!15/20! samenvatting human rights law

INTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW


HUMAN RIGHTS: General introduction

Introduction:

Definition: “human rights are rights that all persons have by virtue of their (belonging to) humanity”
 problem of definition: abstract concepts, they are extremely hard to define 1!
 Fundamental rights are those everyone is entitled to, simply be being human
- There is a whole range of rights, but which one are fundamental rights?
 Examples: right not to be tortured, freedom of speech, right to annual holiday
 Human rights are the rights that can be found in human rights treaties

The limits and borderlines are open to discussion …

Historical rights: new approach that has been defended  to think about the rights to be rights that
were created at a certain point of time, and that developed over time 2.

Function of human rights:

What do human rights do? (not mutually exclusive)
 Temper the power of the state: protection of citizens against arbitrary State power
- The basis, because human rights are very much created at the time of modernity
- Manifested quite early: e.g. Magna Carta (1215), Charter of Kortenberg, Blijde Inkomst
- Codex of Hammurabi: some provisions, but not comparable to a human rights treaty, no
systematic approach that was born in modern times
 Protect the dignity of all (protection of human dignity)  originated from French Revolution
- Two categories: rights on account of being a human  rights on account of being a
citizen member of a political community
- General catalogue: Bill of Rights, Déclaration des Droits de l’Homme et du Citoyen
 Before the French and American revolution, there were important texts like medieval
charters as first attempts to limit the power of the heads of state (authorities)
- Granted rights were constitutional, not international (only came up after WW II)
 Human rights as constitutional rights  rights against state authorities

Human dignity: the Wackenheim case (“dwarf tossing”): reveals conflicting interpretations  symbol
of how difficult it is, in law, to use the concept of dignity 3.

Argument of Wackenheim: “I create jobs for a category of people that have difficulties finding a job”,
and dwarfs deliberately decide to join the attraction  decision of the Court: not every
differentiation of treatment will necessarily constitute discrimination (e.g. prostitution).


1
After WO II, when the Universal Declaration of Human Rights was prepared by the UN, people all over the
world agreed that they do not agree  abstract concepts!
2
If we want to avoid discussion between lawyers and philosophers, we have to adopt a more modest approach
and consider human rights as historical rights: created at a certain moment in time and evolved over time.
3
Council of State (France) ó Mr. Wackenheim: he argued that barring him from exercising the profession of his
choise, would then be denying his dignity (human dignity ó freedom of profession).

,Criticism by Marxists: what is the use of giving people freedom of speech when they cannot read or
afford paper?  public authorities should do more, the state should fund public institutions 
otherwise, human rights are just a ‘bourgeois affair’.

New dimension to human rights issues  welfare state!

Features of human rights:

Features of human rights: absolute, universal (?), inalienable (?), indivisible
 Absolute character: human rights are the highest norm (not many human rights are absolute)
 Universal character: people enjoy human rights because of their humanity
 Unalienable character: individuals cannot be deprived of their fundamental rights
( although they can be suspended, conditioned of restricted)
 Indivisible character: all human rights are interconnected (no hierarchy)  axiomatic
statement, all human rights are whole, you cannot split them up in categories of importance

History and generations of rights:

History of rights:
1. Civil and political rights (examples: right to life, freedom of expression)
2. Social, economic and cultural rights (examples: right to health care, right to education)
3. Collective rights (examples: right to peace, right to development)

Generations of rights:
 1st generation rights: focus on negative obligations of State (e.g. freedom of speech/religion)
- Sometimes also a positive duty (e.g. in right to a fair trial, state must install courts)
- Fairly easy to bring before the courts
- Three conditions for interference:
1. They must have a legal basis
2. They must pursue a legitimate aim
3. Relationship of proportionality between the aim pursued and the restriction
 2nd generation rights: imply positive measures (e.g. right to housing, school, healthcare)
- Initiative of the socialists and Marxists
- More difficult to bring before the courts (progressive realisation + often budgetary)
 More expensive: state must take action to create the environment in which citizens
can exercise these rights, which requires a structural approach
- Can also impose a negative duty: e.g. duty not to discriminate in the right to housing
- Can be very stretched out: e.g. does the right to medical care imply a right to food?
 3rd generation rights: focus on positive duties and active intervention by public authorities 
they have an outspoken international dimension (beyond State – citizen relationship) 4

Nuance in the distinction:
1. The idea that first – generation rights impose negative duties, does not imply that States have
no positive duties (for example: right to a fair trial5)


2. Aspects of different generations may overlap (for example: right to establish labour unions 6)


4
For example: right to peace, self – development, self – determination, a healthy environment, …
5
The right can only be guaranteed if there exists an independent judiciary è States are obligated to establish a
judiciary that is fit and proper in this respect (positive obligation)

, 3. Second – generation rights also include aspects typical for first – generation rights 7

Holders of human rights:

Who is given human rights? Can they go beyond human beings? Also the rights of association,
collective institutions, …  terminology: more appropriate to use the term ‘fundamental rights’.

Are we giving human rights? Rights of nature? Who will be acting on behalf of nature?
What started as an idea of core rights of natural persons goes into the non – human areas …

Everyone holds human rights, there is no precondition: everyone within the State jurisdiction benefits
from these rights whether the person entered the state legally, does not matter!

Holders or bearers of human rights:
 Beyond human beings: private corporations, associations, collective organisations, …
- Human rights apply to private entities not because of the human nature of the subject,
but because of their fundamentality (e.g. freedom of expression for companies)
 Horizontalization: also in relationship between non – public actors 8  tendency to also use
human rights in horizontal relations (citizens among their selves)
- Direct horizontalization: by going to a judge (e.g. clash freedom of expression  privacy)
- Indirect horizontalization (ECHR): directed against the Belgian state because it has
allowed a third person to violate their human rights
 Business and human rights: corporate responsibility to respect human rights
- Bearers are developing a new field: business in human rights (especially transnational)
- Risk: it may become a tickling box – exercise, because it is all about reporting +
uncertainty that a company has the capacity to control the steps of the chain

Citizens can confront each other only indirectly (i.e. horizontally, citizen to state to citizen)!
 Individuals cannot be brought before the Court in Strasbourg, only states
 Criminal law is full of articles that can be considered applicable in horizontal relations
 State must protect individual against behaviour of other individuals (but, it is hard to judge
whether or not a state offered enough protection from an infraction by a 3 rd party)

Problem = if the matter is dealt with on a horizontal level, the rights of one individual will take the
upper hand over those of other individuals. A vertical perspective is much easier, because the state
will not invoke their human rights against an individual.

Human duties? Much will depend on which duties are enlisted: the duty to obey the law or to pay
taxes, is a symbolical exercise
 Little referencing to responsibilities (people having obligations) in treaties
 On one hand: obvious that rights and duties go hand in hand  not a conservative idea
 on the other hand: basic idea underpinning human right is about protecting humans
against the power of state, does it then make sense to impose the burden on citizens?
- Giving rights + taking them back ‘because you are under the obligation’

 The State already has monopoly on state violence and taxes, what else do they need?


6
For example, the right to establish labour unions è first – generation (as aspect of freedom of association) or
second – generation (as part of labour rights?)
7
Equality and non – discrimination, the obligation of non – arbitrary interferences, …
8
For instance, prohibition of theft can be considered as protection of right to property in a horizontal context.

, - Obligations for people (e.g. in the African system) are in a way reformulations of
trivialities (e.g. obligation to pay taxes), so there is not much added value
 Uneven relation between the right holders  public authorities  in this context it may fire
back to give duties to people (abuse is possible)
- Example: new Hungarian constitution = “children have the obligation to take care of their
parents”  idea is morally fine, but is it a good idea to put it down in a constitution?
 A government that is low on cash, could consider lower pensions, when people
protest, the government can send them to their children first

Human rights: a matter of international concern

Creation of a multilayered model:
 Constitutional (domestic)
 International system (two tracks: regional and global): organisations such as the African
Union, the Council of Europe, …

The UN came into view after WW II, before that, human rights were just a constitutional matter (not
an international one), but national sovereignty stood in the way of protecting human rights. Human
rights interplay at 3 levels: international level  regional level  national level.

Antecedents:

International human rights protection was developed in the 20 th century because people were
deprived from their human rights protection. Before WO II the protection was according to
constitutional law, after the war, the protection became an international matter.

Before WO II, there were also some examples of international human rights protection:
1. Anti – slavery & slave trade  first seeds of the international human rights movement
- Denmark was the first state in the world to ban slavery in 1903
- Nowadays, the provision against slavery is considered a norm of jus cogens
 Jus cogens = a norm that has to be respected and applied by all states
2. Diplomatic protection  another precursor of international human rights
- Based on idea that if people travel to other states, their interests can be put into danger
 Protection applies to persons who are foreigners in the event their rights are
violated, not to nationals of that State + the State is free to exercise its right or not
 Opened the right for the state to intervene and to ask to stop the injustice (not a
right of individuals, but the right of the state)
- Idea of equal treatment of citizens and non – citizens (anti – discrimination)
3. Mandates (League of Nations)  aftermath of World War I
- States who were considered not to be ready for self – government  “mandate”
 Mandate holders: respecting the essential basic rights of the inhabitants
- Starting point of state reports: matter of accountability of international community
4. Fair labour standards  by the International Labour Organisation (ILO)
- Ensure social peace through the development of fair working conditions
 ILO = a pioneer in the protection of fundamental socio – economic rights
5. Minority protection  specific treaties in the aftermath of World War I (e.g. rights of cultural
minorities to protect their language, …)


6. International humanitarian law  some rules of human rights law and humanitarian law
overlap, but most of them differ (e.g. law of combatans)