INTERNATIONAL & EUROPEAN HUMAN RIGHTS LAW
document on toledo with conventions, treaties,...: bring to exam
exam: written, 2h30
2 questions:
- very open question
- case: “what would you decide if you were the court / one of the parties / …?”
answer in bullet points or full text, 1 page for each question
→ structure & reasoning is most important!
you can take the exam in english or dutch! but if you go for one language, stick to it
in de outline staan meer arresten die ik hier niet heb opgeschreven
moeten we ze kennen?
→ outlines mee afprinten voor namen van die cases, maar zijn minder belangrijk!!!
CONCEPT OF HUMAN RIGHTS
WHAT ARE HUMAN RIGHTS?
typical textbook answer: “rights we are entitled to because we’re human” = inherent to
human nature
but this definition doesn’t answer WHAT human rights are
how do you know if a right is a human right?
problems:
- unclear if some human rights are HR / what they really mean
- HR evolve over time & space
vb. same sex marriage wasn’t a HR 50 years ago
hard to define HR in an abstract term
⇒ we leave the discussion of what HR should be to philosophers:
in this class: positivist approach → we look at the texts (treaties,...)
= HR are the ones that the legal system recognises as such
if we look at it from a historical view: 2 functions of human rights:
we may not know exactly what they are, but we know what they do:
- protection of individuals against abuse of authority / limit state power
= oldest & most important idea
= HR are limits to state power and make authorities accountable
this is where HR are related to the idea of constitutionalism
HR are the product of history:
first: some categories of people received rights (widows, children,...)
⇒ central powers began to guarantee rights
- 1215: Magna Carta
- was to make peace between unpopular king & rebel barons
1
, - the English say it’s the 1st text where you can see some citizens are
entitled to a kind of protection against authorities interfering with their
fundamental rights
- 1312: Charter of Kortenberg + 1356: Blijde Intrede
- charter of liberties granted to civilians of the Dutchy of Brabant
- equivalent of Magna Carta of the Low Countries
then major breakthrough: French & American revolutions
→ first time that the concept of human rights comes up
- la déclaration des droits de l’homme et du citoyen
- certain rights because you are a human + citizen of a political
community
- = first time we got a catalog of rights so fundamental that public
authorities could not interfere
19th century: this idea comes into some constitutions
- these rights are protected nationally: national constitutional rights
however: 30s & 40s: WW2
→ became clear that the compliance of the authorities with these obligations is not
guaranteed
→ some states didn’t respect their constitution
the ones that have to protect HR, are the ones HR must be protected against
solution:
- international HR
- international mechanisms
- human dignity
hard to find a definition for human dignity
Wackenheim v. France = Morsang-Sur-Orge
there was a tradition of dwarf-tossing, but in France you need permits for these
kinds of activities
→ mayor refused to give permission: “it is a violation of human dignity”
however: Wackenheim (the dwarf himself) didn’t agree: “I have the right to choose
my own profession. I don’t care if the majority think this is against human dignity. I
don’t.”
end:
- Conseil d’Etat: agreed with the mayor
- Strasbourg court: case was inadmissible for administrative reason
- HR committee of political and civil rights of the UN: no problem with the
prohibition
→ Wackenheim loses
link with prostitution: some people do this voluntarily for a living, so can we
really say it’s against human dignity?
→ some countries forbid using prostitution, but don’t forbid prostitution itself
2
, link with Pommelien: ad for a casino where she was in a bikini
→ ethics committee said it was against women’s dignity, but whose dignity?
takeaway from these cases:
there is no abstract objective understanding of “human dignity”:
if we follow what the majority sees as human dignity, this could be used
against a minority, which isn’t the point!
→ we exclude the minor point of view of some people, and only offer
protection for the moral majority
there is still autonomy, next to human dignity!!
“as a scholar, I am opposed to HD because I see how it can be turned against
a minority. but as a judge, I’m in favor of HD:
sometimes you don’t have another strong legal argument although you
know something is wrong → use HD
= fills a lacune”
4 CRITERIA OF HUMAN RIGHTS
absolute character
= they are the most important rights, we can't impede on them
however: only some of these rights can never be limited, most of them can be!
universal?
however:
- there is a diversity globally: HR are not equally important / the same everywhere
- if they were truly universal, they would stay the same over time
but there has been a huge evolution in the last 10 centuries
unwaivable: you can’t just make agreements and deviate from them
vb. art 6 code Napoleon
however: people are constantly making agreements
vb. Big Brother: waive their privacy
vb2. there is freedom of expression, but our professor can’t just talk about whatever he
wants to: he still has to teach us what the university decides
⇒ conclusion: you can’t waive your HR completely without informed consent!
indivisible: they’re all inter-related
→ see Vienna Summit
CATEGORIES OF HUMAN RIGHTS
2 categories & 3 generations of human rights
historical importance of these generations of rights: during the cold war:
- Atlantic block: freedom = 1st gen
- communist block: freedom = 2nd gen
3
, ⇒ there is also a political meaning behind this
1ST CATEGORY: INDIVIDUAL RIGHTS & FREEDOMS
1st generation: freedom & procedural rights → civil & political rights
- link with limiting power of authorities
- authorities shouldn’t interfere → negative duty for the state to stay away
- obligation of results
examples: freedom of speech, religion, right to not be tortured, right to live1
civil rights → for everyone
political rights → reserved to those participating in a political society
first seen in American & French revolution: these rights are for everyone
criticism on these rights:
isn’t it too easy for the state?
the state should also pay attention to the material circumstances in which these rights
are exercised2
→ it’s not enough for a state to just stay away
oplossing:
2nd generation: participation rights → economic, cultural and social rights
- positive obligation on state: has to do things
- they don’t say exactly what the authorities have to do, but they do require a real
action by the authorities → obligation of means
= state has to act to the best of its ability
but there is also the budgettarian issue: can’t do
everything
examples: right to school, education, housing, medical care,...
there are more discussions on the scope of the 2nd gen
- they can change with the culture: some countries require healthcare, while some
others don’t
- choice of policy also depends on the culture
vb. in the west Europe: we see the state as the actor that will save us (healthcare,...),
while in some other parts of the world: they see the state as evil
2ND CATEGORY: COLLECTIVE RIGHTS
3rd generation: solidarity rights
- more moral rights than legal rights
1
authorities have to stay away from killing / torturing you
2
vb. we have the freedom of expression / press, but what good is it if we don’t teach people how to
read or write?
4
