Human Rights Law
1. CONCEPT HUMAN RIGHTS
1.1. TERMINOLOGY
• Fundamental Rights and Freedoms (= fundamentele rechten en vrijheden)
• Basic Rights (= grondrechten)
• Human Rights (= mensenrechten)
Why fundamental?
1. Protecting the individual against arbitrary power State (willekeur van de overheid)
Evolution:
Acts by the authorities
o E.g. Police officer who slaps you in the face
Failure to act by the authorities
o When they should have done something (controversial)
o E.g. the authorities are not protecting us against climate change
Protection against third parties (most recent)
o E.g. Mother who slaps child in the face → the state should protect you against it
with a criminal law
2. Protecting human dignity (= menselijke waardigheid)
Idea: human rights protect the most vulnerable people (e.g. asylum seekers, prisoners)
Vulnerability against state (e.g. police) or third parties (e.g. lawyer, your husband)
Reason why we have human rights in our liberal democracy
Liberal democracy (3 pillars):
• Rule of law (rechtsstaat)
No one (including the state/authorities) is above the law – everybody is bound by the law
You should be able to enforce (afdwingen) your human rights in court
EXAM: give definition of rule of law
EXAM: Explain the relationship between the rule of law and democracy. Illustrate this
with cases we have seen.
• Democracy (democratie)
The majority rules – everyone has one voice and in the end the majority makes the laws
• Human Rights (mensenrechten)
To protect the vulnerable/the minorities
To protect against the majority rules
Some human rights are so fundamental that they can go against the will of the
majority (and therefore democracy) → protect the minority against the majority
EXAM: explain the connection between democracy and human rights
One-sided emphasis on rights?
• Rights and duties
We don’t only have rights, but we also have duties
Is there too much emphasis on rights and too little on the duties of the individual?
Some human rights treaties also mention obligations:
E.g. African Charter, chapter II (1986)
1
, o Art. 27: duties towards family, society, State…
o Art. 29: duty to preserve harmonious development of family, to serve national
community…
• Criticism: if you emphasize the duties too much, then the rights become illusionary
1.2. LEGAL SOURCES
There are two schools of thought on the basis of human rights:
• Positive law:
The legal sources:
General principles (=algemene rechtsbeginselen),
Customary law (= gewoonterecht),
Treaties (= Verdragen) and
Constitutions (= grondwetten)
Is there no legal source about it? Then you can’t invoke it.
Something is a human rights because the law says it is
• Natural law: Human Dignity
Being a human being suffices to have fundamental rights
= you are human so you have these rights (even if the law does not recognise them)
Art. 1 UDHR: “all human beings are born free and equal in dignity and rights.”
Also recognized in various treaties (cf. art. 1 EU-Charter)
“Universal juridical Conscience” (Inter-American Court of Human Rights)
Says we have to protect human dignity and that we are all equal
European Consensus (will of States) (European Court of Human Rights)
In between?: “Law-making treaties”: common interest (instead of pure national State
interest), no reciprocity
1.2.1. CONCEPTS OF HUMAN DIGNITY
“Human dignity” according to Wackenheim
Human Rights Committee, Wackenheim v. France: (dwarf throwing): “Human dignity” =
ambiguous concept (= dubbelzinnig concept)
• Dwarf tossing: (1) autonomy/selfdetermination (Anglo-Saxon) or (2) ‘moral’ public
order/people should not be used as an object (the mayor)
• Facts of the case:
This case was about ‘dwarf throwing’. Wackenheim was a man with dwarfism. At
parties, dwarf tossing could be done for a fee (vergoeding). The man wore protection
(helmet, bumpers). He was not in danger. As a dwarf, it is difficult to find work in
France, but dwarf tossing earns him money. He has a job, an income, and can thus
build his own life.
Discussion:
The mayor said that dwarf tossing was against human dignity, so he prohibited it.
He said you shouldn’t throw them in the air as an object.
Anglo-Saxon (the dwarf) said that in his view ‘human dignity’ is autonomy. He said
he doesn’t have the same job opportunities, but that this job gave him purpose. In
his view dignity is having a job and autonomy.
In this case, the state wanted to define and regulate the concept of "human dignity."
• Assessment by the Court:
2
, The court of first instance ruled that public order was not disturbed and therefore
there was no problem, and Wackenheim was allowed to continue performing his
duties. The mayor appealed, resulting in Wackenheim appealing to the Human Rights
Committee. Anglo-Saxon said this constitutes discrimination because this ban was
only for dwarfs, there wasn’t any prohibition for taller people.
The Human Rights Committee treated the case as a non-discrimination issue: is there
an objective and reasonable justification for this ban, which only applies to dwarves?
Ultimately, the committee ruled that the ban was not discriminatory because the
decision was based on reasonable and objective grounds.
Arguments of the comité:
1. Only dwarfs are able to being thrown (objective) → so a blank ban (= algemeen
verbod) is not necessary
2. The purpose of the ban was not discriminative (purpose to protect not to
discriminate)
3. It is not an abusive measure (it was necessary)
• What do you think about this arguments?
About the first argument (‘only dwarfs are able to being thrown’) → you can also throw
children in the air or put persons in a canon
About the second argument (‘It’s not discriminative in its purpose’) → the intend of
discrimination is not important, the unequal situation is enough
About the third argument (‘not an abusive measure’) → it could translate it to other
more common cases like prostitution
• Reservations about this matter (= bedenkingen bij de zaak)
The concept of "human dignity" is the same worldwide, so does this mean that every
country should ban dwarf tossing? Counterarguments:
No, states can also come up with other solutions.
The moral order also differs from state to state.
This case concerns public order, not just human dignity.
A distinction should actually be made between: (why different approaches in different
cases?)
Human dignity as self-protection → self-determination (Wackenheim)
Human dignity as protection of public order (France)
• Should the authorities according to the HRC prohibit dwarf tossing because it is contrary
to human dignity?
Prof: You should not prohibit it as a state – human dignity? → We can say as a state that
we have another view of dignity such as autonomy which means the dwarf can do
what he wants.
If you emphasise on the first part (it was necessary to protect public order) → then you
have to prohibit it
If you emphasise on the second part (the reading as human dignity) → than you can
use professor’s view.
• What to remember about this case?
The Human Rights Committee is not a court or tribunal. It does not issue binding
judgments, and its decisions are not enforceable. It does, however, have significant
influence.
EXAM: explain the legal value of a concept.
Human dignity according to Nussbaum
• 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 (= meer dan alleen de noodzakelijke functies)
3
, We all have a lot of capabilities → you should not do everything you are capable of (those
are functions) → but in order to do so, you need some capabilities (se has a list)
• They support our powers of practical reason and choice, and have a special importance in
making any choice of a way of life possible (goes in the direction of autonomy)
• 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
• Conclusion: this theory is about the autonomy of a human (be who you want to be)
Right of living a life in dignity (open norm):
IACtHR, Yakye Axa v. Paraguay (not in the reader): “Right to life” = living a life in dignity
• Case about: living a life in dignity (open norm) → used by the European Court especially in
cases about life and death
• Assessment of the case:
§68: 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”
Right to die with dignity
ECtHR, Haas v. Switzerland: Right to die with dignity?
• Question: Is there an obligation for States according to the ECtHR to adopt measures to
facilitate the act of suicide with dignity?
It is up to the state to regulate the moral public order, but is a dignified suicide part of
this? A trade-off between:
Autonomy: self-determination, the right to decide how and when to end life
Human dignity: protecting vulnerable people
• Facts of the case:
This case was about a person who wasn’t terminal ill but wanted to have a dignified
suicide. He uses his right to life and privacy (art. 8) to be able to end his life in dignity.
• Assessment by the Court:
§50: application of art. 8 ECHR: the concept of private life is a broad term, it includes
physical and psychological integrity of a person → you need to be able to make your
own choices
§54: duty to protect → you are in a vulnerable position and might change your mind
§57: In a state like Switzerland, it is easy to access assisted suicide, so there must be
sufficient corrective mechanisms to protect human dignity (e.g., psychiatrist's
permission required), but they must not go too far (§61)
§ 61: margin of appreciation is addressed
According to the ECtHR, national governments are better placed than the ECtHR
to assess whether human rights have been violated in this case
The Court states that Switzerland has a good regulation regarding suicide
§55: There is no real consensus among the Member States on such a sensitive
matter
o significant margin of appreciation for the Member States: they have policy
latitude to decide how they want to balance autonomy with the MW
§57: In a state like Switzerland, the average
• The essence: Even if a state has such a positive obligation, Switzerland has still fulfilled it,
since there is a dignified way to end life: euthanasia. The fact that Haas would need a
4
1. CONCEPT HUMAN RIGHTS
1.1. TERMINOLOGY
• Fundamental Rights and Freedoms (= fundamentele rechten en vrijheden)
• Basic Rights (= grondrechten)
• Human Rights (= mensenrechten)
Why fundamental?
1. Protecting the individual against arbitrary power State (willekeur van de overheid)
Evolution:
Acts by the authorities
o E.g. Police officer who slaps you in the face
Failure to act by the authorities
o When they should have done something (controversial)
o E.g. the authorities are not protecting us against climate change
Protection against third parties (most recent)
o E.g. Mother who slaps child in the face → the state should protect you against it
with a criminal law
2. Protecting human dignity (= menselijke waardigheid)
Idea: human rights protect the most vulnerable people (e.g. asylum seekers, prisoners)
Vulnerability against state (e.g. police) or third parties (e.g. lawyer, your husband)
Reason why we have human rights in our liberal democracy
Liberal democracy (3 pillars):
• Rule of law (rechtsstaat)
No one (including the state/authorities) is above the law – everybody is bound by the law
You should be able to enforce (afdwingen) your human rights in court
EXAM: give definition of rule of law
EXAM: Explain the relationship between the rule of law and democracy. Illustrate this
with cases we have seen.
• Democracy (democratie)
The majority rules – everyone has one voice and in the end the majority makes the laws
• Human Rights (mensenrechten)
To protect the vulnerable/the minorities
To protect against the majority rules
Some human rights are so fundamental that they can go against the will of the
majority (and therefore democracy) → protect the minority against the majority
EXAM: explain the connection between democracy and human rights
One-sided emphasis on rights?
• Rights and duties
We don’t only have rights, but we also have duties
Is there too much emphasis on rights and too little on the duties of the individual?
Some human rights treaties also mention obligations:
E.g. African Charter, chapter II (1986)
1
, o Art. 27: duties towards family, society, State…
o Art. 29: duty to preserve harmonious development of family, to serve national
community…
• Criticism: if you emphasize the duties too much, then the rights become illusionary
1.2. LEGAL SOURCES
There are two schools of thought on the basis of human rights:
• Positive law:
The legal sources:
General principles (=algemene rechtsbeginselen),
Customary law (= gewoonterecht),
Treaties (= Verdragen) and
Constitutions (= grondwetten)
Is there no legal source about it? Then you can’t invoke it.
Something is a human rights because the law says it is
• Natural law: Human Dignity
Being a human being suffices to have fundamental rights
= you are human so you have these rights (even if the law does not recognise them)
Art. 1 UDHR: “all human beings are born free and equal in dignity and rights.”
Also recognized in various treaties (cf. art. 1 EU-Charter)
“Universal juridical Conscience” (Inter-American Court of Human Rights)
Says we have to protect human dignity and that we are all equal
European Consensus (will of States) (European Court of Human Rights)
In between?: “Law-making treaties”: common interest (instead of pure national State
interest), no reciprocity
1.2.1. CONCEPTS OF HUMAN DIGNITY
“Human dignity” according to Wackenheim
Human Rights Committee, Wackenheim v. France: (dwarf throwing): “Human dignity” =
ambiguous concept (= dubbelzinnig concept)
• Dwarf tossing: (1) autonomy/selfdetermination (Anglo-Saxon) or (2) ‘moral’ public
order/people should not be used as an object (the mayor)
• Facts of the case:
This case was about ‘dwarf throwing’. Wackenheim was a man with dwarfism. At
parties, dwarf tossing could be done for a fee (vergoeding). The man wore protection
(helmet, bumpers). He was not in danger. As a dwarf, it is difficult to find work in
France, but dwarf tossing earns him money. He has a job, an income, and can thus
build his own life.
Discussion:
The mayor said that dwarf tossing was against human dignity, so he prohibited it.
He said you shouldn’t throw them in the air as an object.
Anglo-Saxon (the dwarf) said that in his view ‘human dignity’ is autonomy. He said
he doesn’t have the same job opportunities, but that this job gave him purpose. In
his view dignity is having a job and autonomy.
In this case, the state wanted to define and regulate the concept of "human dignity."
• Assessment by the Court:
2
, The court of first instance ruled that public order was not disturbed and therefore
there was no problem, and Wackenheim was allowed to continue performing his
duties. The mayor appealed, resulting in Wackenheim appealing to the Human Rights
Committee. Anglo-Saxon said this constitutes discrimination because this ban was
only for dwarfs, there wasn’t any prohibition for taller people.
The Human Rights Committee treated the case as a non-discrimination issue: is there
an objective and reasonable justification for this ban, which only applies to dwarves?
Ultimately, the committee ruled that the ban was not discriminatory because the
decision was based on reasonable and objective grounds.
Arguments of the comité:
1. Only dwarfs are able to being thrown (objective) → so a blank ban (= algemeen
verbod) is not necessary
2. The purpose of the ban was not discriminative (purpose to protect not to
discriminate)
3. It is not an abusive measure (it was necessary)
• What do you think about this arguments?
About the first argument (‘only dwarfs are able to being thrown’) → you can also throw
children in the air or put persons in a canon
About the second argument (‘It’s not discriminative in its purpose’) → the intend of
discrimination is not important, the unequal situation is enough
About the third argument (‘not an abusive measure’) → it could translate it to other
more common cases like prostitution
• Reservations about this matter (= bedenkingen bij de zaak)
The concept of "human dignity" is the same worldwide, so does this mean that every
country should ban dwarf tossing? Counterarguments:
No, states can also come up with other solutions.
The moral order also differs from state to state.
This case concerns public order, not just human dignity.
A distinction should actually be made between: (why different approaches in different
cases?)
Human dignity as self-protection → self-determination (Wackenheim)
Human dignity as protection of public order (France)
• Should the authorities according to the HRC prohibit dwarf tossing because it is contrary
to human dignity?
Prof: You should not prohibit it as a state – human dignity? → We can say as a state that
we have another view of dignity such as autonomy which means the dwarf can do
what he wants.
If you emphasise on the first part (it was necessary to protect public order) → then you
have to prohibit it
If you emphasise on the second part (the reading as human dignity) → than you can
use professor’s view.
• What to remember about this case?
The Human Rights Committee is not a court or tribunal. It does not issue binding
judgments, and its decisions are not enforceable. It does, however, have significant
influence.
EXAM: explain the legal value of a concept.
Human dignity according to Nussbaum
• 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 (= meer dan alleen de noodzakelijke functies)
3
, We all have a lot of capabilities → you should not do everything you are capable of (those
are functions) → but in order to do so, you need some capabilities (se has a list)
• They support our powers of practical reason and choice, and have a special importance in
making any choice of a way of life possible (goes in the direction of autonomy)
• 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
• Conclusion: this theory is about the autonomy of a human (be who you want to be)
Right of living a life in dignity (open norm):
IACtHR, Yakye Axa v. Paraguay (not in the reader): “Right to life” = living a life in dignity
• Case about: living a life in dignity (open norm) → used by the European Court especially in
cases about life and death
• Assessment of the case:
§68: 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”
Right to die with dignity
ECtHR, Haas v. Switzerland: Right to die with dignity?
• Question: Is there an obligation for States according to the ECtHR to adopt measures to
facilitate the act of suicide with dignity?
It is up to the state to regulate the moral public order, but is a dignified suicide part of
this? A trade-off between:
Autonomy: self-determination, the right to decide how and when to end life
Human dignity: protecting vulnerable people
• Facts of the case:
This case was about a person who wasn’t terminal ill but wanted to have a dignified
suicide. He uses his right to life and privacy (art. 8) to be able to end his life in dignity.
• Assessment by the Court:
§50: application of art. 8 ECHR: the concept of private life is a broad term, it includes
physical and psychological integrity of a person → you need to be able to make your
own choices
§54: duty to protect → you are in a vulnerable position and might change your mind
§57: In a state like Switzerland, it is easy to access assisted suicide, so there must be
sufficient corrective mechanisms to protect human dignity (e.g., psychiatrist's
permission required), but they must not go too far (§61)
§ 61: margin of appreciation is addressed
According to the ECtHR, national governments are better placed than the ECtHR
to assess whether human rights have been violated in this case
The Court states that Switzerland has a good regulation regarding suicide
§55: There is no real consensus among the Member States on such a sensitive
matter
o significant margin of appreciation for the Member States: they have policy
latitude to decide how they want to balance autonomy with the MW
§57: In a state like Switzerland, the average
• The essence: Even if a state has such a positive obligation, Switzerland has still fulfilled it,
since there is a dignified way to end life: euthanasia. The fact that Haas would need a
4
