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(29.9.2021)International and European
Human Rights Law
Cases and Materials
Prof. Koen Lemmens
1
,CHAPTER 1: CONCEPT OF HUMAN RIGHTS
1. Fundamental rights
What we commonly call human rights is understood in various ways.
Until today, there is not a comprehensive theory concerning fundamental rights. Sometimes we
cannot explain why some rights are excluded.
We have to be aware of the shortcomings of a blackletter approach!
Why some rights are human rights can sometimes be explained by philosophical reasons.
Lawyers and judges are fueled by philosophical debates. This explains why they sometimes change
their view.
A. Common characteristics
We know more or less what we are talking about, but the conceptions are not so clear.
1. Protection of individual against abuse of authority = the classic theory
a. HR are there to limit the power of public authorities (= limit the powers of state)
§ = limitation of state sovereignity.
b. Related to the idea of tule of law: states have to follow the rule of law
i. Not the rule of men
2. Human dignity. à became popular after WWII
a. Very famous because it was incorporated in the german constitution. In 1993 also in
Belgian law
b. CASE: H.R.Cttee., 15 July 2002, Wackenheim v. France, no. 854/1999.
§ It was an attraction to throw dwarfs. They needed a permit so they went to the
municipality.
§ Case goes to the council of state and Wackenheim loses the case and goes to
the HR committee of the UN. The point: it made such a big impression on the
French.
BUT: it can mean everything and nothing at the same time. --> Wachenheim illustrated this!
Many of the crimes committed were lawful: they behaved according to Nazi-law --> so there the notion
of rule of law becomes problematic
A way to overcome this lancune is to refer to human dignity
'You should have known that it violated human dignity'
HD-story can help to soften positive law or there is a lancune, yes but there is human dignity
BUT: It sounds great but we don't know what it is exactly
To frame the problem: As an academic Martens said: “HD is adding confusion to the discussion, it is far from
helpful. But as a judge I was sometimes so happy that we had HD before I was without argument and i felt the
law was unfair and violating HR, i was happy to refer to HD.”
2
,We are using concepts that are very open-ended. It will be up to them to give content to it.
They do not exclude each other, they are related.
ð They limit the powers of those in power. They grant privileges.
§
HR treaties protect certain categories of people and it is incomplete.
- French and American revolution: happening at the same time.
Inspired by the same philosophers.
§ For the first time: we see a document using the term 'HR' (droit de l'homme).
Term comes from an American thinker. Citizens are questioning the power of
the ..
How come that a person (King), a ruler has the right to impose legislation, rules on us citizens? Why do we
accept that? Are there limits to what rulers can do? Where do they get there powers from? --> discussions on
democracy, on what are the limits?
They make a distinction: rights as a 'man' and rights as a citizen
We are not living alone, we are people living together with others. To what extend can we enjoy are freedom
against others?
Community = a reality we cannot rule out
B. Categories of human rights
1. Individual rights and freedoms
a. Freedoms and procedural rights (“1st generation”) : civil and political
i. WHEN: 19th century
ii. All the constitutions imitate a catalogue of HR.
iii. Seen as: stay-away rights: stay away public authorities. I am a king in my own
house.
= development of the minimalist state (nachtwakerstaat). The state does limited things.
State is a bad actor
b. Participation rights (“2nd generation”) : economic, social and cultural
i. Intervention of states is the duty to provide and take care
ii. Progressive realization: it is a commitment of making the effort. They engage to
take steps to obtain certain things.
iii. The state becomes a partner to help the realization of those rights (directly of
indirectly)
2. Collective rights (“3rd generation”) : solidarity rights
a. Ex. Right to peace, right to development etc.
b. Further and further from the classic legal idea of what a right is. It shows us the success
of the terminology of fundamental rights, HR.
Evolution: constitutional rights à first generation rights à second generation rights à third generation rights
à international HR
3
, A lot of discussion among lawyers etc.: you should not think in terms of categorization.
Pedagogically speaking: still value in making the distinction
Conceptionally speaking: there is a certain distinction
ð Fundamental rights are a whole and interrelated.
ð Conceptual differences between these 3 generation rights.
o Not black or white. More differences when it comes to second generation rights.
C. Are all human rights “fundamental” rights?
Cf. Universal Declaration of Human Rights (1948).
- Further developments: once you recognize a right as a human rights issue, you cannot go back
to considering it a few years later as a non-human right
o But there always come new human rights
Some people tend to elaborate the list of human rights. It depends on where you live
Ø Ex. Art 8 ECHR: freedom of privacy human behaviour became a human right
Ø Ex. Scottish idea human body is innocent, because it is a matter of expression
But the more you broaden the scope of rights, the less protection of human rights
- Need for a “quality control” (Philip Alston): in the end, everything is in conflict with human
rights
Ø Ex. labour: you cannot wear old clothes to work, but if the man wants to wear that, he cannot
express himself and it is in conflict with the human rights, but the worker is property of his work
and this is in conflict with the right on property you cannot choose how you want that the
people are dressed in your property
D. Holders of fundamental rights
- Individuals: all human beings, no further conditions, also undocumented people
Ø ex. Art. 1 ECHR
- Private entities
- Collectivities
E. Bearers of duty to respect fundamental rights
- State (legislators, governments, judges, lower entities, …)
- Private individuals and private entities
1. “Horizontal application” of human rights provisions
4
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