International and European Human Rights Law
Class 1
Exam:
Texts can be used
Cases and materials cannot be used
2 questions
o Open question: essay-question
o Case
Arguments of state
Arguments of applicant
Argue as the court
=> violation or not and why
References to cases!
1. Fundamental rights
Human rights are used in various contexts
Word is used by lawyers, activists, philosophers
o What there are talking about is not necessarily the same
Rights that are so fundamental to a human being that you can’t just do them away
o Not a helpful definition to see the difference with a ‘normal’ right
o No specific criteria to what is ‘fundamental’
It can be decided by politicians, but how do they decide?
They are in texts that claim the rights to be human rights
Questions on human rights are ethical questions
It goes beyond the law
The court can change their view because mentality’s change
o Judges take a different view at cases
o Ex. Family: a married man and woman family: gender
doesn’t matter and it doesn’t matter if they are married
The concept is clear, but the conceptions aren’t
Ex. Freedom of speech, right not to be tortured, right to housing, right to having a paid
holiday, right to life
2 theories
o They don’t exclude each other
o Classic theory
Human rights are there to limit powers of public authorities (states)
Limitation of state’s sovereignty
Protection against arbitrary use of state power
=> rule of law
o Second theory
Became popular after WOII: concept of human dignity
A. Common characteristics
2 theories
o They don’t exclude each other
o Classic theory
1
, Human rights are there to limit powers of public authorities (states)
Limitation of state’s sovereignty
Protection against arbitrary use of state power
=> rule of law
o Second theory
Became popular after WOII: concept of human dignity
Nazi’s: many of the crimes were lawful at that place and in that
moment
In Belgium: since 1993 enrolled in constitution
Part of social economic rights
You fill a lacune by referring to ‘human dignity’
It can soften positive law
Human dignity sounds great, but we don’t know what is in it
H.R.Cttee., 15 July 2002, Wackenheim v. France, no. 854/1999.
= dwarf tossing case
People are making fun of people with a genetic disease morally
unacceptable
The mayor refused the permit
o But there was no legal ground
o So he said it violated human dignity
But who’s human dignity?
Mr. Wackenheim (the dwarf) doesn’t agree
o It’s the way he makes money
o Human dignity is the right to choose one’s profession
Today: voluntary prostitution
Paul Mertens:
As an academic: human dignity can mean anything and is far from
being helpful
As a judge I was happy that we had human dignity, when it didn’t
have any arguments, but the law was violating basic rights
Historical development of human rights
o Typical enlightenment right
o Human rights is concept that is created by national traditions
o Medieval charters
They limit the power of those in power
They grant privileges to people living in the cities
Ex. Lowering taxes
They don’t protect people as citizens
They protect certain categories of people
o NO women’s rights or children’s rights
o Magna Carta (1215) (England)
The more power the parliament has, the less power the royals have
o Charter van Kortenberg (Belgium)
o French (1789) + American (1776) Revolution
Inspired by the same politicians
First document using the term ‘human right’
Le droit de l’homme
2
, o Men are born with these rights
o Et du citoyens
= member of political community
Community is a reality we can’t rule out
Citizens are questioning the power of the sovereign
o How come that the ruler has the right to impose legislation
on the citizens
Are there limits?
Shouldn’t we rule ourselves?
Where do they get their power from?
Bill of Rights
o Catalogue of fundamental rights, protecting citizens against
power of rulers
B. Categories of human rights
Individual rights and freedoms
o First generation rights: civil and political
The first rights to be considered human rights
Stay away-rights
The public authorities need to stay away from personal liberty
o They can’t intervene
o Minimal state aka nachtwakersstaat
The state does the minimal things: protection of
property, protection of personal integrity and
ministry of war
All the other things are for the private
sphere
Protection of home, privacy
o However poor the person may be, they are a king in their
home
Ex. Freedom of expression, freedom of religion, habeas corpus, fair trial,
protection of property
Criticism of Marxist thinkers, social-democrats..
What is the value of freedom of expression for deaf people?
o Material conditions: only rights to survive are necessary
Intervention is duty to provide social, cultural, economic rights
o Second generation rights: economic, social and cultural
Ex. Housing rights, right to education, right to rest, right to health care, right
to decent labour standard, right to paid holidays, right to have access to
culture
State becomes a partner that is there to help the realisation of those rights
Directly
o Providing the services
Indirectly
o Other people providing the services
o Ex. KULeuven is a private university, but has public funding
Collective rights
3
, o Third generation rights: solidarity
Ex. Right to peace, right to environment, right to development
Who can invoke the right? Where can you enforce it?
Evolution
o Constitutional rights (1st) (2nd) are added to that
after WOII: you can’t leave the protection of human rights to states only
If states fail to do what they are constitutionally obliged to, there should be a
place where you can go and complain
=> start of international rights
The nation cannot contradict itself: weak argument
Other wise we wouldn’t need a constitutional court
o It reviews legislation from the parliament against the
constitution or other higher norms + searches for violations
=> we need serious international cooperation (2 levels)
o Global level: UN
o Regional systems of human rights protection
o 2 things you need
Standards
Fora
Discussion
o You should not think in terms of categorisation
All human rights are interdependent: they are all equally important to
human beings you cannot prefer the one over the other
o Legally speaking there is a distinction
o Conceptionally speaking there is a certain distinction
One thing is saying to the public authorities to stay away
Did you intervene? Yes or no? => easy
Another thing is saying to public authorities that they are a partner
It’s progressive realisation: you can’t except a healthcare or
educational system overnight by a state
=> we should not overstate them
It’s a commitment of making an effort
o NOT the effort
Budgettarian constraint
Political decision
Positive obligations or duties
o Ex. Right to life, right to schooling, right to housing
o BUT they cannot discriminate
o Although fundamental rights are interdependent, there are criticism but there are
differences, not highlighting them it would make it much more difficult rights why 1st
generation rights are less a matter of discussion, the differences are more outspoken
with 2nd generation rights. We are all social democrats, states have a role to play in
a socially corrected free marked, the state can intervene. It’s a European vision on
the topic, think about Obama-care, in the VS it’s much more contested. The topic is
more discussable than the fact of torture for example.
C. Are all human rights “fundamental” rights?
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