Human Rights: samenvatting
1. CONCEPT OF HUMAN RIGHTS
Fundamental rights
What are “human rights”?
→ Used in various contexts
› Moral philosophy, politics, legal notions, …
› This class: legal aspect (so also constitutional rights)
→ What do they do?
› Limit power of authority
› Protect human dignity
⊳ What is human dignity? Whose human dignity must prevail? Ex.
Wakkenheim: dwarves made money by being tossed around by
villagers, ex. Sex workers
⊳ If we turn majority point of view into law, we dismiss the minority
point of view
⊳ ‘90s: inflation of use of human dignity (thousands of cases)
Categories of human rights
→ 1st generation
› Classic civil and political rights
› States are NOT allowed to do something
› French and American Revolution, Magna Carta
› Ex. Freedom of press, freedom of expression, …
nd
→ 2 generation
› Social, economic and cultural rights
› States HAVE to provide something
› Russian Revolution
› Ex. Right to an education, right to good living conditions, right to healthcare
rd
→ 3 generation
› Collective rights
› Movement away from classic legal understanding!
› Ex. Right to development, right to peace, right to self-determination
→ BUT all these rights are connected to each other
› States can incarcerate people, but they must provide sufficient food and
medical care etc.
› Strategic litigation: if you argue it well enough, you could bring an
environmental issue before the Committee on the Rights of the Child (Greta
Thunberg did this)
⊳ Criticism: judges are becoming politicians
International dimension
→ Before WOII: protecting people against public authorities was a matter of national
law
→ Now: people also need protection against national authorities who fail to comply
with their own constitutions
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, Who are the holders of human rights?
→ Individuals
› Ex. Art. 1 ECHR: “everyone”, without further condition
› Ex. Covenant on Civil and Political Rights: “all individuals”
⊳ No condition on legal status within territory of state! This has faded
gradually over the years within the EU
→ Private entities
› Companies, associations, … (ex. Right to fair trial, freedom of expression)
→ Collectivities
› Mostly third-generation rights, ex. Right to self-determination, right to
dispose of natural wealth and resources
Who must respect human rights?
→ Public authorities or the State
› All its dimensions: executive, judiciary, and legislative power, but also lower
entities (like municipalities, provinces, …)
› Ex. In Belgium the ECHR is signed and ratified by the federal government
→ Private individuals and private entities
› ‘Horizontal application’ of human rights provisions
⊳ Ex. Landlord discriminates you on basis of race, sexual orientation, …
› You cannot bring a private entity before the Strasbourg court
⊳ If you protect one party’s right, you are dismissing the others, and
the other way around
⊳ You CAN bring State before the court because it did not protect you
against this violation
› Corporate human rights responsibility
⊳ But: big transnational corporations do not have to respect human
rights, even though they sometimes have cash-flows that outnumber
GDP’s of respectable states
o Ex. Children making clothes in Bangladesh
o Some work done, but it remains soft law (“Ruggie-
principles”)
Are fundamental rights absolute or relative?
→ Can right holders waive their rights?
› Yes, we do this all the time in agreements
› But there are conditions
→ Few human rights are absolute, mostly within framework of European Convention
› Ex. Right not to be tortured, non-retroactivity of criminal law, slavery
Do we have responsibilities and duties?
→ Does this not mean taking back part of the rights that were given?
→ Morality question?
Are human rights universal?
→ Difference in cultures about violations, rights, …
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, → There is a middle ground, but it is not because we share the same right that we have
the same conception of those rights
› Ex. Right of marriage vs. right of same-sex marriage
→ Complicated issue!
› That’s why we focus on the ECHR
2. HUMAN RIGHTS IN INTERNATIONAL RELATIONS AND IN INTERNATIONAL LAW
Human rights is an interplay between 3 levels
→ International level: United Nations
› Emphasis on state sovereignty
→ National level: control mechanism necessary!
→ Regional mechanisms
National sovereignty and international protection of human rights
In general
→ Principle of non-interference in domestic matters (art. 2, §7, UN Charter)
Actions in response to serious violations of human rights
→ Economic measures
› “Human rights clause” in the trade and cooperation agreements between
the EU and third countries
⊳ Ex. International cooperation ends if there is a violation of human
rights
› Possible reactions against violators
⊳ Principle: no agreements with human rights violators
⊳ Dialogue: try to exercise influence, so they will listen and change
› Economic sanctions (see art. 41 UN Charter)
⊳ Unilateral, ex. freezing economic belongings of companies, draining
importation/exportation
⊳ Serious impact on population of state (never food, medicine, or
education!)
→ Use of force (military intervention)
› Provisions of UN Charter:
⊳ Art. 2, §4: prohibition of use of force
⊳ Art. 42: action taken by Security Council
› Ex. NATO intervention in Yugoslavia (1999)
⊳ Sub-Commission resolution 1999/2
› The search for criteria:
⊳ International Commission on Intervention and State Sovereignty,
The responsibility to protect (2001): domestic state has responsibility
to act
⊳ UN 2005 World Summit Outcome, §§ 138-140: international
community must act, if domestic state is unwilling or unable to do so
Problem: agreement necessary within Security Council
Question: how does international humanitarian law (Geneve Conventions) and international
human rights law interrelate?
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, → Human rights are still applicable in case of an armed conflict
→ BUT: states can ask that they are suspended, in case of emergency
→ When there is an overlap, the ICJ says that human rights are lex generalis and
humanitarian law is lex specialis
Universality of human rights
Dispute: do international human rights standards reflect only Western values?
→ Some sort of neo-colonialism?
→ Even non-western writers of human rights were formed by western legal tradition
Some principles of international treaty law
Interpretation of treaties
→ Finding an agreement is easier when using vague and open terms
→ Treaty on treaties (art. 31-33)
› Art. 31: refer to the terms of the treaty, secondly look at context, thirdly take
in account the object of the treaty
⊳ Look at whole treaty, preamble, … so you have an idea about the
intentions
› Art. 32: look at discussions during preparation of treaty
→ Court of Europe: living convention
› Pragmatic, dynamic and evaluative interpretation of the convention
› Problem: you behave as a law-maker
Reservations
→ Completely lawful, common practice (see art. 19)
→ BUT if you have reservations about key-clauses of the treaty, the agreement
becomes null and void
› If exceptions are found to be illegal, you are STILL bound by the treaty!
→ Belgium often accepts rights, but only to the extent that they are compatible with
their constitutional rules
Denunciation of a treaty (see art. 56)
→ Provision: you have to follow procedure
→ No provision: no denunciation possible, except if parties intended to imply such
denunciations
→ Dilemma: if you comply too much with criticism, you can’t do your job properly, but
if you don’t comply, some states may leave the system altogether
› The question is what is better for the population?
Human rights law and international humanitarian law
Issue of protection of civilians in armed conflict
→ Creation of UN goes hand in hand with creation of human rights
› Experiences of Holocaust influenced the drafters heavily
→ Timeframe: colonization still exists, Cold War has not yet begun
› Not all African countries are independent yet
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