, Morsang-sur-Orge, the local authorities refused to deliver a permit for
the organization of a dwarf-tossing event (=people could throw the dwarfs and the one who
could throw him the furthest won the competition)
Mr. Wackenheim (the dwarf itself) and the producing companies contested the refusals
-Court
The Conseil d’Etat agreed with the mayor and upheld the prohibition, arguing that the dwarf tossing
violated human dignity and that human dignity is an element of public order
appeals to the European Commission of Human Rights and the UN Human Rights Committee were
not successful
, This case reveals two conflicting interpretations of human dignity:
1.The French Council of State may have adhered to a conventional, majoritarian view of dignity
2.Yet, Mr. Wackenheim found this approach paternalistic: he argued that choosing one’s profession is
a quintessential element of human dignity so barring him from exercising the profession of his choice,
would then be denying his dignity
The Wackenheim case has become the symbol of how difficult it is, in law, to use the concept of
dignity
The underlying conflict of interpretation applies as well to more common societal debates:
e.g. Prostitution
Some countries forbid it, some allow it but if a person freely decides to become a professional sex
worker, perhaps that is the expression of human dignity even though what a moral majority
thinks, namely that sex work is a violation of the dignity of women
So is prostitution per se an attack on human dignity? Or is it rather a violation of human dignity to
not allow a person to provide sexual services as a profession?
e.g. The industry of advertising ( cf. Pommeline, Temptation Island): the discussion on sexism in public
advertising
• Is it an attack on women’s dignity or is it a violation of the right of models, who should be allowed to be
part of any advertising campaign they are asked for?
So human dignity is an argument that is extremely convincing, because you can win a discussion by
saying something is a violation of human dignity, because the other party must define human dignity to
show there is a violation, but on the other hand we have to be aware that human dignity can easily be
used by a moral majority to project its own morality into it and then use it to sanction all other
understandings of human dignity
Paul Martens (law professor, lawyer): “ as an academic I’m against human dignity, but as a judge I’ve been
many times so happy that there was human dignity, because I was asked to express some legal provisions”
HR can be used as an ultimum remedium to combat inhuman legislation ( when you don’t have other
arguments, the violation of HR can be used as an argument)
III Features
1. Absolute
- = there are no higher norms in the legal order
- Wrong understanding: = there are no limits, they always apply unrestrictedly wrong understanding
because there are very few HR that are absolute so most rights can be restricted, either on the basis of
an explicit provision allowing for this, or on the basis of implicitly accepted limitations
- E.g. prohibition of slavery; right not to be tortured are absolute rights but e.g. the right to life is not
absolute!
2. Universal (?)
- = global and timeless
- Distinction between conceptional (= they should be universal) and realistic approach (= are they really
applying everywhere and all over time) rights we know consider to be HR were not considered as
such e.g. 20 years ago so what does universal mean? HR are universal, but maybe for some others it’s
not (e.g. criticizing government is universal, but what about e.g. pornography? )
- Contested idea
, 3. Inalienable (?)
- = Individual cannot be deprived from their fundamental rights but doesn’t mean that HR cannot be, in
certain contexts, to certain extents, be suspended, conditioned or restricted (e.g. prisoners are deprived
from their freedom; political rights can be restricted on national status) + individuals can wave their
fundamental rights (= under certain circumstances, they can renounce the protection of their
fundamental rights: e.g. confidentiality clauses in contracts are restrictions on freedom of expression,
accepting cookies is accepting interferences with data protection, participating in a reality television
show is accepting a limitation on privacy protection
You cannot do away with the core of the protection of HR, but you can make agreements on
the limits of it so it’s a matter of informed consent
o E.g. you can have a labour agreement for an indeterminate time but it cannot be a lifelong
agreement because it would be doing away with your personal freedom
4. Indivisible
- = all HR are a whole, they interconnected, are related, linked to each other and you cannot split them
up in categories of more important and less important HR so no category is more important than
another (cf. infra)
IV History of Rights and Generations
