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Summary International and European Human Rights Law
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Summary of all lessons in the course International and European Human Rights Law
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International & European HumanRights law
I. Concept of Human Rights
1. Fundamental rights
A. Common characteristics
- human rights is a very strong narrative (it expands to all fields in life)
- 2 major ideas about what human rights do:
1. Protection of individual against abuse of authority
- oldest idea but most important
- that’s where human rights is related to the idea of constitutionalism
2. Human dignity
- controversial idea
- hard to find a definition for human dignity
- Wackenheim v. France (Human Rights Committee, 15 july 2002) (see book p. 6)
- facts:
- tradition at local fairs of “dwarf tossing” as an attraction: people could throw the
dwarfs and the one who could throw him the furthest won the competition
- now in France you need a permission to do everything and the mayor said no to
this attraction and used as an argument that is was a violation of the human
dignity (laughing with people with a disease)
- Mr. Wackenheim (the artist) didn’t agree: he has to right to choose his
profession just because of the existence of human dignity
- court:
- the Conseil d’Etat agreed with the mayor
- Strasburg Court: case was inadmissible for an administrative reason
- Committee of political and civil rights: there was a different treatment but based
on an objective criterium the fact that other similar activities (ex. prostitute)
were not forbidden is not an argument to see a violation of the treaty
- we say that it is against our human dignity
- so you basically offer a protection for the moral majority
- ex. if moral majority thinks prostitutes need to be illegal, it must be forbidden by a state
- we use human dignity a lot
- Belgium: after the incorporation of art 23 in the constitution
- international: after WOII
- why?? because its almost always a winning argument
1
,- disadvantage: gives room for interpretation to judges (if politicians don’t agree they’ll have to get
rid of the vague concepts
B. Are all human rights “fundamental” rights?
Universal Declaration of Human Rights (1948)
- human rights keep expanding (ex. now is the right to a healthy environment a human right)
- existing rights get a scope that goes far beyond the traditional meaning
Further developments – Need for a “quality control”
- because of the expanding there is a discussion that we need to reduce it to ‘core human rights’
- need of a quality control to find the real rights to fit in the scope of human rights:
- the judges need to ask themselves: is that really a fundamental human right issue or is
this an issue which is not so fundamental?
- they need to do this because it’s hard to come back at a decision and say that something
is suddenly not a human right anymore
- discussion:
- need of a priority or a hierarchy
- you can’t make a distinguish between human rights
- not a clear view of what the core human rights are the core identity of every person is
individual (ex. for some people the rules on how to dress are not important but for punks this is a
main part of their identity)
C. Categories of human rights (historical dimension)
1. Individual rights and freedoms
a. Freedom and procedural rights (1st generation): civil and political
- for who?
- civil = rights for everyone
- political = rights reserved to citizens, nationals
- duty? public authorities can not interfere (ex. freedom of religion)
- see this the first time in the American-French Revolution
- introduced rights for everyone
- influenced a lot of national constitutions and the Belgian constitution (‘the Belgian and
their rights’)
- these are liberal rights
- criticism?
- in the last quarter of the 19th century
- by Marxism and social democrats
- they said: you should also pay attention to the material circumstances in which these
rights are exercised (ex. you can say there is freedom of expression or of press but what
does this mean for people who can’t read or write?)
b. Participation rights (2nd generation): economic, social & cultural
- rights focusing on the circumstances in which people live
- duty? positive obligations, they need to do things (ex. develop a health care system)
2
,- important economic language = there has to be budgetary reasons for what they do (material
arguments) progressive realisation
2. Collective rights (3rd generation): solidarity rights
- since the 80’s
- rights enjoyed by groups & not by individuals (ex. right to peace, to self-determination)
not a clear division anymore (now even the 1 st generation rights contain a
positive obligation according to Strasburg)
here are the 2nd generation the most important rights and in America it’s
the 1st generation
contradiction between 1st generation where we say that the state needs
to stay away and the 2nd generation where we ask the state to come back
D. Holders of fundamental rights
Individuals
- most outspoken and clear case
- precisely because you’re a part of humanity, you have those rights
- no condition in the European Convention: so all rights in there are for everyone
- different for political rights (ex. right to vote, right to become a public servant)
- now less important than it used to be
- distinction is not necessarily a discrimination
Private entities
- for corporations, associations, etc.
- no reason why you should exclude them
- some rights are hard to applicate on private entities (ex. prohibition on torture) and some are
easy to understand (ex. freedom of expression, right of property)
Collectivities
E. Bearers of duty to respect fundamental rights
State
- in de convention stands “the high contracting parties”
- each branch of public authority (legislative, government, judiciary, local authorities, …)
- the intern constitutional organization is never an excuse to justify non-respect for the convention
(ex. when the Flemish region is not respecting a provision, the claim will be brought to
Strasbourg against the Belgian state)
3
, Private individuals and private entities
1.”Horizontal application” of human rights provisions
- normally only state parties can be brought before the Strasbourg court (when you look at the
Convention of Human rights) but there is the horizontal effect to solve this
- idea: it’s not always public authorities who violate human rights, it’s rather some fellow citizens
against others
-
Example movie star
A famous movie star goes to the beach and paparazzi makes pictures of her and post this
in a paper = clash of the right of privacy & the freedom of expression:
1. privacy has priority in the state paparazzi goes to Strasbourg and says that the
state hasn’t protected the right of expression
2. expression has priority in the state the movie star goes to Strasbourg
sometimes it is very difficult to solve human rights cases because there is a huge clash
Example landlord
- if the candidates for an apartment have another skin colour, then the landlord can’t
deny because it would be racism
- if the candidates for an apartment are a couple of the same gender, then the landlord
can’t deny because it would be discrimination
but wat if the landlord is orthodox? No answer to this!
- does he have to rend and choose against his personal view?
- can the landlord personally choose which right has priority?
-
most important cases:
- Pla and Puncernau v. Andorra (ECHR, 13 july 2004)
- someone died and there is a discussion in the family on the fact that the testator
used the term ‘children’
- the court needed to decide whether this meant natural children, or also adopted
children and if this would be a violation of the non-discrimination procedure
- this is a case where the human rights interfere with the private will of an
individual
- Khurshid Mustafa & Tarzibachi v. Sweden (16 december 2008) = Swedish satellite dish
case
- there is an intern rule in Sweden which says that there are no satellite dishes
allowed in an apartment building
- but for immigrants this is the only way to receive Middle-Eastern channels
- this is a private horizontal relationship (landlord vs. tenant)
2. Corporate human rights responsibility
- new area of scholarship and rules that is still developing
- when you take a look on actual globalization and connected evolutions, you can see that there
are transnational companies (ex. Apple) who often have more power than states
- with this power they have the capacity to lobby and influence norms (ex. European car industry)
4
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