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INTERNATIONAL AND EUROPEAN HUMAN RIGHTSLAW
Class 1 – 28/09/2023
Introduction – Concept of human rights: characteristics, categories of fundamental rights, vertical and
horizontal application, conflicts between fundamental rights and other rights and interests; individual rights
and duties
1. Fundamental rights
What are human rights?:
- Rights inherent to being human
- Those rights that the legal system recognizes as such
- It limits state power
- Rooted in human dignity
Contradiction: We give high priority to fundamental rights, we see them as supreme rights. But at the
same time it’s very difficult to use those criteria in order to understand whether a
rights is a fundamental rights or an ordinary right
- Several interpretations of what a human right might be:
1. Definition of textbooks: ‘The right that everyone is entitled to because of being a person.’
- Can be criticized, because it doesn’t say anything about the kind of rights
2. Definition of lawyers: ‘Human rights are the rights you would find in human rights treaties.’
- It’s an human right because the legal text claims it. But how did they come in those treaties?
Human rights = the result of historical evolutions
1.1 Common characteristics
1.1.1 Protection against state power
Human rights = Based on the idea that citizens should be protected against the authorities
= Those rights that protect individuals against arbitrary interferences by public authorities
= Related to the rule of law (and not the rule of men)
HR are rooted in medieval documents:
1. Magna Charta (1215): it’s the first text in England on basic rights that protects citizens against
authorities interfering with their fundamental rights
- All over Europe: tendencies that the central power couldn’t have absolute rights to do whatever
they wanted
F.e.: The charters in Liège: ‘Le pauvre homme est roi dans sa maison’
= No matter how poor you are, you are the king in your own home
= You are entitled to the same type of tranquillity in your home as the Windsor family
in their castle
- All those charters were not systematic protections of HR
They protected some HR or specific categories of persons (rights for widows, orphans…)
- Main feature of these charters: rights are given by the authorities + they can take them back
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, 2. End of the 18th century : the concept of HR comes up at the same time in France and America
In both countries there was a revolution = is seen as the starting point of HR
- French Revolution ended in 1789: ‘Declaration des droits de l’homme et du citoyen’
= ‘All people are born free and are equal before the law’
- American revolution 1791: the American constitution + Bill of Rights
First time that there is a general catalogue of rights
- HR were given to you because you are a human being and a member of a political society
- Causes a discussion about democracy and the limit of the use of the state’s power
3. In the 19th century: it becomes quite common for states to have a list of FR in their constitution
1831: The BE constitution of classical liberalism
= Was a leading model containing these constitutional values
4. Last quarter of the 19th century: Criticism coming from communist, social democrats and enlightened
liberal thinkers and politics.
Their argument: You have rights, which are fundamental and tell the state to stay away from
- Markx: aren’t you protecting bourgeoisie rights?
- What does it mean to protect the freedom of expression if people can’t write or read?
Than it remains void
- If you daily struggle to survive, than the rights protected seem to be a kind of luxurious
good that have no meaning at all
- You should also keep in mind the material circumstances in which people live.
The coming up of the second generation of rights: Whereas the first generation of rights was aimed at
keeping the government away. The second generations of rights formulate claims on the government to do
things
- The second generation rights are a reflection on the first generation rights.
- It has a budgetary impact (>< the first gen.): the whole social welfare has an impact
You need some time as a state to accomplish this
- The second generation is a matter of means (>< the first is a matter of result)
For judges it is uncomfortable: “Did government do enough?” = kind of political question
The idea of seeing states as ‘the big enemy of HR’ is outdated: nowadays we tend to see the state both as a
threat and as a player
Comparison with the Belgian student: On Sunday evening they leave home with food made by the
mother and money to survive op kot. They want their parents to stay away, no control, but at the end
of the week the money is gone, you have dirty clothes and the Tupperware is empty. So you need
your parents again, you need protection.
It’s the same in HR law, because the states don't only have a duty to refrain from acting, but also
states have duties to act in favour of the citizens
5. After WWII: The idea to protect human rights at a more regional or international level comes up
It’s not sufficient to have national human rights, because if we rely on the state for FR, than we
are saying that we hope that states protect the FR of their citizens. But what if those states
don’t comply with their FR?
You need something more, you need a place where you can complain when a state does not
comply with FR
That is why as of WW2 international HR is developed. Rights that previously were only
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, protected by states are now also protected by international texts
= It creates possibilities where ppl can complain on regional or international level.
1.1.2 Human dignity
H.R. Committee, 15 July 2002, Wackenheim v. France, no. 854/1999:
Summary: - A practice whereby people were throwing dwarfs at fairs: who threw the furthest, won
the game
- There came critique that this activity is a violation of human dignity
- A permit was needed to organize these fairs, but in one commune the mayor refused to
give it. The reason being that tossing dwarfs was about mocking people (see: human
zoo) and that is a violation of human dignity.
- Appeal against the decision: Mr. Wackenheim stands up and says who are you to judge if
it is a violation against my human dignity. He says he has the fundamental right to live his
life as he wants and to choose the job that he wants.
- Mr. Wackenheim lost. Even though the mayor did not have a legal ground to deny a
permit, because that could only happen when a permit puts the public safety in danger.
- Wackenheim took it to the UN Human rights committee and they said that France and
the mayor could decide to not allow this kind of activities.
Problem: this case shows what the intrinsic problem is with human dignity. Namely whose human
dignity?
- Isn’t there a risk that, if HR are aimed at the protection of the individual against public
authorities, human dignity is a very weak concept?
Human dignity would allow precisely that majorities use it against minorities and
that’s what happened in Wackenheim. The mayor expressed a common view of
what HD is.
- F.e.: Sex workers. Some countries forbid it, some allow it.
If a person decides to become a professional sex worker (freely, not forced), perhaps
that is the expression of human dignity regardless of what a moral majority thinks.
The moral majority would say that sex work is a violation of the dignity of women.
- F.e. Temptation island: Pommeline Thijs was the face of a commercial for a casino. She
was wearing a bikini and had champagne in her hands.
The ethical commission on advertising found it sexist, because there was a woman in
a bikini and it had nothing to do with a casino
They found it a violation of dignity, but can’t Pommeline choose the image she uses
as her brand?
The whole influencer world can decide their own image
Conclusion: There are people in favour of the concept of human dignity and there are people who
dislike it.
- Paul Martens (member of the BE CC) said: “As a scholar I am opposed to it, because it is
to open, to vague and prone to abuses. But as a judge I am in favour of it, because you
see that things go wrong and you don’t know what. Than you are so happy that you can
invoke human dignity as an ultimum remedium.”
Sometimes Human dignity is the ultimum remedium to close the whole system
- Human dignity became popular and predominant after WWII. (It was written in the German constitution
in art. 1), because many of the crimes that were committed were lawful under the legislation at that
moment, but they did violate human dignity.
- F.e.: The nazi time: many of the crimes committed were lawful under the legislation of that moment
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