HUMAN RIGHTS LAW
I.B CONCEPT HUMAN RIGHTS
1) TERMINOLOGY
Fundamental Rights and Freedoms rights that are so fundamental for everyone that you
should be able to have those rights
Basic Rights
Human Rights
Why fundamental?
o a) Protecting the individual against arbitrary power State
Evolution:
acts by the authorities authorities shouldn’t torture you
failure to act by the authorities the authorities are not protecting us
bv. against climate change
protection against third parties bv. when the prof is slapping you in the
face the state should protect you against that with criminal law
o Human rights are open norms bv. says not about slapping in the
face but what do they exactly mean? you need case law for
the interpretation discussions about that
o b) Protecting human dignity that everyone can live a life in dignity
vulnerability special care of vulnerable people there can be lots of reasons
why you cannot protect your rights bv. going to court
Liberal democracy (3 pillars) liberal (not political parties, fundamentele rechten en vrijheden
worden beschermd):
o a) Rule of Law
= states are also subjected to the law and the ability to enforce your rights by
going to court (balance of powers)
o b) Democracy
= looking for a majority, everyone participating in a political arena
Disadvantage: we need to protect it against abuse (therefore we need human
rights law), the minority is not convinced
o c) Human Rights
o Now: evolution in Belgium not respecting court orders
One-sided emphasis on rights? Are we focusing too much on rights =“I can enforce something”?
o Rights and duties e.g. African Charter, chapter II (1986)
Art. 27: duties towards family, society, State…
Art. 29: duty to preserve harmonious development of family, to serve national
community…
Criticism?
If you emphasize the duties too much, then the rights become
illusionary. Prof is convinced there are duties bv. art. 23 Gw. About social
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, rights. It’s all about balancing the rights and duties, the measures to be
taken
Poll: “To me human rights are”:
o Moral
o Very important
o …
2) LEGAL SOURCES
Positive law
o Legal sources: general principles, customary law, treaties, constitutions
Natural law: Human Dignity
o Being human suffices to have fundamental rights it is in the nature of things
o Article 1 UDHR (it is a declaration initially is soft law, not a treaty, but it is customary
law declared by states or a general principles (discussions about that)): “All human
beings are born free and equal in dignity and rights. […]”
o Also recognized in various treaties (cf. Art. 1 EU-Charter) “human dignity”
“Universal juridical Conscience” (Inter-American Court of Human Rights) the whole universe is
thinking that this should be the rights solution “this is hard law because ~ ” criticized
European Consensus (the will of States) (European Court of Human Rights) very criticized, but
important to interpret the open norms
In between?: “Law-making treaties” (= treaties making law, special category of treaties but what
does it exactly mean? Discussion, but for sure it is something different than other treaties): they
defend a common interest (instead of pure national State interest), no reciprocity bv. if the
Netherlands does not defend the rights does not mean that Belgium also should not do that
A. WACKENHEIM: HUMAN RIGHTS COMMITTEE
“Human dignity”: ambiguous concept
o Wat is it? PollEv.com/vannestefred223
(a) Self-determination to life a live the way I want
(b) Human should not be treated as an object (Kant) it is the same for
everyone
(a) + (b) Two most important approaches
(c) Other
Wackenheim (zie p. 1): Dwarf tossing (gooien)
o (a) autonomy/self-determination (Anglo-Saxon) or (b) ‘moral’ public order, people should
not be used as an object (Kant)?
(a) I can earn money for that, it is my human dignity at stake if you forbid this
(b) these people are not an object what view do we give if you can just throw
dwarfs?
o He went to court and said: The prohibition is tailored to dwarfs (large people can be
thrown), there is no violence, no rights to disturb the public order. My human dignity is
being able to get thrown in the air.
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, §7.4. (seq.) (p.2) The Committee considers that the State party has demonstrated, in the present
case, that the ban on dwarf tossing as practiced by the author did not constitute an abusive
measure but was necessary in order to protect public order, which brings into play
considerations of human dignity that are compatible with the objectives of the Covenant. The
Committee accordingly concludes that the differentiation between the author and the persons to
whom the ban ordered by the State party does not apply was based on objective and reasonable
grounds.
o Hard law art. 6 non-discrimination the fact that there is a difference between dwarf
because there are objective and reasonable grounds that they are protection the human
dignity, for other people no need for this prohibition so there is no discrimination
o Poll 1: Should the authorities according to the HRC prohibit dwarf tossing because it is
contrary to human dignity?
If you say yes, “we should prohibit based on this case” than we argue that human
dignity is same in Belgium as in France then you argue that it was necessary
If you say no, “France thought it was prohibited so they could do so” it was
not a violation they do not say that every state need to prohibit this in order
to protect human dignity
It is a cautious approach from the Human Rights Committee
What did France do? Your concept of public order you can say that your idea that
people are not be threatened as objects, you can defend that
Extra: human dignity can evolve throughout the ages, it is relative present day
circumstances
B. HUMAN DIGNITY ACCORDING TO NUSSBAUM
= Anglosaction way of thinking about human dignity
M. Nussbaum (“Frontiers of Justice”, philosopher) identifies a list of central human capabilities
that are implicit in the idea of life worth of human dignity. capable of doing things
More than functionings more than what you do bv. you can have sex with men but does not
mean you need to do it if it is impossible for you to have sex you are not capable to live the
life you want
They support our powers of practical reason and choice and have a special importance in making
any choice of a way of life possible.
Capabilities should be pursued for each and every person and there is a threshold (‘drempel’)
level of each capability, beneath which it is held that truly human functioning is not available to
citizens.
o There is a minimum level of capabilities bv. if you have no feet than you cannot live a life
in dignity
o Societies can put a threshold but can be on different levels
C. IACTHR (= INTER AMERICAN COURT OF HUMAN RIGHTS), YAKYE AXA V. PARAGUAY
Right to life (open norm): living a life in dignity used to the European court especially in cases
about live and death
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, State must generate “minimum living conditions that are compatible with the dignity of the
human person” and may not create “conditions that hinder or impede (belemmeren) it” (p. §68)
(cfr. Nussbaum beiden verschil met de oorspronkelijke definitie vanuit staten die meer denken
aan bescherming in oorlog tegen staten)
“Duty to take positive, concrete measures geared toward fulfillment of the right to a decent life,
especially in the case of persons who are vulnerable and at risk” (§68)
D. ECTHR (= EUROPEAN COURT OF HUMAN RIGHTS), HAAS V. SWITZERLAND
Right to die with dignity? depressed guy wanted to get medicines to die, he didn’t get it
Poll 2: Is there an obligation for States according to the ECtHR to adopt measures to facilitate the
act of suicide with dignity?
o They are not saying so, in Switzerland they did it and the way they did is was not a
problem, not a right to euthanasian
o Judgment (zie p. 3)
§50: you need to be able to make your own choices
§61, §57-58: the authority has not failed here, because they protect you against
the risks of abuse in order to protect the right of life
§ 54: if they think it is not completely free and with full understanding than there
is no violation of your right to of autonomy
E. ECTHR, CAMARA V. BELGIUM
(General concept is gaining force in jurisprudence so we have to discuss it)
Human dignity and the rule of law
Talks about systemic problems in the Belgian system
Facts: Refugee crisis no housing for young men secretary of state priority to children
and women more vulnerable, but why should men sleep in the street?
Not executing provisional housing orders (huisvestigingsbevelen) ordered by judges: state wasn’t
doing so, rule of law in danger! European Court to Human Rights became a manner to respect
the national judgment way to put more pressure
Non-execution of judicial housing order: How long is too long?
Judgment (zie p. 5)
o §1, §6: the public need to trust the court
o § 7: delay to execute the judgment is too long, can be a violation here they are
arguing that there is a fair trial problem
o §10: you need to take a look at how the government works, the complexity, how the
applicant behaves it was not spontaneous the state did something
o §12: it is not an easy task because you tried to help the most vulnerable people (other
refugees)
o §15: But you have the rule of law
o §16: it is a structural problem
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, o §17: Judicial decision was to protect human dignity! referring to human dignity the
judgment was to protect human dignity so we cannot accept such a long delay, so
violation of article 6.
Poll 4: in camara v Belgium the ECtHR was right to refer to human dignity?
o If you take it a contrario why do we need this reference. The Belgium government need
to execute every decision from court.
o How long can you wait if you talk about human dignity? It is national law that has been
implemented that you need shelter. When is it a violation? If you say from the very first
moment than people who are going to court has priority. Or do we give the state some
time to organize?
o The prof: does not think it was necessary to refer to human dignity, more symbolic
3) HISTORICAL PERSPECTIVE
Question: what are human rights actually?
Before W.W.II: national issue
o Constitutions
o Customary law (= gewoonterecht)
o Some declarations bv. French Declaration of Human Tights
After W.W.II: international perspective
o Universal Declaration Fundamental Rights 1948
o Internationale Treaties
Three generations:
o 1) Civil and political rights = blue rights (you find it mainly in the convention of human
rights bv. right to life, right to privacy)
o 2) Economic, social and cultural rights = red rights bv. right to social security, arts
freedom, right to fair payment
o 3) Collective/Solidarity rights = green rights bv. right to (sustainable) development, right
to peace
Criticism: Interdependent (= afhankelijk van elkaar)! Indivisible (= ondeelbaar)! (IACtHR, Yakye
Axa)
o If you want to have respect for the human dignity you need respect for all these sorts of
rights
Relativity:
o Cultural: Western some people say it is a western thing bv. in Asia not a strong
human rights mechanism up till now <> other say it is universal every human being is
equal. Prof: there need to be a core that need to be respected all over the planet, truth is
in the middle
o Social: Bourgeois human rights in fact is a social thing, it helps someone who can go to
court, but the poor people cannot go to court, so you are helping the dominating class to
keep the domination. But it is not all about court, you need structural measures.
Treaties: first rights, but more and more effective enforcement mechanisms bv. International
court of justice is referring more and more to human rights
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, Humanisation of the law (not only the will of States): objective law first it was about
customary law or what are the states agreeing, but it also about objective law law that protect
human beings
Historical perspective: and now?
o It was s initially to protect against the power of the state
o Perhaps the humanisation is imperfect ungoing discussions:
Only protecting individuals? Quid groups, legal persons, animals, nature…
Only against State authorities? Quid multinationals, supranational authorities…?
o We are not at the end of the evolution of human rightslaw
4) (NO) HIERARCHY
Absolute – relative rights but alle required to guarantee human dignity
o Absolute rights = you cannot derogate (= van afwijken) you need to respect them all
the time core of the treaties
o Relative bv. right of privacy, freedom of expressing can be limited depending on the
circumstances and the state can argument this
o But some are not more important than others, there need to be a balance right to
privacy and right to freedom of expression
Criterion?
o most fundamental/basic rights? (cf. “core rights”)
See treaties
o Limitation clause limitations are possible
o Derogations in time of emergency (art. 15 ECHR) bv. in times of emergences, you can
derogate from certain rights, from some you cannot bv. right of life
II. UNIVERSAL PROTECTION (UNITED NATIONS)
1) UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR 1948)
Legal value? It is a declaration, so not intended to be binding, but some aspects has become
general principles of international law and customary law but not all articles
Enforcement mechanism? No, so this is the most problematic, but national courts have referred
to it to interpreter the open word of the treaty text
Articles
o Exam: explain to me the preamble (more detailed text)
Refers to
Human dignity
World War II
Rule of law
Human Rights
o Article 1
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