International and European human rights law
I. Concept of human rights
Fundamental rights
1. Common characteristics
-Human rights is a very strong narrative (it expands to all fields in life)
-Everybody talks about human rights, but what do we mean by human rights?
• “Fundamental rights we are entitled to by virtue of we being human beings.”
o A typical textbook answer
o Definition does not answer the question, we just say what humans are entitled to
• Different problems
o Unclear if some rights are human rights and what it really means
o Human rights evolve over time and space
▪ Eg. Are same sex marriages a human right?
• 50 years ago: NO => in 20 years from now: YES
• Not a clear and general accepted idea about same sex marriages
▪ but if human rights are basic rights, shouldn’t they be universal in time and space?
Hard to define human rights in abstract term (discussion between philosophy and law)
-Leave reflection on what human rights should be to the philosophers => then human rights are: rights you find
in human rights treaties
• But why is it then that some rights have that special status and are found in human rights treaties and
other rights don’t?
• To see why some rights are found in treaties, we need to look at it from an historical perspective
We see 2 functions of human rights when we look at it from a historical view
1) Protection of individuals against abuse of authority
o Human rights function as limits to the power of the state and arbitrary use of power, by making
the authorities accountable
2) Human dignity
o This dimension of human rights extends the scope of human rights because “human dignity” is
a large/extensive concept
A. Protection of individual against abuse of authority (1st function)
• Oldest idea but most important
• That’s where human rights are related to the idea of constitutionalism
= human rights function as limits to the power of the state and arbitrary use of power, by making the authorities
accountable
-England: Magna Charta (1215)
• Drafted to make peace between unpopular King and a group of rebel barons
• It promised the protection of church rights, protection for the barons from illegal imprisonment, access
to swift justice, and limitations on feudal payments to the Crown
• To be implemented through a council of 25 barons
• English people say it’s the first written text where you see that some citizens are entitled to a kind of
protection against authorities interfering with their fundamental rights.
-Belgium: charter of Kortenberg (1312) or The Joyous Entry of 1356 ( Blijde Intrede)
• It is the charter of liberties granted to the civilians of the Duchy of Brabant
• Seen as the equivalent of Magna Carta for the Low Countries
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,=> Central powers began to guarantee certain rights: central power and its people could not be one with absolute
rights for the public authorities => national protection of rights
-The first time the concept of human rights came up is during the French revolution (1789)
• La déclaration de droit de l’homme et du citoyen
• Certain rights because you are human and a citizen member of a political community
• First time we get a general catalogue with rights being fundamental, so fundamental that public authorities
could not interfere with them
• This idea permeated into the rest of western world in the 19th century
o Constitutions will incorporate all these lists of human rights
o Those rights protected were national rights => called constitutional rights, not international rights
o International human rights only came up after World War II
-Even though national constitutions of authoritarian regimes of 30’s and 40’s imposed obligation on authorities
to respect fundamental rights, the compliance of those fundamental was not guaranteed
• Citizens were still unprotected
• Some states did not respect their constitution + conflicts between national states => International human
rights emerged
B. Human dignity (2nd function)
• Controversial idea
• Scope of human rights is extended to an international dimension after WOII
• Hard to find a definition for human dignity
a. Wackenheim v. France (Human Rights Committee, 15 july 2002)
-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 it was a violation of the human dignity (laughing with people with a disease)
• Mr. Wackenheim (the dwarf itself) didn’t agree he has to right to choose his profession just because of
the existence of human dignity
o This is against your (the major) idea of human dignity
o There is no abstract objective understanding of human dignity
-Court
• The conseil d’etat agreed with the mayor
• Strasburg court: case was inadmissible for an administrative reason
• Human rights committee of political and civil rights of the UN: no problem with the prohibition
(Wackenheim loses)
-Question remains today: eg. Prostitution
• A lot of human abuses and human traffic, but is that sufficient to forbid prostitution?
• Some people do this for a living (voluntary), so can you say it’s against human dignity?
-Difficult to define human dignity: we exclude the minor point of view of some people and we 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
o Belgium: after the incorporation of art 23 in the constitution
o International: after WOII
• Why?? Because it’s almost always a winning argument
o You can win a discussion by saying something is a violation of human dignity, because the other
party must define human dignity to show there is no violation
o Human dignity is what people say it is
• Human dignity may be the more problematic use of human rights
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,-Large amount of philosophical discussion on what exactly is the concept of human rights
• Our plan: leave the discussion to philosophers and to stay with the legal practice
• Legal practice is conditioned and influenced by historical evolution
2. Categories of Human rights
A. Individual rights and freedoms
-2 categories of human rights who equal 3 generations of human rights
Categories Generations
• Individual rights and freedoms • Civil and political rights (1st generation)
o 1st generation • Economic, social and cultural rights (2nd generation)
o 2nd generation • Solidarity rights (3rd generation)
• Collective rights
o 3rd generation
a. Freedoms and procedural rights (1st generation): civil and political rights
-Clear link with the idea of limiting power of the authorities (protect individuals against the state)
• The idea is that the authorities should not interfere with some fundamental matters
• Stay-away rights: negative duty on the state (duty not to intervene)
• States have to hold back from doing things (= an obligation of result)
E.g. Freedom of speech
E.g. Freedom of religion
E.g. The right not to be tortured: the authorities have to stay away from torture
E.g. The right to live: the authorities have to stay away from killing you
-For whom?
• Civil = rights for everyone
• Political = rights reserved to those participating in a political society
-See this the first time in the American and French Revolution
• Introduced rights for everyone
• Influenced a lot of national constitutions and the Belgian constitution (‘the Belgian and their rights’)
• Result of this revolutionary era => human 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?)
• Not only a formal right to write as such, but also a general condition in which you can exercise your right
o In order to enjoy all the rights you have, you need to be in good physical health
o Eg. Right of education => right of housing and the right to food
• It is not sufficient for state authorities to just stay away: sometimes they will have obligation to do things
o Negative duty = good but not enough
o Negative duty + positive obligation = better
b. Participation rights (2nd generation): economic, social and cultural rights
(Developed in light of the criticism against civil and political rights)
-Rights focusing on the circumstances in which people live
• Positive obligations on authorities, they need to do things (ex. develop a health care system)
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, E.g. Right to school
E.g. Right to educate
E.g. Right to housing
E.g. Right to medical care
-2nd generation rights are more demanding than the 1st generation rights, which were very easy to comply with
because states don’t have to do anything (obligation of result)
• These rights don’t say exactly what needs to be done, but they do require real actions by the authorities
(=obligation of means)
• 2nd generation rights are more related to politics
o Judges are more unwilling to take these cases: how can judges without becoming politicians say
that the state didn’t do enough effort to guarantee a certain right?
-Choice of policy is different depending on the culture you live in
• Eg. Everyone agrees no one should undergo torture, no one can be against it
• BUT whether we should have a public health care system and how far we should go, that is a matter of
the law but also a matter of culture (answer will differ from place to place)
! More disagreements about meaning and scope of 2nd generation rights than about the 1st generation
• Eg. We could move into a discussion by asking should there be a right to go to the opera? Why not?
Because maybe it’s too expensive, but it’s culture! Why isn’t there a state funded right to go to the opera?
• Conclusion: scope of 2nd generation rights is more difficult to define
B. Collective rights (“3rd generation”): solidarity rights
(More moral rights than legal rights + more remote from the classic idea of rights nl. party against party)
=They aren’t rights you have as an individual, but which you have as a group
E.g. Right to peace
E.g. Right to environment protection
E.g. Abstract right to self-development
E.g. Right to self-determination
-3rd generation rights are even more difficult to define
• Also other questions arise: Where can I go to if I think my right is not applied? Who’s going to be guilty?
-Remark: there are smart ways to solve this problem. You can try to find links with a 1st or 2nd generation right.
• E.g. Right to environment cleaning care is normally a 3rd generation right but you can make it fall under
article 8 echr if you argue that your right to safe house, health care is violated…
C. Making a distinction between those rights
-1993: UN Summit in Vienna on Human Rights
• All generations of human rights are one (interwoven, cannot be separated)
• But professor still believes that there is a qualitative difference (but differences are less outspoken)
-Eg. ECHR imposes positive duties and obligations on states (2nd generation), but it also uses these positive
duties and obligations to evaluate civil and political rights (so 1st generation)
• Negative right to not use violence by public authorities in case of a riot, but when victims occur, the state
has a positive obligation to start an investigation
• Positive obligation to have a fair trial, but
-Eg. We have a lot of rights that are actually third generation rights, but we define them as first generation rights
in order to be able to offer people protection
• Eg. Gretha Thunberg brought a claim before the Committee on the Rights of the Child on climate change
o Climate change is an environmental issue
o Form of strategic litigation (creative way to bring human rights to a court)
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