(29.9.2022)
International and European
Human Rights Law
Cases and Materials
Prof. Koen Lemmens
Prof. Paul Lemmens
2022-2023
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, (Oct. 2021)
CONCEPT OF HUMAN RIGHTS
1. Fundamental rights
A. Common characteristics
- Protection of individual against abuse of authority (the state).
- Rooted in human dignity.
- H.R.Cttee., 15 July 2002, Wackenheim v. France, no. 854/1999. (1)
- dwarf tossing became popular in France, mayors can intervene in order to protect
public order/safety
- so mayor says: it’s a violation of human dignity, it would be logical that the
organizors appeal, because their attraction is cancelled (economic loss)
- but it was Wackenheim (dwarf) himself who appealed: “who are you to decide what
a violation of human dignity is for me?”
- mayor didn’t have a legal ground, but counsel of state accepted
- Wackenheim is left unsatisfied, so appeals to the UN human rights committee
- UN Human Right Committee didn’t see a problem – France could decide not to
allow such activities
- The point: Wackenheim said it was part of his own dignity to decide how he makes
his mind/living
- à It doesn’t matter what the majority says (eg. sex workers)
- Eg. Pommelien could decide whether she likes the image she used for a commercial
(it’s her autonomy, dignity) – although ethical commission thought it was sexist
- In between ‘human dignity’ and ‘a concrete list of human rights’, we need
philosophers, not lawyers
B. Categories of human rights
1. Individual rights and freedoms
a. Freedoms and procedural rights (“1st generation”): civil and political
i. = traditional human rights
ii. Historical °: Medieval charters
1. But aren’t automatically a protection of human rights
2. PROBLEM: specific protections for specific categories of citizens
3. The rights they give are very specific, not enough protection
4. eg magna charta: militaries are given more rights than ordinary
people
5. main feature of these charters: rights given by the authorities,
conceptually they can take them back
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, iii. Historical: French and American revolution: kind of starting point of
human rights
1. rights inherent to human being, given to everyone because you are
a human being and member of a political society
iv. Conceptual: rights that essentially say to the authorities: stay away
(afweerrechten)
1. No budgetarian impact
v. Obligation of result
vi. Judges simply have to decide: did the government intervene or not?
b. Participation rights (“2nd generation”): economic, social and cultural
i. Historical °: 1st generation rights weren’t enough, more for the rich people
1. Eg. freedom of expression: if you can’t read or write, it’s useless
ii. Conceptual: these rights form claims on government to act
1. Budgetarian impact
iii. Obligation/matter of means (effort) instead of result
iv. Judges: did the government do enough? = more difficult! (‘enough’ =
politicial assessment)
v. Eg. undertake steps to provide medical care
vi. Eg. schooling, housing system
c. BUT the differences between 1st & 2nd can’t be overestimated:
i. States do have positive obligations in the 1st generation rights: eg. the right
to life: idea that states will refrain from using lethal violence; right to a fair
trial
ii. States do have obligations in the 2nd generation rights to ‘not do something’:
eg. don’t discriminate
2. Collective rights (“3rd generation”): solidarity rights (rights to peace, development,
environmental protection)
à List of human rights are the result of historical revolutions
à interplay between 1st and 2nd generation rights: main violator of HRs is supposed to be
the main protector of HRs (the authority)
We hope that states protect fundamental rights of citizens, but what if those states don’t
respect their constitution?
C. Are all human rights “fundamental” rights (>< ordinary rights)?
Cf. Universal Declaration of Human Rights (1948).
Further developments
Need for a “quality control” (Philip Alston)
à Sometimes we exaggerate, we claim too quick that rights are HR’s, so maybe we need
a ‘quality control’
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, By calling everything a violation of human rights, there is a risk that a real violation of the
human rights will pass unnoticed or will be considered as just one of the many.
à Distinction between fundamental and ordinary rights: the weight of a fundamental right
(human right, constitutional right) related to the scrutiny of judges: whenever there’s and
ordinary right that conflicts another right = cost-benefit calculus
<-> when it’s abt a fundamental right ≠ cost-benefit calculus à you have to give more
weight to the fundamental right
à extra weight to it in balancing exercise, when it conflicts with another, judges will have
a stricter scrutiny in the balancing exercise
D. Holders of fundamental rights
- Individuals
In most conventions it says “all individuals…”
No matter your status, without any distinction!
Exception: political rights (eg. right to vote: priority for people with certain
nationality)
- Private entities
NGO’s, companies, associations… can also claim HRs (eg. freedom of
expression;
but not all: eg. not right to not be tortured)
- Collectivities
Eg. traditional communities, minority protection when it comes to
languages…
Eg: actions about climate change “acting on behalf of future generations”
E. Bearers of duty to respect fundamental rights (who has to respect HRs?)
- State
- All branches of the state: legislator, administrative, executive, judiciary
- It matters if authorities or co-citizens do it since I can only sue a state (not
a co-citizen) before ECHR Strasbourg
- eg. right to life: under the ECHR: only an obligation for the state to protect
you so it does matter if police officer or your neighbour kills you
but possible that there was no sufficient action of the state (eg. no legislation
forbidding your neighbour for his behaviour)
- Private individuals and private entities
1. “Horizontal application” of human rights provisions; horizontal
exemples:
a. ECtHR, 13 July 2004, Pla and Puncernau v. Andorra, ECHR,
2004-VIII.
b. ECtHR, 16 December 2008, Khurshid Mustafa and Tarzibachi
v. Sweden.
Housing associations don’t want their lessee to install those
satellite
(but freedom of expression, right to receive information???)
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