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...
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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