“INTERNATIONAL AND EUROPEAN HUMAN LAW
CHAPTER 1 : INTRODUCTION
What are human rights?
● Answer : rights inherent to humans
○ BUT the definition is really abstract,
■ one of the major problems : a gap between the theory about human rights and its
practice, so it makes little sense to develop a sophisticated theory about human
rights if the human rights practice doesn’t follow it.
● = We are using an essential term( fundamental right) but we don’t have
an essential understanding of the term
○ Point of view Lemmens : human rights are those rights that the legal system recognize as
such
■ The wording, the concept of those rights are evolving
● In conclusion : we don’t know what exactly human rights are ( finding the limits,..) BUT we can
explain what they do!
● What are human rights for?
○ 2 narrative :
■ 1. see joseph Ross : human rights sets limits to states sovereignty / power
● -> Link to the “ political view” of HR : HR are considered to be minimal
safeguards against abuse of power by the authorities (= what
constitutional and HR still do today)
● Eg: the European Convention on HR
○ Opm ( also see later) As we will see later on, the Convention
(and Protocols) only protect a handful of “absolute” rights –
understood as unrestricted rights. Most rights, by contrast, are
subject to limitations. However, it doesn’t follow from the mere
fact that human rights can be restricted, that any restriction is
acceptable per se. The European Court of Human Rights’ task
will be mostly to assess whether States respected the conditions
allowing them to restrict human rights.
■ To protect human dignity → the human dignity that state power can’t
touch
● It appeared since the second world war BUT In Belgium it appeared later
: art 23
○ Almost none write about human dignity and now it this term has
experienced an exponential explosion and this term is now used
in a bunch of text
● Goal? Human dignity was a way to say that you don’t have strong legal
arguments but strong moral argument
○ F.e during the world exposition : entire african family were
exposed and people looked at them like in a zoo ( offense
against the human dignity)
■ => if human dignity is to be protected, which human
dignity is protected? ( Wackeheimer)
● As a judge he was a favor of human dignity :
sometimes you feel that something is right BUT
you don’t have legal rights, then the
, constitutional judge is happy to fill it with human
dignity
● ( = symbol of how difficult it is in law to use the
concept of dignity). one French municipality, Morsang-
sur-Orge – but there were others – the local authorities
refused to deliver a permit for the organisation of a dwarf-
tossing event. A certain Mr. Wackenheim, who was a
person with dwarfism, and the producing companies
contested the refusals. The case ended up before the
French Council of State, which upheld the prohibition,
arguing that dwarf tossing violated human dignity and that
human dignity is an element of public order. Appeals to the
European Commission of Human Rights and the UN
Human Rights Committee were not successful. -> it reveals
two conflicting interpretations of human dignity. The
French Council of State may have adhered to a
conventional, majoritarian view of dignity. Yet, Mr.
Wackenheim found this approach too paternalistic: he
argued that choosing one’s profession is a quintessential
element of human dignity. Barring him from exercising the
profession of his choice, would then be denying his dignity
○ -> the underlying conflict of interpretation
applies also on issues about prostitution,
industry, advertising,...
○ BUT it can be dangerous!
○ ex : Paul Mertens : it can be used against
minorities / against individuals as it is so an
open concept. But as a judge i am in favor of
human dignity, because sometimes you feel
that something is wrong and you don't have
a very strong legal argument. -> you can use
human dignity to file lacune ( but it is very
dangerous and you must be very careful)
The essential features of HR
● universality of HR?
○ At first sight : logic to say that HR are rights that people enjoy because of their humanity
and that they thus are universal
○ -> BUT : debate : are all human rights all over the world equally important?
■ -> universal character is not that easily defendable, human rights are always
developing over the time … ( see next chapter)
● Absolute character of HR?
○ Theory? consequence of the idea that they are the highest norms in the legal order ->
After all, if human rights are the highest norm, no norm can be above them, set them
aside, restrict, or limit them.
○ BUT nuancering : as we will see when discussing the ECHR mechanism at length, HR
themselves are seldom supposed to be absolute…
■ Eg : Some abs HR : the anti-torture provision (Article 3 ECHR) , anti-slavery
provision
■ but most HR are not abs….
, ● Eg: Apart from the notstandfeste rights ( which cannot be suspended in
times of emergency )the other rights can be suspended (Article 15) in
exceptional circumstances.
● Eg: in normal times most rights can be restricted, either on the basis of
an explicit provision (the second paragraphs of Articles 8-11) allowing for
this, or on the basis of implicitly accepted limitations.
● 3. The inalienable character of HR
○ = It indicates that individuals cannot be deprived of their fundamental rights.
■ BUT ! be careful: It does not imply that human rights cannot be, in certain
contexts, to certain extents, be suspended, conditioned or restricted. (Eg: when
prisoners are deprived of their freedom, political rights can be restricted
depending on national status,.. )
○ -> extra Question: Can individuals waive their FR?
■ YES : under certain circumstances, they can renounce the protection of their FR.
( eg confidentiality clauses in contracts are restrictions on freedom of expression,
accepting cookies is accepting interferences with data protection)
■ Functioning? The wider the scope of human rights is defined - due inter alia to
the dynamic interpretation – the more likely it is that holders of rights will
renounce the protection of the right (because there are overriding interests)
● -> What is in any event impossible, is that waivers are blank clauses,
without limitations in time, covering all the rights at stake !!!
■ In other words ( see class ): debate on waiving FR?
● see art 6 of the old napoleonic civil code : you cannot agreements that
would go against public morality ( “de goede zeden”) and that would go
against the legal order ( “ l'ordre public”)
● -> if human rights are those essential principle of the legal order : you
must be frustrated because in that understanding you cannot make
agreements with your human rights ( no contracts about HR ) -> people
are contracting all the time on issues on the legal order, people
constantly waive their HR
○ eg concluding an agreement “ you will be working during .. hours
as a professor at the university about a specific topic” : could be
seen as waiving HR ( waiving your freedom of speech)
● -> in the reality : lot of agreement that we are making concerning HR
● -> SO : idea : not that you cannot make agreement involving your HR,
idea is that you cannot wise them entirely without in implicit / general way
paying attention to the circumstances in wich it is done
○ -> make clear that you perfectly know what the consequence is
of waiving those rights? -> “informed consent”
● HR are an indivisible whole
○ = several “generations” of HR -> all HR are interconnected -> no category is more
important than another!!
History of Human Rights
● The way we are describing human rights , is that if we want to understand human rights we have
to read text
○ => history : human rights are essentially historical
■ = in the past, a lot of things that we call HR today, were already protected but not
another under the HR concept such as we are using today
, ● -> to understand the modern concept of HR : go to the modern area and
it predecessors
○ see the medieval charters :
■ the magna charta= the oldest known HR document ->
there were older versions BUT we lost them
● the charter van kortenberg, de blijde inkomst,
○ = those charter limit the powers of those
that are in power & give rights to some
categories of citizens ( eg : orpheans,
widows,...)
○ french / Am revolution ( = important!)
■ = a profound critical reflection on what is state power /
what is it to be governments ( <-> medial charter)
● eg: How can we explain that some people can put
some obligations on others? what are the limits of
sovereignty
● -> is there are sphere of freedom inherent to
anyone in which rules cannot just enter?
● = forcing authorities to explain why they have
authority and by not accepting anymore the
traditional idea of king authority because gave it
to you
○ extra see Grotius : “ even if god would be there” -> lets live
religion outside of the discussion
■ -> “ déclaration des droits de l’homme et du citoyen”
● = human rights are not anymore the rights of a
very specific group of the society, but now they
are the right of everyone ( the right of the man
and its citizens )
○ -> everyone is born equal before the law
■ => the idea of a catalog of rights is becoming in the 19
th century incredible popular ( see constitutions where
the constitutional rights are protected)
● -> what we see : rights protected as
constitutional rights ( rights that are protected by
the national states)
● -> this can work BUT problem? ->
○ those that are supposed to protect you
are also those who can potential breach
your rights
● -> next question : what if the state fails?
○ -> challenging theoretical ideas !!
○ end of WWII : idea that you need something more : state always
are the pragmatic players in the system, but we need something
more if state failed
■ -> we need 2 things : international standards ( that go
beyond the national standards) and international values
● = that system is not supposed to act primarily
( that is not the first place you go : you go only to
CHAPTER 1 : INTRODUCTION
What are human rights?
● Answer : rights inherent to humans
○ BUT the definition is really abstract,
■ one of the major problems : a gap between the theory about human rights and its
practice, so it makes little sense to develop a sophisticated theory about human
rights if the human rights practice doesn’t follow it.
● = We are using an essential term( fundamental right) but we don’t have
an essential understanding of the term
○ Point of view Lemmens : human rights are those rights that the legal system recognize as
such
■ The wording, the concept of those rights are evolving
● In conclusion : we don’t know what exactly human rights are ( finding the limits,..) BUT we can
explain what they do!
● What are human rights for?
○ 2 narrative :
■ 1. see joseph Ross : human rights sets limits to states sovereignty / power
● -> Link to the “ political view” of HR : HR are considered to be minimal
safeguards against abuse of power by the authorities (= what
constitutional and HR still do today)
● Eg: the European Convention on HR
○ Opm ( also see later) As we will see later on, the Convention
(and Protocols) only protect a handful of “absolute” rights –
understood as unrestricted rights. Most rights, by contrast, are
subject to limitations. However, it doesn’t follow from the mere
fact that human rights can be restricted, that any restriction is
acceptable per se. The European Court of Human Rights’ task
will be mostly to assess whether States respected the conditions
allowing them to restrict human rights.
■ To protect human dignity → the human dignity that state power can’t
touch
● It appeared since the second world war BUT In Belgium it appeared later
: art 23
○ Almost none write about human dignity and now it this term has
experienced an exponential explosion and this term is now used
in a bunch of text
● Goal? Human dignity was a way to say that you don’t have strong legal
arguments but strong moral argument
○ F.e during the world exposition : entire african family were
exposed and people looked at them like in a zoo ( offense
against the human dignity)
■ => if human dignity is to be protected, which human
dignity is protected? ( Wackeheimer)
● As a judge he was a favor of human dignity :
sometimes you feel that something is right BUT
you don’t have legal rights, then the
, constitutional judge is happy to fill it with human
dignity
● ( = symbol of how difficult it is in law to use the
concept of dignity). one French municipality, Morsang-
sur-Orge – but there were others – the local authorities
refused to deliver a permit for the organisation of a dwarf-
tossing event. A certain Mr. Wackenheim, who was a
person with dwarfism, and the producing companies
contested the refusals. The case ended up before the
French Council of State, which upheld the prohibition,
arguing that dwarf tossing violated human dignity and that
human dignity is an element of public order. Appeals to the
European Commission of Human Rights and the UN
Human Rights Committee were not successful. -> it reveals
two conflicting interpretations of human dignity. The
French Council of State may have adhered to a
conventional, majoritarian view of dignity. Yet, Mr.
Wackenheim found this approach too paternalistic: he
argued that choosing one’s profession is a quintessential
element of human dignity. Barring him from exercising the
profession of his choice, would then be denying his dignity
○ -> the underlying conflict of interpretation
applies also on issues about prostitution,
industry, advertising,...
○ BUT it can be dangerous!
○ ex : Paul Mertens : it can be used against
minorities / against individuals as it is so an
open concept. But as a judge i am in favor of
human dignity, because sometimes you feel
that something is wrong and you don't have
a very strong legal argument. -> you can use
human dignity to file lacune ( but it is very
dangerous and you must be very careful)
The essential features of HR
● universality of HR?
○ At first sight : logic to say that HR are rights that people enjoy because of their humanity
and that they thus are universal
○ -> BUT : debate : are all human rights all over the world equally important?
■ -> universal character is not that easily defendable, human rights are always
developing over the time … ( see next chapter)
● Absolute character of HR?
○ Theory? consequence of the idea that they are the highest norms in the legal order ->
After all, if human rights are the highest norm, no norm can be above them, set them
aside, restrict, or limit them.
○ BUT nuancering : as we will see when discussing the ECHR mechanism at length, HR
themselves are seldom supposed to be absolute…
■ Eg : Some abs HR : the anti-torture provision (Article 3 ECHR) , anti-slavery
provision
■ but most HR are not abs….
, ● Eg: Apart from the notstandfeste rights ( which cannot be suspended in
times of emergency )the other rights can be suspended (Article 15) in
exceptional circumstances.
● Eg: in normal times most rights can be restricted, either on the basis of
an explicit provision (the second paragraphs of Articles 8-11) allowing for
this, or on the basis of implicitly accepted limitations.
● 3. The inalienable character of HR
○ = It indicates that individuals cannot be deprived of their fundamental rights.
■ BUT ! be careful: It does not imply that human rights cannot be, in certain
contexts, to certain extents, be suspended, conditioned or restricted. (Eg: when
prisoners are deprived of their freedom, political rights can be restricted
depending on national status,.. )
○ -> extra Question: Can individuals waive their FR?
■ YES : under certain circumstances, they can renounce the protection of their FR.
( eg confidentiality clauses in contracts are restrictions on freedom of expression,
accepting cookies is accepting interferences with data protection)
■ Functioning? The wider the scope of human rights is defined - due inter alia to
the dynamic interpretation – the more likely it is that holders of rights will
renounce the protection of the right (because there are overriding interests)
● -> What is in any event impossible, is that waivers are blank clauses,
without limitations in time, covering all the rights at stake !!!
■ In other words ( see class ): debate on waiving FR?
● see art 6 of the old napoleonic civil code : you cannot agreements that
would go against public morality ( “de goede zeden”) and that would go
against the legal order ( “ l'ordre public”)
● -> if human rights are those essential principle of the legal order : you
must be frustrated because in that understanding you cannot make
agreements with your human rights ( no contracts about HR ) -> people
are contracting all the time on issues on the legal order, people
constantly waive their HR
○ eg concluding an agreement “ you will be working during .. hours
as a professor at the university about a specific topic” : could be
seen as waiving HR ( waiving your freedom of speech)
● -> in the reality : lot of agreement that we are making concerning HR
● -> SO : idea : not that you cannot make agreement involving your HR,
idea is that you cannot wise them entirely without in implicit / general way
paying attention to the circumstances in wich it is done
○ -> make clear that you perfectly know what the consequence is
of waiving those rights? -> “informed consent”
● HR are an indivisible whole
○ = several “generations” of HR -> all HR are interconnected -> no category is more
important than another!!
History of Human Rights
● The way we are describing human rights , is that if we want to understand human rights we have
to read text
○ => history : human rights are essentially historical
■ = in the past, a lot of things that we call HR today, were already protected but not
another under the HR concept such as we are using today
, ● -> to understand the modern concept of HR : go to the modern area and
it predecessors
○ see the medieval charters :
■ the magna charta= the oldest known HR document ->
there were older versions BUT we lost them
● the charter van kortenberg, de blijde inkomst,
○ = those charter limit the powers of those
that are in power & give rights to some
categories of citizens ( eg : orpheans,
widows,...)
○ french / Am revolution ( = important!)
■ = a profound critical reflection on what is state power /
what is it to be governments ( <-> medial charter)
● eg: How can we explain that some people can put
some obligations on others? what are the limits of
sovereignty
● -> is there are sphere of freedom inherent to
anyone in which rules cannot just enter?
● = forcing authorities to explain why they have
authority and by not accepting anymore the
traditional idea of king authority because gave it
to you
○ extra see Grotius : “ even if god would be there” -> lets live
religion outside of the discussion
■ -> “ déclaration des droits de l’homme et du citoyen”
● = human rights are not anymore the rights of a
very specific group of the society, but now they
are the right of everyone ( the right of the man
and its citizens )
○ -> everyone is born equal before the law
■ => the idea of a catalog of rights is becoming in the 19
th century incredible popular ( see constitutions where
the constitutional rights are protected)
● -> what we see : rights protected as
constitutional rights ( rights that are protected by
the national states)
● -> this can work BUT problem? ->
○ those that are supposed to protect you
are also those who can potential breach
your rights
● -> next question : what if the state fails?
○ -> challenging theoretical ideas !!
○ end of WWII : idea that you need something more : state always
are the pragmatic players in the system, but we need something
more if state failed
■ -> we need 2 things : international standards ( that go
beyond the national standards) and international values
● = that system is not supposed to act primarily
( that is not the first place you go : you go only to
