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Notities - International & European Human Rights Law

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  • Course
  • International and European Human Rights Law
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  • Katholieke Universiteit Leuven (KU Leuven)

This document contains my personal notes from the International and European Human Rights Law classes taught by Koen Lemmens in . Among other things, it can serve as a good basis for taking your own notes and it is also interesting to go through for the exam because of its many details and examples...

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Document information

  • October 11, 2023
  • 72
  • 2022/2023
  • Class notes
  • Koen lemmens
  • All classes

Subjects

  • rechten
  • kuleuven
  • bachelor
  • human rights
  • human rights law
  • notities
  • international and european human rights law

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  • Katholieke Universiteit Leuven (KU Leuven)
  • Rechten
  • International and European Human Rights Law
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INTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW
INLEIDEND – 29/9
Examen:
• 1 open vraag
• 1 Moot case
• International treaties, conventions and legal texts mag je meedoen
WHAT ARE HUMAN RIGHTS?
1) Set of rights related to our humanity as human beings à
2) Rooted in dignity
3) Protection against the state
à does not ad a lot on a practical level: what kind of rights?

First problem: high priority to fundamental rights: supreme rights, the very solid principles of the system…
<-> difficult to use these criteria to understand whether a right is fundamental or ordinary.
Ex: right of property: communists don’t agree on the dignity of it
Ex: annual paid holidays

à is human dignity a good criteria to distinct fundamental rights from ordinary rights? (doubts)

n WACKEHNHEIM CASE:
• Human zoo: attraction to watch people in cages
• Mayors do not have the competence to intervene based on public morality
• Mayors can intervene to protect public order (in the sense of public security)
• Mayor in France: “violation of human dignity”
• Mister Wackenheim (dwarf in zoo) appeals: person who is supposed to protected appeals (?!): who is
this mayor to decide whether or not his dignity is violated?
• Council of state = embarrassed: based on the ancient tradition of public order can’t intervene, no
legislation
• Human rights’ committee: Mayor of local authorities could decide to forbid the human zoo
à if human rights are aimed at the protection of the individual against public authorities, against majorities à
human dignity = weak concept? à majority misuse against minorities?
à mayor expressed a common understanding of human dignity, backed by a moral majority, BUT imposed this
on mister Wackenheim, who wants to choose how he makes his mind.

n SEX WORKERS: if they decide themselves to do sex work, who are others to say that this is a violation
of their human dignity?

n COMMERCIAL WITH POMMELINE (temptation island)
• Commercial = sexist?
• Can’t Pommeline decide for herself how to create an image of/portray herself? Decide about her own
dignity

After WOII: concept of human dignity became more important (German constitution)
• Shaky argument
• Judges are sometimes happy to use this concept as a last resort (ultimum remedium)

Belgian constitution: almost not referred to human dignity
à as soon as it is adopted in the constitution, it explodes


1

,Position of professor K. Lemmens to the concept of human rights:
• It is up to philosophers to define the concept, we need philosophers
• More difficult to define it as a lawyer: lawyer is not capable to argue that a right stands or stands not
on human dignity

What are human rights?
= rights that are enlisted in the human rights treaty
<-> general conceptual framework

Criticism: if anything is a human right, then human rights violation is trivial
Equality control: are we sure that whatever we think is a worldwide idea, to turn that in a human right?


HUMAN RIGHTS ARE THE RESULT OF HISTORICAL REVOLUTIONS

3 generations of rights:
1) Civil & political
2) Economic, social, cultural
3) Solidarity rights (more modern/collective rights)

90ties: no real distinction between human rights anymore

In a pedagogical view: distinction is still valuable


FIRST GENERATION
First question about first generation rights: did the authority intervene?
• Biproducts of modern time
• Magna carta 1215: first human rights?
• Charter of Kortenberg: my home is my castle à in your house you are entitled to do what you want
• French revolution (droits de l’homme): rights based on the fact that you are a human being and part of
a political system
• American revolution: all men are born equal
• Idea of limiting public authority

Belgian constitution = leading model of that time of classic liberalism
• Containing constitutional freedoms
• Criticism: from communist/social democrats/enlightened liberals
= enlisted rights are protecting bourgeois rights. What does it mean to protect the freedom of
expression if they can’t right/read? Right of property without property? What does the right of
religion means of you are hungry?
à if you’re daily struggle to survive occupies you all the time à rights = luxurious goods
à rights remain void



SECOND GENERATION



CONCEPTUAL DIFFERENCE:

First generation: aim = keeping the government away
= matter of result




2

,<-> second generation: sometimes you need the government to do something.
à budgetary impact: medical care, education system, housing system, …
à social welfare idea has a budgetary impact
= Matter of means
• Did the government do enough (ex: climate case)

Comparison first vs second generation of rights: example of ‘the Belgian student’
à inevitable tension and interplay between first and second generation rights
à main violator of human rights are also supposed to be the protector of human rights



THIRD GENERATION
= collective rights (Right to peace, right to development, right to environmental protection, … )
Questions
• Who can claim?
• Where to claim?
• Who can enforce it?



CLASS 5 – 20/10/2022

3 main organisations dealing with human rights issues on the European Continent
1. Council of Europe
2. EU
3. Organization for security and … in Europe


1. COUNCIL OF EUROPE

Permanent confusion between council of Europe & European Union
• European Union = Koen Lenaerts, … (smaller Europe)
• Bigger Europe: council of Europe (46 European countries)

European Union treaty texts vs European convention on Human Rights à don’t confuse them!
• EU & ECHR both based in Luxemburg => confusing
• Similar historic background:
• deep reflection that started during WOII, focused on ‘how are we going to rebuild the contintent’;
‘how are we going to avoid that tragedies such as this war are going to happen again?’
• Already during the war people started to think about it
§ Altiero Spinelli
§ Winston Churchill: speech at Zurich university talking about the need of a European
cooperation system
2 ways to avoid tragedies as WOII:
1. Cultural issues
• Council of Europe: importance of culture, values, democracy, human rights… (softer things)
2. trade, market place
• European Union
• Bringing people together: if you create a market, people will have an economic interest à whuy
then would you go to war
• Steel & coal
• Output legitimacy: it will work, it will bring prosperity and peace
ð Market oriented integration


3

, Idea council of Europe:
• Not supranationalism, but intergovernmentalism
• Fairly low impact, hadn’t it been for the European Convention on Human Rights (masterpiece of the
council of Europe!)
• ECHR proves to be an incredible powerful human rights document for the continent

Book recommendation: Marco Duranti: ‘The Conservative Human Rights revolutions’
à analysis of the roots of the convention: convention is the outcome of a conservative revolution
• After WOII: many governments were centered-left
• Those governments were trying to set up national welfare-states (second generations human rights)
• These rights impose duties on governments à who’s going to pay for this?
• Conservatives, right-winged people, traditional Catholics: wanted a kind of ‘ceiling’, a limit: this is what
we’re going to accept from national governments, but we won’t go further. The convention was
meant to be a stop on national governments.
• Gap: regional level: right-winged people and conservatives saw that there was place for a convention,
and later on left-winged people joined
à wonderful compliment to what is generally believed or said about the convention (criticism)
• Fascinating: it sets limits to the powers of governments: written by right-wingers to limit the action of
left-wingers; but when left-wingers are in charge, they use it to limit right-wingers à limits the power
of those in charge.
Criticism:
• Progressive document; activist court
• ex. David Cameron criticized this
• Putin: interpretation of the convention conflicted with the traditional values of the Russians

What’s important?
1. Catalog of human rights
2. Creating a venue/mechanism were people can complain
à control mechanism
• On the one hand: it sets rights
• On the other hand: it sets limits

Earlier:
• European commission on human rights
• European court of human rights
• Cf. Inter-american human rights mechanism: it has been replaced already since quite some time by
what is called the new court à European commission on human rights has been abolished, today you
only have a permanent european court of human rights (47 judges, elected ; not as representatives of
a state but elected on behalve of a state à each state has a right to propose 1 person as a judge)

• Most important and the biggest human right court in the world
• Paul Lemmens had been serving for 9 years (that’s the term)
• New judge 2 years ago: Frederik Krenk. (after a dutch judge, there follows a French-speaking judge;
unwritten rule in Belgium)

Update of catalog of human rights?

Update of Institutional machinery?
• Due to changes in the continent (political, geographical) à whenever there are changes to the
conventions, this is called protocols




4

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